Split (1)

validation · 4k rows

text stringlengths 78 10.7k	synonym_substitution stringlengths 75 10.5k	butter_fingers stringlengths 78 11.1k	random_deletion stringlengths 52 9.4k	change_char_case stringlengths 78 10.7k	whitespace_perturbation stringlengths 77 10.9k	underscore_trick stringlengths 83 11.1k
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY February 8, 2018 2018COA12 No. 14CA0144, People v. Trujillo — Criminal Law — Sentencing — Probation — Indeterminate Sentence A division of the court of appeals considers whether a Colorado statute authorizes imposition of a sentence to an indeterminate term of probation and whether the defendant was entitled to the benefit of amendments to the statute criminalizing theft. Relying on People v. Jenkins, 2013 COA 76, 305 P.3d 420, the division concludes that section 18-1.3-202(1), C.R.S. 2017, provides statutory authority for the imposition of an indeterminate probation sentence. Following People v. Stellabotte, 2016 COA 106, ___ P.3d ___ (cert. granted Feb. 6, 2017), the majority further concludes that the defendant is entitled to the benefit of amendments to the theft statute. The partial dissent concludes that the amendments to the theft statute do not apply retroactively, and would therefore affirm the sentence in full. Additionally, the division rejects the defendant’s contentions that reversal is required due to the trial court’s rejection of defense-tendered jury instructions, wrongfully admitted character evidence, and prosecutorial misconduct. However, the division remands for the trial court to make findings of fact concerning the assessment of the costs of prosecution. Accordingly, the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case with directions. COLORADO COURT OF APPEALS 2018COA12 Court of Appeals No. 14CA0144 Mesa County District Court No. 11CR447 Honorable Valerie J. Robison, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Michael Floyd Trujillo, Defendant-Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TAUBMAN Richman, J., concurs Furman, J., concurs in part and dissents in part Announced February 8, 2018 Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Floyd Trujillo, appeals his judgment of conviction entered on a jury verdict finding him guilty of one count of theft of more than $20,000 and one count of criminal mischief of $20,000 or more. He also appeals his sentence. We perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regarding the assessment of the costs of prosecution and to reclassify his theft conviction as a class 4 felony. I. Background ¶2 In 2007, Trujillo began building a home, doing much of the labor himself and initially using his own money to fund the project. He later took out a construction loan from the victim, a bank, for just under $255,000. After construction was completed on the house, Trujillo stopped making his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings in September 2010. ¶3 Before the foreclosure sale, Trujillo removed or destroyed property in the house, including kitchen cabinets, countertops, interior and exterior doors, doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails, the boiler, the air conditioner, and the garage door. 1 Because of this damage, the house was appraised at $150,000; however, the appraiser estimated that if the house were in good repair, it would have been worth $320,000. ¶4 Trujillo was charged with defrauding a secured creditor, theft of $20,000 or more, but less than $100,000, and criminal mischief of $20,000 or more, but less than $100,000. The jury found him not guilty of defrauding a secured creditor and guilty of theft and criminal mischief. ¶5 On appeal, Trujillo raises six contentions: (1) the trial court erred in rejecting defense-tendered jury instructions; (2) the trial court erred in allowing evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness and closing rebuttal argument warrants reversal; (4) the trial court imposed an illegal sentence of indeterminate probation; (5) the trial court erred in awarding the People costs of prosecution; and (6) an amendment to the theft statute applies to his conviction. We perceive no basis for reversal with respect to the first four contentions, but agree with Trujillo’s final two contentions. We therefore affirm the convictions and the sentence in part but vacate the sentence in part and remand with directions. 2 II. Jury Instructions ¶6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory of the case. We disagree. A. Additional Facts ¶7 Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. The defense tendered five jury instructions related to this theory of the case. ¶8 Trujillo’s tendered jury instructions detailed property law concepts. For example, the first tendered instruction stated that “the person who has title to real property is still the owner of the property even if there is a lien or secured interest on the property.” Another tendered instruction defined “title,” “deed of trust,” and “holder of a certificate of purchase[].” One instruction described the lien theory detailed in section 38-35-117, C.R.S. 2017, and another instructed that title to property “does not vest with the purchaser until eight days after [a] foreclosure sale.” ¶9 The trial court declined to give these instructions as tendered. However, portions of the defense-tendered instructions were 3 included in a final definitional jury instruction. The final instructions defined “deed of trust” and stated that the title to property is transferred to the holder of the certificate of purchase eight days after a foreclosure sale. Though it rejected other portions of the defense-tendered instructions, the trial court permitted defense counsel to argue the issues raised in the instructions during closing argument. ¶ 10 The defense also tendered an instruction which the trial court modified and gave as a theory of the case instruction. That instruction stated, “Trujillo contends that the items removed from the home . . . were his; purchased by him and installed by him. . . . Trujillo conten[d]s that the items that he took and damaged were his sole property.” B. Standard of Review ¶ 11 We review jury instructions de novo to determine whether, as a whole, they accurately informed the jury of the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructions properly inform the jury of the law, the district court has “broad discretion to determine the form and style of jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4 Accordingly, we review a trial court’s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12 When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if “there is not a reasonable probability that the error contributed to the defendant’s conviction.” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). C. Applicable Law	the summaries of the colorado court of appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. the quotes may not be cited or relied upon as they are not the official language of each division. any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. summary february 8, 2018 2018coa12 no. 14ca0144, people v. trujillo — criminal law — sentencing — probation — indeterminate sentence a division of the court of appeals considers why a colorado statute authorizes imposition of a sentence to an indeterminate term of probation and whether the defendant was entitled to the benefit of amendments to the statute criminalizing theft. relying on people v. jenkins, 2013 coa 76, 305 p. 3d 420, the division concludes that section 18 - 1. 3 - 202 ( 1 ), c. r. s. 2017, provides statutory authority for the imposition of an indeterminate probation sentence. following people v. stellabotte, 2016 coa 106, _ _ _ p. 3d _ _ _ ( cert. granted feb. 6, 2017 ), the majority further concludes that the defendant is entitled to the benefit of amendments to the theft statute. the partial dissent notes that the amendments to the theft statute do not apply retroactively, and would therefore affirm the sentence in full. additionally, the division rejects the defendant ’ s contentions that reversal is required due to the trial court ’ s rejection of defense - tendered jury instructions, wrongfully admitted character evidence, and prosecutorial knowledge. however, the division remands for the trial court to make findings of fact concerning the assessment of the costs of prosecution. accordingly, the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case with directions. colorado court of appeals 2018coa12 court of appeals no. 14ca0144 mesa county district judges c. 11cr447 honorable valerie j. robison, judge the people of the state of colorado, plaintiff - appellee, v. michael floyd trujillo, defendant - appellant. judgment affirmed, sentence affirmed in part and vacated in part, and case continued with directions division i opinion by judge craig richman, sec., concurs furman, j., concurs in part and dissents in part announced february 8, 2018 cynthia h. coffman, attorney general, joseph g. michaels, assistant attorney general, denver, colorado, for plaintiff - appellee douglas k. wilson, colorado state public defender, james s. hardy, deputy state public defender, denver, colorado, for defendant - appellant ¶ 1 defendant, michael floyd trujillo, appeals his judgment of conviction entered on a jury verdict finding him guilty of one count of theft of more than $ 20, 000 and one count of criminal mischief of $ 20, 000 or more. he also appeals his sentence. we perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regarding the assessment of the costs of prosecution and to reclassify his theft conviction as a class 4 felony. i. background ¶ 2 in 2007, trujillo began building a home, doing much of the labor himself and initially using his own money to fund the project. he later took out a construction loan from the victim, a bank, for just under $ 255, 000. after construction was completed on the house, trujillo stopped making his monthly loan payments. the bank declined to restructure the loan and initiated foreclosure proceedings in september 2010. ¶ 3 before the foreclosure sale, trujillo removed or destroyed property in the house, including kitchen cabinets, countertops, interior and exterior doors, doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails, the boiler, the air conditioner, and the garage door. 1 because of this damage, the house was appraised at $ 150, 000 ; however, the appraiser estimated that if the house were in good repair, it would have been worth $ 320, 000. ¶ 4 trujillo was charged with defrauding a secured creditor, theft of $ 20, 000 or more, but less than $ 100, 000, and criminal mischief of $ 20, 000 or more, but less than $ 100, 000. the jury found him not guilty of defrauding a secured creditor and guilty of theft and criminal mischief. ¶ 5 on appeal, trujillo raises six contentions : ( 1 ) the trial court erred in rejecting defense - tendered jury instructions ; ( 2 ) the trial court erred in allowing evidence of a prior foreclosure against trujillo ; ( 3 ) prosecutorial misconduct during direct examination of a witness and closing rebuttal argument warrants reversal ; ( 4 ) the trial court imposed an illegal sentence of indeterminate probation ; ( 5 ) the trial court erred in awarding the people costs of prosecution ; and ( 6 ) an amendment to the theft statute applies to his conviction. we perceive no basis for reversal with respect to the first four contentions, but agree with trujillo ’ s final two contentions. we therefore affirm the convictions and the sentence in part but vacate the sentence in part and remand with directions. 2 ii. jury instructions ¶ 6 trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory of the case. we disagree. a. additional facts ¶ 7 throughout trial, the defense ’ s theory of the case was that trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. the defense tendered five jury instructions related to this theory of the case. ¶ 8 trujillo ’ s tendered jury instructions detailed property law concepts. for example, the first tendered instruction stated that “ the person who has title to real property is still the owner of the property even if there is a lien or secured interest on the property. ” another tendered instruction defined “ title, ” “ deed of trust, ” and “ holder of a certificate of purchase [ ]. ” one instruction described the lien theory detailed in section 38 - 35 - 117, c. r. s. 2017, and another instructed that title to property “ does not vest with the purchaser until eight days after [ a ] foreclosure sale. ” ¶ 9 the trial court declined to give these instructions as tendered. however, portions of the defense - tendered instructions were 3 included in a final definitional jury instruction. the final instructions defined “ deed of trust ” and stated that the title to property is transferred to the holder of the certificate of purchase eight days after a foreclosure sale. though it rejected other portions of the defense - tendered instructions, the trial court permitted defense counsel to argue the issues raised in the instructions during closing argument. ¶ 10 the defense also tendered an instruction which the trial court modified and gave as a theory of the case instruction. that instruction stated, “ trujillo contends that the items removed from the home... were his ; purchased by him and installed by him.... trujillo conten [ d ] s that the items that he took and damaged were his sole property. ” b. standard of review ¶ 11 we review jury instructions de novo to determine whether, as a whole, they accurately informed the jury of the governing law. riley v. people, 266 p. 3d 1089, 1092 - 93 ( colo. 2011 ). if the jury instructions properly inform the jury of the law, the district court has “ broad discretion to determine the form and style of jury instructions. ” day v. johnson, 255 p. 3d 1064, 1067 ( colo. 2011 ). 4 accordingly, we review a trial court ’ s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair. id. ¶ 12 when a defendant objects to the trial court ’ s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if “ there is not a reasonable probability that the error contributed to the defendant ’ s conviction. ” people v. garcia, 28 p. 3d 340, 344 ( colo. 2001 ) ( quoting salcedo v. people, 999 p. 2d 833, 841 ( colo. 2000 ) ). c. applicable law	The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official lang&aTe of the division. Any discrepancy between the language in the s8mmWry and in the opinion should be resolved in favor of the language in the opinion. SUMMARY February 8, 2018 2018COA12 No. 14CA0144, People v. Trujillo — Criminal Law — Sentencing — Probation — Indeterminate Sentence A division of the court of appeals considers whether a Colorado statute authorizes imposition of a sentence to an indeterminate term of probation and whether the defendant was entitled to the benefit of amendments to the statute criminalizing theft. Relying on People v. Jenkins, 2013 COA 76, 305 P. 3d 420, the division concludes that section 18 - 1. 3 - 202 (1 ), C. R. S. 2017, provides statutory authority for the imposition of an indeterminate probation sentence. Following People v. Stellabotte, 2016 COA 106, ___ P. 3d ___ (cert. granted Feb. 6, 2017 ), the majority further concludes that the defendant is entitled to the benefit of amendments to the theft statute. The partial dissent concludes that the amendments to the theft statute do not apply retroactively, and would therefore affirm the sentence in full. Additionally, the division rejects the defendant ’ s contentions that reversal is required due to the trial court ’ s rejection of defense - tendered jury instructions, wrongfully admitted character evidence, and prosecutorial misconduct. However, the division remands for the trial court to make findings of fact concerning the assessment of the costs of prosecution. Accordingly, the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case wo5h directions. COLORADO COURT OF APPEALS 2018COA12 Court of Appeals No. 14CA0144 Mesa County District Court No. 11CR447 Honorable Valerie J. Robison, Judge The People of the State of Colorado, Plaintiff - Appellee, v. Michael Floyd Truj8ll), Defendant - Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JkDGD TAUBMAN Richman, J. , concurs Furman, J. , concurs in part and dissents in part Announced February 8, 2018 Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff - Appellee Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant - Appellant ¶ 1 Defendant, Michael Floyd Trujillo, appeals his judgment of conviction entered on a jury verdict finding him guilty of one count of theft of more than $ 20, 000 and one count of criminal mischief of $ 20, 000 or more. He also appeals his sentence. We perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regarding the assessment of the costs of prosecution and to reclassify his rheet conviction as a class 4 felony. I. Background ¶ 2 In 2007, Trujillo began building a home, doing much of the labor himself and initially using his own money to fund the project. He later took out a construction loan from the victim, a bank, for just under $ 255, 000. After construction was completed on the house, Trujillo stopped making his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings in September 2010. ¶ 3 Before the foreclosure sale, Trujillo removed or destroyed property in the house, including kitchen cabinets, countertops, interior and exterior doors, doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails, the boiler, the air conditioner, and the garage door. 1 Because of this damage, the house was appraised at $ 150, 000; however, the appraiser estimated that if the house were in good repair, it would have been worth $ 320, 000. ¶ 4 Trujillo was charged with defrauding a secured creditor, theft of $ 20, 000 or more, but less than $ 100, 000, and criminal mischief of $ 20, 000 or more, but less than $ 100, 000. The jury found him not guilty of defrauding a secured creditor and guilty of theft and Dr7minal mischief. ¶ 5 On appeal, Trujillo raises six contentions: (1) the trial court erred in rejecting defense - tendered jury instructions; (2) the trial court erred in allowing evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness and closing rebuttal argument warrants reversal; (4) the trial court imposed an illegal sentence of indeterminate probation; (5) the trial court erred in awarding the People costs of prosecution; and (6) an amendment to the theft statute applies to his conviction. We perceive no basis for reversal with respect to the first four contentions, but agree with Trujillo ’ s final two contentions. We therefore affirm the convictions and the sentence in part but vacate the sentence in part and remand with directions. 2 II. Jury Instructions ¶ 6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory of the case. We disagree. A. Additional Facts ¶ 7 Throughout trial, the defense ’ s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. The defense tendered five jury instructions related to this theory of the case. ¶ 8 Trujillo ’ s tendered jury instructions detailed property law concepts. For example, the first tendered instruction stated that “ the person who has title to real property is still the owner of the property even if there is a lien or secured interest on the property. ” Another tendered instruction defined “ title, ” “ deed of trust, ” and “ holder of a certificate of purchase []. ” One instruction described the lien theory detailed in section 38 - 35 - 117, C. R. S. 2017, and another instructed that title to property “ does not vest with the purchaser until eight days after [a] foreclosure sale. ” ¶ 9 The trial court declined to give these instructions as tendered. However, portions of the defense - tendered instructions were 3 included in a final definitional jury instruction. The final instructions defined “ deed of trust ” and stated that the title to property is transferred to the holder of the certificate of purchase eight days after a foreclosure sale. Though it rejected other portions of the defense - tendered instructions, the trial court permitted defense counsel to argue the issues raised in the instructions during c>(sing argument. ¶ 10 The defense also tendered an instruction which the trial court modified and gave as a theory of the case instruction. That instruction stated, “ Trujillo contends that the items removed from the home. .. were his; purchased by him and installed by him. .. . Trujillo conten [d] s that the items that he took and damaged were his sole property. ” B. Standard of Review ¶ 11 We review jury instructions de novo to determine whether, as a whole, they accurately informed the jury of the governing law. Riley v. People, 266 P. 3d 1089, 1092 - 93 (Colo. 2011 ). If the jury instructions properly inform the jury of the law, the district court has “ broad discretion to reterJine the form and style of jury instructions. ” Day v. Johnson, 255 P. 3d 10u$, 1067 (Colo. 2011 ). 4 Accordingly, we review a trial court ’ s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12 When a defendant objects to the trial court ’ s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if “ there is not a reasonable probability that the error contributed to the defendant ’ s conviction. ” People v. Garcia, 28 P. 3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P. 2d 833, 841 (Colo. 2000) ). C. Applicable Law	The summaries of the Colorado of Appeals published opinions constitute no part of the opinion the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as are not the official of the division. Any discrepancy between language in the summary in the opinion should be resolved in favor the in opinion. SUMMARY February 8, 2018 2018COA12 14CA0144, People v. — Criminal Law — Probation — Indeterminate Sentence A division of the court of appeals considers whether a Colorado statute authorizes imposition of a sentence to an indeterminate term of whether the defendant was entitled to the benefit of amendments to the criminalizing theft. on People v. Jenkins, 2013 COA 76, 305 P.3d 420, the division concludes that section 18-1.3-202(1), C.R.S. 2017, provides statutory authority for imposition of an indeterminate probation sentence. Following People v. Stellabotte, 2016 COA 106, ___ P.3d ___ (cert. granted Feb. 6, 2017), the majority further concludes that the defendant is to the benefit amendments to the theft statute. The partial dissent concludes that the amendments to the theft statute do apply retroactively, and therefore affirm the sentence in full. Additionally, the rejects the defendant’s contentions that reversal is required due to the trial court’s rejection of defense-tendered jury instructions, character evidence, and prosecutorial misconduct. However, the division remands for the trial court make findings of fact concerning the assessment of the costs of prosecution. the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case with COLORADO COURT OF 2018COA12 Court of Appeals Mesa County Court No. 11CR447 Honorable Valerie J. Judge The the State Colorado, Plaintiff-Appellee, v. Michael Floyd Trujillo, Defendant-Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TAUBMAN Richman, J., concurs Furman, J., concurs in part dissents in part Announced February 8, Cynthia H. Coffman, General, G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Colorado, for Defendant-Appellant ¶1 Defendant, Trujillo, appeals his judgment of conviction on a jury verdict finding him guilty of one count of theft of more than $20,000 and one count of criminal mischief of $20,000 or more. He also his sentence. We no basis for reversing his convictions, but remand for the trial court to make findings of fact regarding the assessment of the costs of prosecution and to his theft conviction as a class 4 felony. I. Background ¶2 In 2007, began building a home, doing of the labor and his own money to the project. He later took out a construction loan from victim, a for just under $255,000. After construction was completed on the house, Trujillo making his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings September the foreclosure sale, Trujillo removed or destroyed in house, including kitchen cabinets, countertops, interior and exterior doors, doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails, the boiler, the air conditioner, and the garage door. 1 Because of damage, house was at $150,000; however, the appraiser that if the house were in good repair, have been worth $320,000. ¶4 Trujillo was charged with defrauding a secured creditor, theft of $20,000 more, but less than $100,000, and criminal mischief of $20,000 or more, but less $100,000. The jury found him not guilty of defrauding a secured creditor and guilty theft and criminal mischief. ¶5 On appeal, Trujillo raises six contentions: (1) the trial erred in rejecting defense-tendered jury instructions; (2) the trial court erred in allowing evidence of foreclosure against Trujillo; (3) prosecutorial misconduct during examination of a witness and closing rebuttal argument warrants reversal; (4) the trial court imposed an sentence of indeterminate probation; (5) the trial court erred in awarding the People costs of prosecution; and (6) amendment the theft statute applies to his We perceive no basis for reversal with respect to the first four contentions, but agree with Trujillo’s final two contentions. We therefore affirm the convictions and the sentence in part vacate the sentence in part and remand with 2 II. Jury Instructions ¶6 Trujillo asserts trial court erred in rejecting various jury instructions regarding his theory of the case. We disagree. A. Additional Facts ¶7 Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed the house belonged to him. The tendered five instructions related to this theory of the case. ¶8 Trujillo’s tendered jury instructions detailed property law concepts. For example, the first instruction stated “the person who has title to real property is still the owner of the property even if there is a lien or secured interest on the property.” Another tendered instruction “title,” “deed of trust,” and “holder of a certificate of One instruction described the lien theory detailed in section another instructed title to property “does not vest with the purchaser until eight days [a] foreclosure sale.” The trial court declined to these instructions tendered. However, portions of instructions were 3 included in a final definitional jury instruction. The final defined of trust” and stated that title to property transferred to the holder of the certificate of purchase eight days a foreclosure sale. Though it rejected other portions of the defense-tendered instructions, permitted defense counsel argue the issues raised in the instructions during closing argument. ¶ 10 The defense also tendered an instruction which the trial court modified and as a theory of the That instruction stated, “Trujillo contends that the items from the . . . were his; purchased by him and installed by him. . . . Trujillo conten[d]s that the items that he took and damaged were his sole property.” B. Standard of Review ¶ 11 We review jury instructions de novo determine whether, as a whole, they accurately informed jury of the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructions properly inform the of the law, the district court has “broad to determine the form and style of jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4 Accordingly, we review a trial court’s concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12 When a defendant objects to the trial ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if not a reasonable probability that the error contributed to the defendant’s conviction.” People v. Garcia, 28 P.3d 340, 344 (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). Applicable Law	THe SUMmaRIES oF ThE cOLOrADO court Of aPPEAls PUBLisHed OpiniOnS cOnSTituTE No ParT of the oPInIOn oF the diviSioN BUT HaVE beEn pREPAReD by the Division for thE cONveNIence oF The readeR. tHe SUmMAries MAy nOT BE cITeD Or ReliED uPOn As ThEy ARE Not THE OFficIAl LangUaGE OF tHe diVISion. AnY DISCRepanCY betwEEn tHe LANgUaGE iN tHE SummARy and IN the opInIon SHoulD bE REsoLVED in FaVor of thE laNguAGe In tHe OPIniON. Summary FebRuarY 8, 2018 2018coa12 nO. 14ca0144, PEople V. TRujILlO — CrimiNaL Law — senteNCInG — pRobaTiOn — INdeTERMInATE SenTEncE A dIviSION oF ThE court of appeALs CoNsiders wHether A COlOrAdo StaTuTE AuthOrizEs IMpOsITIon oF A SeNteNCE tO aN INdEtERMInAte teRm Of PROBATIoN and wHeThEr The DEFeNdanT wAs eNtItlEd To ThE bENEFit OF AMENdmENts to tHE stATute cRIMiNaliZiNg tHeft. RELyIng ON peOPLE V. jEnkINs, 2013 coA 76, 305 P.3D 420, ThE DivIsIon cOnClUdeS tHAt sECTIoN 18-1.3-202(1), C.r.s. 2017, PROVidEs STAtutOrY aUtHORItY FoR thE iMpOSITion oF an iNdeterMinate probatiOn sentENcE. FOllowING peoPlE V. stelLaBOTTe, 2016 Coa 106, ___ p.3D ___ (CERT. grAnteD FeB. 6, 2017), tHE MaJORiTY FURTHER cONCLUDEs tHAt thE DEFeNdant Is eNTITLEd to THE beNeFit OF amenDMentS TO THe THEft StATutE. tHE PartIAL dIssEnt concLuDes ThaT thE amENDMenTs To THe ThEFt sTatutE dO nOt ApPlY rETroACTIVELy, AND WoULd ThEReforE affiRM tHE sENTeNCE in Full. addItIonAlLy, tHe dIvISiOn ReJeCtS thE DEfEndANT’s ContentioNS tHaT reVERsal IS REqUiREd duE to thE tRiAL cOUrt’S REjecTIoN OF deFeNse-tendERED JUry insTructiOnS, WroNgfUllY ADMitTed CHArACTER eVIDeNcE, And pROsECutORiAL miScoNDUcT. hOWEVer, tHE dIviSIOn rEmaNDs foR THE TRiAl CoUrT TO MAKe FindInGS oF FAct COnCERninG tHe AsSEsSmeNT OF tHe costS Of prosECUtIOn. ACCORdingLy, thE diVIsion aFFiRms tHE cOnVIcTIoN, AffIrMS The SenTeNCe in PARt, VaCAtes THE seNtenCe IN part, And rEmaNdS the cAse wITH dIRectIoNs. COlOrado CoURT of aPPeaLs 2018COA12 cOurT oF ApPeaLs no. 14Ca0144 mesa cOuNTy diSTrIcT COUrt NO. 11CR447 HOnorabLe valErie J. ROBIson, jUDGE the peoPLE oF The statE oF cOLOradO, plaIntiff-AppelLeE, V. mICHAeL FlOyd TrujILLo, dEFENdANt-APpELlaNT. JUDGmEnt aFFIRmEd, SENTeNcE AffiRmEd in pARt anD VACaTED IN PART, aNd CaSe REManDeD WiTh DirECtions DIVisioN I oPiNiOn by JUDGe TaubMan RIchMAn, j., ConcUrs FuRMan, j., COnCUrS In pArT aNd dISSENtS iN PArT aNnoUnCed fEbRuArY 8, 2018 CYNthIa h. CoFfMAn, ATTornEy GENeraL, jOSEPh g. MiCHAELs, AsSiStANT ATTORNEY geNeRaL, deNVeR, ColOraDO, for PLAintIff-APpELlEE DOUGLAS k. wiLSON, cOLoRaDO StATe PUblIC DEfEnDEr, JamES s. harDY, DEPutY state PUblIC DEfeNDeR, deNveR, cOlorAdo, fOR deFEndaNt-aPPEllANt ¶1 dEfeNdANt, MicHAel fLoYD tRujIllo, ApPeAlS HIS judGmeNt Of conViCtiON eNTereD on A JUry vERDIct FIndinG Him GUIlty of OnE coUnT Of ThEFT oF mORe THAn $20,000 aNd OnE coUNT Of criMINal MiScHIeF OF $20,000 or mORE. hE also ApPeaLs hiS sentEnCE. We PercEIve No BAsIS fOr ReVerSing hIS cONvICtIONS, but rEmAnd foR the tRIAL coUrt to mAke finDings Of FACt ReGardING The ASseSsMENT OF THE costS OF PrOSEcuTiOn AND TO rEclassIfy HiS tHEfT ConvIcTioN AS a cLaSs 4 feLONy. I. BAcKgrOUnd ¶2 In 2007, TrUJiLlO BEgaN BuilDINg a hoME, doIng mucH oF THE lAbOr hiMsELF And InITially USiNG HIS OwN moNEY tO FuNd tHe prOJecT. He lATer toOk OuT a ConStRuCTiON LOaN FROM ThE vIctIm, a bAnk, For juSt UNdEr $255,000. AFtEr consTRuCTION WaS COMpleted On ThE hOUSe, Trujillo sTOpPeD Making hIS mONThlY lOaN PAyMenTs. THe BANK DeClINED To RESTRuctURE THe LoAN anD INitiatEd fOReCLoSure proCeEdiNGS in SEPTEmbEr 2010. ¶3 BeFOre THE FOReCLOSUre sAle, trUJilLo REmoVed Or DEsTrOYed pRoPERTY In thE houSE, INcLudinG kiTcHEN CaBInETS, counterTOps, iNteRior And ExTeRIoR DOors, dOORjAMBS aND caSIngS, FLOoRing, BaSEbOARds, lIght fIxtureS, BatHRooM FIxTUREs, THE FiREPlAce, hAndraILs, thE BoIlEr, the aiR CoNDItIOneR, And the GArAge DOor. 1 BECaUsE Of this dAMagE, ThE HouSE WAs apPRAiSEd At $150,000; HoWEVeR, ThE appraiSer EsTIMAteD tHAT iF tHE HOuSE weRe In goOD RepaIr, it wOuLD HAve bEEN WOrTH $320,000. ¶4 truJilLo WaS chArged witH DefraUDiNg a SeCuRed cREDitOR, THeFt OF $20,000 or More, BUt LEsS THAn $100,000, aNd CriMINAl MiSchiEf oF $20,000 Or MorE, BUt lESS than $100,000. ThE jUry fOUNd HIm NoT GuIlTy of DefRAUdIng A SeCurED crEDITor And GUiltY OF ThEFt And CrimiNaL MiSchiEf. ¶5 oN AppEaL, TrUJilLo raiSES sIx cOntEntIOnS: (1) thE tRiAL coURT erReD In reJECtInG dEFEnse-tEnDeRED jurY inSTRUctiOns; (2) thE trial coUrT ERred in AllOWing EviDEnCe OF a prIor forEcLOSUrE aGAINST trujIllo; (3) PRosEcUTOriaL MisConDUcT duRing DIRect EXaMiNatIon oF a wItneSS anD clOSINg RebUtTAl arGUMENT WArrANTs reVERsal; (4) tHE TRiaL cOUrT ImpOsED AN iLlEGaL SENTEnce OF iNdEterMInaTE PrObatiOn; (5) THe trIAl couRt ERREd In awaRding thE pEOpLe CoStS of PrOSECUTiON; ANd (6) AN AmENDMENt tO ThE ThEFt staTUte aPPLies to His COnviCtiOn. WE peRCEive nO bAsiS for ReverSal WiTH REspeCT To the fIRsT foUr CONTeNtioNS, buT AgrEE WiTH tRUjilLo’s FINAl TWO cOnTenTIons. wE TheRefOre afFiRM the CONViCtions and tHe SeNTenCe in PArT BUt vACAtE tHE SenTENce In PaRT anD ReMAnd with DireCTIONs. 2 Ii. juRy iNsTRuctioNS ¶6 TrUjIllo asSerTS tHaT thE tRIaL cOuRT erreD In REJectINg VARIOus JUrY inSTruCTiOns REGArDInG HiS theORY OF The casE. wE DIsAGrEE. a. ADDitIONAL FacTs ¶7 THrougHOuT tRIal, tHe DefeNSe’s THEoRy OF THE cAse was thAT TrUjIllo LaCked THE rEQuISitE intENT tO cOMmIt THe CharGed ofFenSEs beCaUsE he bElIeved thaT the PRopErTy He reMoveD frOm The hOUSe BeLONGED tO HIm. the dEFEnSE tENdEReD fIve jUrY InStrUCtions RELateD to tHIS THeoRy Of tHe CASe. ¶8 tRUjilLo’S teNDereD JurY INSTRUcTiONs DEtAILED pRopeRty lAw ConCEpTS. fOr ExAmplE, THE firsT tenDERed iNStructIon STateD THAT “THe PERsOn Who HAs tITLe to ReAl pRopeRTy IS StILl tHE OwneR oF the pRopERtY eVeN if tHerE Is A LIEN OR sEcUrEd iNterEST oN ThE prOpErtY.” aNOtHeR TEndErEd iNSTRUCtioN DefINEd “TITLE,” “deED oF truSt,” And “HoldEr Of a ceRTifIcAte oF purChAsE[].” onE inSTrUctIOn deSCRibed thE liEn THeORY DeTaIlED In SeCtION 38-35-117, C.r.s. 2017, aNd aNoThEr INstRUCTeD tHAT tItLE To proPERtY “DOEs noT VesT wiTh thE purChaseR UNTIl eigHt DAys aFTer [A] foREcLosurE Sale.” ¶9 the tRIal courT DEclInEd tO GIve ThESe InSTRuctioNS aS teNDEreD. hoWEvEr, PORTIONs of ThE DeFense-tENdERED iNSTrUcTIONS wERE 3 IncluDEd iN A fINal deFInITioNAl juRy INstrUCTIOn. THE FInal iNsTRuCtiONS defInED “deEd Of truST” AnD sTated THAt tHE TITle TO pROPeRTy Is traNsFerrEd to ThE HoldEr OF tHe certiFIcatE oF puRcHAsE EiGhT DaYs aFtER a FOREClOsure saLe. thouGh It ReJEcteD OTheR PorTIOns Of ThE DEfENsE-TEnDeReD InSTRuctIOnS, The TRIal CouRT pErMItTed dEfENse COUnseL To aRGUE tHe iSsueS RaisEd in The InsTRUCTIOns dUrInG ClOsiNG ArGUmEnT. ¶ 10 tHE dEFenSE also teNdereD an inSTRuCtIon WHicH thE TRiAl cOurT modifIeD ANd gaVe AS A thEORy of the CAse iNsTrucTioN. tHAT INsTruCTIOn STaTeD, “tRuJiLlO ContEnDS thaT ThE iTEmS REMoVED froM THe HOmE . . . wEre His; PUrCHASED BY HiM aNd InStALLEd bY Him. . . . TruJIllO cOnteN[D]S That The iTEmS That hE toOk aND DAmaGeD werE His SOlE PrOperty.” b. staNDaRD Of rEVIEW ¶ 11 We revIew jURY inSTructIonS dE nOVO tO dETERmiNe wHEtHeR, AS a WholE, They AcCURATELY iNfORMeD tHe juRy oF tHE govERNIng laW. RIley v. pEoPle, 266 p.3d 1089, 1092-93 (cOLO. 2011). If THE jurY InStruCtiONs PrOpErLY InfoRm ThE jUrY of thE LAw, ThE DiSTRIcT COuRT hAs “bROAd diScrEtIon TO DEtErMiNE thE foRM And StyLE Of JURY iNsTRuCTIONs.” Day v. joHnsOn, 255 p.3d 1064, 1067 (colo. 2011). 4 aCcorDIngly, wE REVIEw a triAl CoURT’S deCisIoN coNCerNInG a pROposED jURy InStrUcTioN foR aN abUse of disCReTiOn and WilL nOT dIstURb tHe ruLINg unLEsS It iS mAnIfestly aRbITraRY, unreaSonabLe, oR UNFAir. ID. ¶ 12 WhEN A dEFENDaNt objeCtS To tHe triAl cOUrt’s ruLinG oN A Jury iNStRuCtIOn, We rEView fOr noncOnStitUTIonal HaRmLESs eRrOR anD wIll THUs afFiRm if “theRE IS NoT A rEasoNablE pRObAbILiTY that tHE Error contriBuTED To the DeFeNdAnt’s CONVICtIoN.” pEoplE V. gARCiA, 28 p.3D 340, 344 (cOLO. 2001) (qUOtiNG saLCEDO v. peopLe, 999 p.2d 833, 841 (cOlo. 2000)). C. apPlICAbLE LAW	Thesummaries of the Colorado Court of Appeals published opinions constitute no part ofthe opinion of the divisionbut have been prepared by the divisionfor the convenience of the reader. The summaries may notbe citedor relied upon as they are not the official languageof thedivision. Any discrepancy betweenthe languagein the summary and in the opinion should be resolved in favor of thelanguage in theopinion. SUMMARY February 8, 2018 2018COA12 No. 14CA0144, People v. Trujillo — Criminal Law —Sentencing —Probation — Indeterminate SentenceA division of the court ofappeals considerswhether a Colorado statute authorizesimposition ofa sentence to an indeterminate term of probationand whether the defendantwas entitled to the benefit of amendmentstothe statute criminalizing theft. Relying on People v. Jenkins, 2013 COA 76, 305P.3d 420, thedivision concludes that section 18-1.3-202(1),C.R.S. 2017, provides statutory authority for the imposition of an indeterminate probationsentence.Following People v. Stellabotte, 2016COA 106, ___ P.3d ___ (cert.granted Feb. 6, 2017), the majority further concludes that thedefendant is entitled to the benefit of amendments to the theft statute. The partial dissent concludes that the amendments to the theft statutedo not apply retroactively, and would therefore affirm the sentence in full. Additionally, the divisionrejects the defendant’s contentions that reversal is required duetothe trialcourt’s rejection of defense-tendered jury instructions,wrongfully admitted character evidence,andprosecutorial misconduct. However, the division remands for the trial court tomake findings of fact concerning the assessment of the costs of prosecution.Accordingly, the division affirms the conviction, affirms the sentence inpart, vacates the sentence in part,and remands the case with directions.COLORADO COURT OFAPPEALS 2018COA12 Court ofAppealsNo. 14CA0144 Mesa County DistrictCourt No. 11CR447 Honorable Valerie J. Robison, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Michael Floyd Trujillo,Defendant-Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TAUBMAN Richman, J., concurs Furman, J., concurs inpart and dissentsinpart Announced February 8, 2018 Cynthia H. Coffman, Attorney General, Joseph G. Michaels,Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, James S.Hardy, Deputy StatePublicDefender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant,Michael Floyd Trujillo, appeals his judgment of conviction entered ona jury verdict findinghim guilty of one count of theft of more than $20,000 andonecount of criminal mischief of $20,000 or more. Healsoappeals hissentence. We perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regardingthe assessment of the costs of prosecution and to reclassifyhistheft conviction as a class 4 felony. I. Background¶2 In 2007, Trujillo began buildingahome, doingmuch of thelabor himself and initiallyusinghis own money to fund the project. He later tookout a constructionloan from the victim, abank, for just under $255,000. After construction was completed on the house, Trujillo stoppedmaking his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings inSeptember2010. ¶3 Beforethe foreclosure sale, Trujillo removed or destroyed property in the house, including kitchen cabinets, countertops, interior and exterior doors,doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails,theboiler, the air conditioner,and the garage door. 1 Because of this damage,the house was appraisedat $150,000; however, the appraiser estimated thatif the housewere in good repair, it would have been worth $320,000. ¶4 Trujillo was charged with defraudinga secured creditor, theft of $20,000 or more, but lessthan $100,000, and criminal mischief of $20,000 or more, but less than $100,000.The juryfoundhim not guilty ofdefrauding a secured creditor and guilty of theft and criminal mischief.¶5 On appeal, Trujillo raises sixcontentions: (1) the trial court erred inrejecting defense-tendered jury instructions; (2) the trial courterred in allowing evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness and closing rebuttalargument warrants reversal; (4) thetrial court imposed an illegalsentence of indeterminate probation; (5) the trial courterred in awardingthe People costs of prosecution; and (6) an amendment to the theft statute applies to hisconviction. We perceive no basis for reversal withrespect to the first four contentions, butagree with Trujillo’s finaltwo contentions. We therefore affirm the convictions andthe sentence in part butvacate thesentence in part and remand with directions. 2 II. Jury Instructions ¶6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theoryof the case. Wedisagree.A. Additional Facts ¶7 Throughout trial, the defense’stheory of the case was that Trujillo lackedthe requisite intent to commit thecharged offenses because he believed that thepropertyhe removed from the house belonged to him.The defense tendered five jury instructions related to this theory of the case. ¶8 Trujillo’s tenderedjury instructions detailed property law concepts. For example,the first tendered instruction stated that “the person who has titleto real property is still theowner of the property even if there is a lienorsecured interest on the property.” Another tendered instruction defined “title,” “deed oftrust,” and “holder of a certificate of purchase[].” Oneinstruction described the lientheory detailed in section38-35-117,C.R.S. 2017, and another instructed that title to property “does not vest with thepurchaser until eight days after [a]foreclosuresale.” ¶9 Thetrial courtdeclined togivethese instructions as tendered. However, portions of the defense-tendered instructions were 3 includedin a final definitional jury instruction.The final instructions defined “deed of trust” and statedthat the title to property istransferred to the holderof the certificate of purchase eight days after a foreclosure sale. Thoughit rejected other portions of the defense-tendered instructions, the trial court permitted defense counsel to argue the issues raised in the instructions during closing argument. ¶ 10 The defensealso tendered an instruction which the trialcourt modified andgaveas a theory of the case instruction. That instruction stated, “Trujillo contends that the itemsremoved from the home .. . werehis; purchased by him and installedby him. . . . Trujillo conten[d]s that the items thathe took and damaged were his sole property.” B.Standard of Review ¶ 11 We review juryinstructions de novo todetermine whether,as a whole, they accurately informed the juryof the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructionsproperly inform the jury of thelaw,the district court has “broad discretionto determine the form andstyle of jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4 Accordingly, we reviewa trial court’s decision concerning a proposed jury instruction for an abuse of discretionand will not disturb the ruling unless itis manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if“there is not a reasonable probability that the errorcontributed to the defendant’s conviction.” People v. Garcia, 28P.3d 340, 344 (Colo. 2001)(quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). C. Applicable Law	_The_ _summaries_ _of_ _the_ Colorado Court of Appeals published opinions _constitute_ no _part_ of the _opinion_ _of_ _the_ _division_ but have been prepared by the _division_ for _the_ _convenience_ of the reader. _The_ summaries may not be cited or relied _upon_ as they are not the official language of the _division._ Any discrepancy between the language in the summary and in the opinion should be _resolved_ in _favor_ of _the_ language in the opinion. SUMMARY _February_ _8,_ 2018 2018COA12 No. 14CA0144, People v. Trujillo _—_ Criminal _Law_ — Sentencing _—_ Probation _—_ Indeterminate Sentence A _division_ of the court of appeals considers _whether_ a _Colorado_ statute authorizes _imposition_ of a sentence _to_ an indeterminate term of probation _and_ whether the _defendant_ was entitled to the benefit of amendments to _the_ statute criminalizing _theft._ _Relying_ on People v. Jenkins, 2013 COA _76,_ 305 P.3d 420, _the_ _division_ concludes that section 18-1.3-202(1), C.R.S. 2017, provides statutory authority for the imposition of an indeterminate _probation_ sentence. Following _People_ v. _Stellabotte,_ _2016_ COA _106,_ ___ _P.3d_ ___ (cert. granted _Feb._ 6, 2017), the _majority_ _further_ concludes that the defendant is _entitled_ to the benefit of amendments to _the_ theft _statute._ The partial _dissent_ concludes _that_ the _amendments_ to _the_ theft _statute_ _do_ not apply retroactively, and _would_ therefore affirm _the_ sentence _in_ _full._ Additionally, the _division_ _rejects_ the defendant’s _contentions_ that reversal _is_ _required_ due to the _trial_ court’s rejection of defense-tendered jury instructions, wrongfully _admitted_ _character_ evidence, _and_ prosecutorial misconduct. However, the division remands for the _trial_ court to make findings of fact concerning the assessment of the costs of prosecution. _Accordingly,_ _the_ division affirms the conviction, affirms _the_ sentence _in_ part, vacates the _sentence_ _in_ part, and remands the case with directions. COLORADO COURT OF APPEALS 2018COA12 Court of Appeals No. 14CA0144 Mesa County District Court _No._ 11CR447 _Honorable_ Valerie J. Robison, Judge The People _of_ _the_ State of Colorado, Plaintiff-Appellee, v. Michael Floyd _Trujillo,_ _Defendant-Appellant._ JUDGMENT _AFFIRMED,_ SENTENCE _AFFIRMED_ IN PART AND _VACATED_ IN PART, AND _CASE_ REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TAUBMAN Richman, _J.,_ concurs _Furman,_ J., concurs in part _and_ dissents in _part_ Announced _February_ 8, 2018 Cynthia H. _Coffman,_ Attorney General, Joseph G. Michaels, _Assistant_ Attorney _General,_ Denver, _Colorado,_ _for_ Plaintiff-Appellee Douglas K. Wilson, _Colorado_ State Public Defender, James S. _Hardy,_ _Deputy_ _State_ Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Floyd Trujillo, appeals his judgment of _conviction_ _entered_ on a jury verdict finding him guilty _of_ _one_ count of theft of more than $20,000 and _one_ count of criminal mischief of $20,000 or _more._ He _also_ _appeals_ his sentence. We perceive _no_ basis for reversing his convictions, but remand _for_ _the_ trial court to make findings of fact regarding the assessment of the costs of _prosecution_ and _to_ reclassify his theft conviction _as_ a _class_ 4 felony. I. Background ¶2 In 2007, _Trujillo_ began _building_ a home, _doing_ much of the _labor_ himself _and_ initially using his own _money_ to fund the project. He later took out a construction _loan_ _from_ _the_ victim, _a_ bank, _for_ just _under_ $255,000. After construction was completed on the _house,_ _Trujillo_ stopped making his monthly loan payments. _The_ bank declined to restructure the loan and initiated _foreclosure_ proceedings in September 2010. ¶3 Before _the_ foreclosure sale, Trujillo _removed_ or destroyed property in the house, _including_ kitchen _cabinets,_ countertops, _interior_ and exterior doors, doorjambs and casings, _flooring,_ _baseboards,_ _light_ _fixtures,_ bathroom fixtures, _the_ fireplace, _handrails,_ the boiler, the air conditioner, and the garage _door._ 1 Because of this _damage,_ the house was appraised at $150,000; however, the _appraiser_ estimated that if _the_ house were in good repair, it would have _been_ worth $320,000. _¶4_ Trujillo _was_ charged with defrauding a _secured_ creditor, theft of $20,000 or more, but less than $100,000, and criminal mischief of $20,000 or more, _but_ _less_ than $100,000. _The_ jury _found_ him not guilty of defrauding a _secured_ creditor and guilty of theft and criminal _mischief._ ¶5 _On_ _appeal,_ Trujillo raises _six_ contentions: _(1)_ the trial court erred in rejecting defense-tendered _jury_ instructions; (2) _the_ trial court erred in _allowing_ evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness _and_ closing rebuttal argument _warrants_ reversal; (4) the trial court imposed _an_ illegal sentence of indeterminate probation; (5) the trial court _erred_ in awarding the People costs of prosecution; and _(6)_ an amendment to the theft _statute_ applies to his conviction. We perceive no _basis_ for reversal with _respect_ to the first _four_ contentions, but _agree_ with Trujillo’s final two contentions. We therefore affirm the convictions and the sentence in part but vacate _the_ sentence in part and _remand_ with directions. 2 II. Jury Instructions ¶6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory _of_ the case. We disagree. _A._ Additional Facts ¶7 Throughout trial, the defense’s theory of _the_ _case_ _was_ that Trujillo _lacked_ the requisite intent _to_ commit the charged offenses because he believed that the property _he_ removed from the house belonged to him. _The_ _defense_ tendered five jury instructions related to _this_ theory of the _case._ _¶8_ Trujillo’s tendered jury instructions detailed property law concepts. For example, the first tendered _instruction_ stated that “the person _who_ has title to real property is _still_ _the_ owner of the property even if _there_ is a lien or _secured_ interest on the property.” Another tendered instruction defined “title,” “deed _of_ _trust,”_ and “holder of a certificate of purchase[].” One _instruction_ _described_ the lien theory detailed in section _38-35-117,_ C.R.S. 2017, and another _instructed_ that _title_ to property “does not _vest_ with the purchaser until eight days after [a] foreclosure sale.” ¶9 The trial _court_ declined to give these instructions as _tendered._ However, portions of the defense-tendered instructions _were_ 3 included in a final definitional jury instruction. _The_ final _instructions_ defined “deed of trust” and stated that the title to property is transferred to the holder _of_ _the_ certificate of purchase _eight_ days after _a_ foreclosure sale. Though it rejected other portions of the _defense-tendered_ instructions, _the_ _trial_ court permitted defense counsel _to_ argue _the_ _issues_ raised in the _instructions_ during closing argument. _¶_ 10 _The_ defense also tendered an _instruction_ which the trial court modified and gave as _a_ _theory_ _of_ the _case_ _instruction._ That instruction stated, _“Trujillo_ contends that _the_ items removed from _the_ _home_ _._ . . were his; purchased by him _and_ installed by him. _._ _._ . Trujillo _conten[d]s_ that the items that he took _and_ damaged were his sole property.” B. Standard of _Review_ ¶ 11 We review jury instructions de novo _to_ _determine_ whether, _as_ a _whole,_ they accurately informed the jury of the governing _law._ Riley v. People, 266 P.3d 1089, _1092-93_ (Colo. 2011). If the jury instructions properly _inform_ the _jury_ of the _law,_ the district court has _“broad_ discretion to determine the form _and_ style _of_ jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4 Accordingly, we review a trial court’s decision concerning a _proposed_ jury instruction _for_ an _abuse_ of discretion and will _not_ _disturb_ the ruling unless it is _manifestly_ arbitrary, unreasonable, or unfair. Id. ¶ _12_ When a defendant _objects_ to the _trial_ court’s ruling on a jury instruction, _we_ _review_ _for_ nonconstitutional harmless _error_ and will thus affirm if “there is not a reasonable probability _that_ the error contributed to the defendant’s conviction.” _People_ v. _Garcia,_ 28 P.3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). C. Applicable Law
477 F.2d 598 Zukowskiv.State Bar Grievance Board, State Bar ofMichigan 73-1072 UNITED STATES COURT OF APPEALS Sixth Circuit 4/18/73 1 E.D.Mich. AFFIRMED	477 f. 2d 598 rec. arizona bar grievance board, state bar ofmichigan 73 - 1072 united kingdom court of arizona sixth circuit 4 / 9 / 73 vs e. d. mich. affirmed	477 F. 2d 598 Zukowskiv. State Bar G%ievanfe GoWrd, Sgare Bar ofMichigwh 73 - 1072 UNITED STXTEC dOUtT OF APPEALS XiDth Cirfuir 4 / 18 / 73 1 E. D. Hicm. sFFIRM@D	477 F.2d Zukowskiv.State Grievance Board, State Bar ofMichigan 73-1072 UNITED STATES COURT OF APPEALS Sixth Circuit 4/18/73 1 E.D.Mich. AFFIRMED	477 F.2D 598 zukOwsKIv.STaTe BAr GRIeVANCE Board, STAte BAR OFMIcHiGaN 73-1072 UNIted StATes CouRt of aPpeALs siXth circuit 4/18/73 1 E.D.miCH. AFFIrMed	477 F.2d 598 Zukowskiv.State Bar Grievance Board, State BarofMichigan 73-1072 UNITED STATESCOURT OFAPPEALS Sixth Circuit4/18/73 1 E.D.Mich. AFFIRMED	_477_ F.2d 598 Zukowskiv.State Bar Grievance _Board,_ State Bar ofMichigan 73-1072 _UNITED_ STATES COURT _OF_ _APPEALS_ Sixth Circuit 4/18/73 1 E.D.Mich. _AFFIRMED_
ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) _ ) ASBCA N°' 60315 ) ) Under Contract No. HTC71 l-l4-D-R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attomey Lt Col Mark E. Allen, USAF Jason R. Smith, Esq. Trial Attomeys OPINlON BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’S MOTION FOR RECONSIDERAT]ON Appellant _ (-) has timely filed a motion for reconsideration of our 21 November 2016 decision granting the govemment’s motion for summary judgment and denying this appeal. -, ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy with our decision is presumed In deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco International, lnc., ASBCA No. 55441, 08-1 BCA 1\| 33,799 at 167,319. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding See Dixon v. Shz`nseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We do not grant motions for reconsideration absent a compelling reason. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA 11 35,125 at 172,453. - argues in its motion for reconsideration that the government breached the contract by violating PAR 52.233-3, PROTEST AFTER AWARD (AUG 1996) for failing to cancel the stop-work order or terminating the contract for convenience after the post-award protest period (app. mot. at l, 8). In our decision, we addressed this same argument and stated that “the suspension of work and termination for convenience clauses provide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has been paid the minimum contract value.” _, 16-1 BCA 11 36,569 ar 178,109. -, in its reply, acknowledges that part of our decision cited above, but argues that the government should still pay costs which it incurred after the suspension of work was allegedly lifted (app. reply br. at 7). However, all of the costs incurred were considered in our decision and found to be generated by tasks which was already expected to do under the terms of the contract. 16-1 BCA il 36,569 at 178,110-11. 3 We conclude - has not shown any compelling reason to modify our original decision, as - merely reargues its original position relying on the same facts. CONCLUSION For the reasons stated above, -’s motion for reconsideration is denied. Dated: 15 March 2017 DAVID D’ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK N. STEMPLER / RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed services Board of Contract Appeals in ASBCA Ne. 60315, Appeai ef- _, rendered in conformance with the Board’s Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals	armed services board of contract appeals appeal of - - ) ) _ ) asbca n° ' 60315 ) ) • contract no. htc71 l - l4 - d - r033 appearance for the appellant : _ president appearances for the government : jeffrey h. hildebrant, inc. air force deputy chief trial attomey lt col mark e. allen, usaf jason r. smith, esq. trial attomeys opinlon llc administrative judge d ’ alessandris on appellant ’ s motion for reconsiderat ] on appellant _ ( - ) has timely filed a motion for reconsideration of our 21 aug 2016 decision granting the govemment ’ s motion for summary judgment and denying this appeal. -, asbca no. 60315, 1 ( » 1 bca 11 36, 569. familiariiy with our decision is presumed in deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our knowledge of fact, or errors of law. zulco international, lnc., asbca no. 55441, 08 - 1 bca 1 \| 33, 799 at 167, 319. a motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding see dixon v. shz ` nseki, 741 f. 3d 1367, 1378 ( fed. cir. 2014 ). we do not grant motions for reconsideration absent a compelling reason. j. f. taylor, inc., asbca nos. 56105, 56322, 12 - 2 bca 11 35, 125 at 172, 453. - argues in its motion for reconsideration that the government breached the contract by violating par 52. 233 - 3, protest after award ( aug 1996 ) for failing to cancel the stop - work order or terminating the orders for convenience after the post - award protest period ( app. p. at l, 8 ). in our decision, we addressed this same argument and stated that “ the suspension of work and termination for convenience clauses provide no relief when no work was ordered under an [ indefinite - delivery, indefinite - quantity ] contract and the contractor has been paid low anticipated contract value. ” _, 16 - 1 bca 11 36, 569 ar 178, 109. -, in its reply, acknowledges that part of our decision cited above, but argues that the government should still pay costs which it incurred after the suspension of work was allegedly lifted ( app. reply br. at 7 ). however, all of the costs incurred were considered in our decision and found to be generated by tasks which was already expected to do under the terms of the contract. 16 - 1 bca il 36, 569 at 178, 110 - 11. 3 we conclude - has not shown any compelling reason to modify our original decision, as - merely reargues its original position relying on the same facts. conclusion for the reasons stated above, - ’ s motion for reconsideration is denied. dated : 15 march 2017 david d ’ alessandris administrative judge armed services board of contract appeals iconcur % i concur mark n. stempler / richard shackleford administrative judge administrative judge acting chairman vice chairman armed services board armed services board of contract appeals of contract appeals i certify that the foregoing is a true copy of the opinion and decision of the armed services board of contract appeals in asbca ne. 60315, appeai ef - _, rendered in conformance with the board ’ s charter. dated : jeffrey d. gardin recorder, armed services board of contract appeals	ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - -) ) _) ASBCA N ° ' 60315) ) Under Contract No. H%C*1 l - l4 - D - R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attomey Lt Col Mark E. Allen, USAF Jason R. Smith, Esq. Trial Attomeys OPINlON BY ADMINISTRATIVE JUDGE D ’ ALESSANDRIS ON APPELLANT ’ S MOTION FOR RECONSIDERAT] ON Appellant _ (-) has timely filed a moRKon for reconsideration of our 21 November 2016 decision granting the govemment ’ s motion for Qumhary judgment and denying this appeal. -, ASBCA No. 60315, 1 (» 1 BCA 11 36, 569. Familiariiy with our Recisipn is presumed In deciding a motion for reconsideration, we examine whether the mpti9n is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco untetnational, lnc. , ASBCA No. 55441, 08 - 1 BCA 1 \| 33, 799 at 167, 319. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding See Dixon v. Shz ` nseki, 741 F. 3d 1367, 1378 (Fed. Cir. 2014 ). We do not grant motions for reconsideration absent a compelling reason. J. F. Taylor, Inc. , ASBCA Nos. 56105, 56322, 12 - 2 BCA 11 35, 125 at 172, 453. - argues in its motion for reconsideration that the government breached the contract by violating PAR 52. 233 - 3, PROTEST AFTER AWARD (AUG 1996) for failing to cancel the stop - work order or terminating the contract for convenience after the post - award protest period (app. mot. at l, 8 ). In our decision, we addressed this same argument and stated that “ the suspension of work and termination for convenience clahsrs provide no relief when no work was ordered under an [indefinite - delivery, indefinite - quantity] contract and the contractor has been paid the minimum contract value. ” _, 16 - 1 BCA 11 36, 569 ar 178, 109. -, in its reply, acknowledges that part of our decision cited above, but argues that the government should still pay costs which it incurred after the suspension of work was allegedly lifted (app. reply br. at 7 ). However, all of the costs incurred were considered in our decision and found to be generated by tasks which was already expected to do under the terms of the dontDact. 16 - 1 BCA il 36, 569 at 178, 110 - 11. 3 We conclude - has not shown any compelling reason to modify our original decision, as - merely reargues its original position relying on the same facts. CONCLUSION For the reasons stated above, - ’ s motion for reconsideration is denied. Dated: 15 March 2017 DAVID D ’ ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK N. STEMPLER / RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Sfrvoces Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed services Board of Contract Appeals in ASBCA Ne. 60315, Appeai ef - _, rendered in conformance with the Board ’ s Charter. Dated: JEFFREY D. naRDIN Recorder, Armed Services Board of Contract Appeals	ARMED SERVICES BOARD OF CONTRACT Appeal of -- ) ) ) ASBCA 60315 ) ) Under Contract No. HTC71 l-l4-D-R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Attomey Mark E. Allen, USAF Jason R. Smith, Esq. Attomeys BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’S MOTION FOR RECONSIDERAT]ON Appellant _ (-) has filed a motion for reconsideration of our 21 November 2016 the govemment’s motion for and denying this appeal. -, ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy our decision is presumed In deciding for reconsideration, we examine whether the motion is based upon discovered mistakes in our findings fact, or of law. Zulco International, lnc., ASBCA No. 55441, 08-1 BCA 1\| 33,799 at 167,319. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding See Dixon v. Shz`nseki, 741 F.3d 1367, 1378 (Fed. 2014). We do not grant motions for reconsideration absent compelling reason. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA 11 35,125 172,453. - argues in its motion for reconsideration that government breached contract by PAR PROTEST AFTER AWARD (AUG 1996) for failing to the stop-work order or terminating contract for convenience after the post-award protest period (app. at 8). In our decision, we this same argument and stated that “the of work and termination for clauses provide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has paid the minimum value.” _, 16-1 BCA 36,569 ar 178,109. -, in its reply, acknowledges that part of our decision cited above, but argues that the government should still pay costs which it incurred the suspension of work was (app. reply at 7). However, all of the costs incurred considered in our decision and found to be generated by tasks which was already expected to do under the terms of the contract. 16-1 il 36,569 at 178,110-11. 3 We conclude - has not shown any compelling reason modify our original decision, as - reargues its original position relying on the same facts. CONCLUSION For the reasons stated above, -’s motion for reconsideration is denied. Dated: 15 March 2017 DAVID Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK STEMPLER / RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed services Board of Contract Appeals in ASBCA Ne. 60315, Appeai ef- _, rendered in conformance with the Board’s Charter. Dated: JEFFREY D. Recorder, Armed Board of Contract Appeals	ArmED sErViceS boARd OF CoNtRAct aPpeals ApPeaL oF -- ) ) _ ) aSBcA N°' 60315 ) ) UNdeR contRact No. htC71 L-l4-D-r033 ApPeaRANcE FOr tHE AppELLaNt: _ PreSIDent APPeaRanCes fOr ThE GOVErNmenT: jefFREY P. HildeBRANt, esq. aiR FORCe depUTY cHIef trIAl AtTOmeY lt col MaRk E. aLLEN, UsAF JaSoN r. SMiTH, EsQ. triAl ATTOMeYS OPInlOn By AdmInisTRAtivE juDgE D’AleSSANDris oN ApPeLlanT’s MOTiON FOr REcONsIDerAT]on APpElLaNt _ (-) HAS TiMeLy fiLED A mOTioN FOr reConSIdeRAtIOn Of Our 21 noveMBEr 2016 dEcIsion GRantInG tHe GOVEMMEnt’s mOTIon FOr sUmMArY JUDGmenT ANd DenyiNG tHIs appeAl. -, aSbCA no. 60315, 1(»1 bCA 11 36,569. familIaRIIY wItH OUR deCisiON Is pREsumeD iN deCiDINg A moTIoN foR rEconSIDeraTION, We eXAMine wHEtHER The MotiON is Based UpoN NewLY dIsCOVeReD EvidENce, MistakEs In our FINdInGs Of FacT, OR ERRors OF lAw. ZULcO INTeRnAtiOnal, lNC., aSBCA No. 55441, 08-1 BCa 1\| 33,799 AT 167,319. A motiOn for RECoNsIDEraTioN dOeS Not pROvidE THe mOviNG pArTY tHE OppORtUNiTY to reARGuE iTs PoSITiOn Or to aDVAnCe ArguMenTs tHAt proPeRly ShouLd HavE beeN preSeNTEd iN An EarlIER pROceEdinG see DixON v. sHZ`NSEki, 741 F.3d 1367, 1378 (Fed. CiR. 2014). We do nOT grAnt MoTIoNS FOr reConSIdeRaTiON ABSEnT A CoMpeLlinG ReaSOn. j.F. TayloR, INc., asBcA NoS. 56105, 56322, 12-2 bCa 11 35,125 aT 172,453. - argUes iN iTS MOTiOn foR rEcoNSIDERAtIOn that The gOVErnMEnt bReacHED ThE contrAct bY vIoLatiNG pAr 52.233-3, pRoTESt AfTer AwarD (auG 1996) FOR FaiLiNG To CANCEl THe SToP-wORK orDEr oR teRminaTiNg tHE cOntrACt For conveNiEnCe aFtEr tHE post-aWARD pROteSt pErIod (apP. mOT. at L, 8). In OUr dECISion, WE AdDRessEd thIs saMe ArgUMEnt ANd STAtED thAt “The sUspeNsIoN of worK aNd tERMiNAtion for CoNvENieNce CLAUSeS PROViDE nO ReliEF when NO wOrK Was ordEreD unDEr aN [InDEfiNiTe-deLIVERy, INDEfiNitE-quAnTiTy] COnTraCt and ThE COntrACtor hAs BEEn PAId ThE MInIMUm cONTRaCt vALuE.” _, 16-1 bCA 11 36,569 ar 178,109. -, iN iTS Reply, ackNOwLEDgES thAT PArT of OUr DECISioN CIteD abOVe, buT aRgues ThaT the GoVERnMenT ShOuLd STill pAY cOSts wHiCh It INCUrrED aFTEr THe SusPENsION oF wORk was aLLeGEdLy liFTEd (aPP. rEPLy bR. aT 7). hoWEvER, ALl OF tHe COSTS incURRed werE CONsidEReD in our DecisiON and fOuNd To be geNErAtED By tasKs WHiCh WAS AlreAdY eXpECtED To dO UNDER tHE Terms Of THE cONTRACT. 16-1 Bca IL 36,569 AT 178,110-11. 3 We CoNcLuDe - hAS noT sHoWn AnY COMpeLling reASON tO MOdIfy oUr oRIgiNAL decIsioN, As - MEreLY REARguEs ItS OriGiNAl PoSItion reLYiNG on the sAMe faCTS. CoNcLUsIoN FOr tHe rEASons stAtED ABOvE, -’s mOtIoN FoR RECONsiDErAtiOn iS DEnied. dAtEd: 15 marCH 2017 dAVId d’ALESSandriS adminiSTratIve juDGE armed sErviCEs bOArD oF CoNTRaCt apPEAlS IcONCUr% I CONcuR maRK N. StempLER / RiCHARd shAcKLeFOrd ADMINIstraTIVE judgE aDmiNisTRaTiVe Judge ACtInG cHAIrmaN VicE chAirmAn ArMEd SeRVicEs BoArd Armed sERVices BoARD of cOntraCt APpEalS of contrAct ApPeAls i CERtIFy ThAt THe foreGoIng iS a TrUE COPy Of THe opiNiOn and dEcisIon OF tHe ArMed servICes BoARD Of coNTRaCt aPPEals In asbCA Ne. 60315, AppEai Ef- _, reNdereD IN ConfORmANCe wiTH The boaRd’S CHartER. daTed: JEFfReY d. GaRdin RECOrdeR, aRmED sErVICeS bOard oF cONTRaCT aPPeaLs	ARMEDSERVICES BOARDOF CONTRACT APPEALS Appeal of -- ) ) _ ) ASBCA N°' 60315 ) ) Under Contract No.HTC71 l-l4-D-R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.Air Force Deputy Chief Trial Attomey Lt Col Mark E. Allen, USAF Jason R. Smith, Esq. Trial Attomeys OPINlON BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’SMOTION FOR RECONSIDERAT]ON Appellant _ (-)has timely filed a motion for reconsideration of our 21 November 2016 decision granting the govemment’s motion for summary judgment and denying this appeal. -,ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy with our decision is presumed In deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our findings offact, or errors of law. Zulco International, lnc., ASBCA No. 55441,08-1 BCA 1\| 33,799 at 167,319. Amotion for reconsiderationdoes not provide themoving partythe opportunity to reargue its position or to advance arguments that properly should have been presented inan earlier proceedingSee Dixon v. Shz`nseki, 741F.3d 1367,1378 (Fed. Cir. 2014). We do not grant motions for reconsideration absent acompelling reason. J.F. Taylor,Inc., ASBCA Nos. 56105,56322, 12-2 BCA 11 35,125 at172,453. - argues in its motion forreconsideration that the government breached the contract by violating PAR 52.233-3, PROTESTAFTER AWARD (AUG 1996) for failingto cancel the stop-work order or terminatingthe contract for convenience after the post-award protest period (app. mot. at l, 8).In our decision, we addressed thissame argument and stated that “the suspension ofwork and termination forconvenience clausesprovide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has been paid theminimum contract value.” _, 16-1 BCA 11 36,569 ar 178,109. -, in its reply, acknowledges thatpart of our decision cited above,but argues that the government should still pay costs which it incurred after the suspension of work wasallegedly lifted (app. reply br. at 7). However, all of the costs incurred were consideredin our decision andfound tobe generated by tasks which was already expected to do under the terms of the contract. 16-1 BCA il36,569 at 178,110-11. 3 We conclude - has not shown anycompelling reason to modify our original decision, as -merely reargues its original position relying onthesame facts. CONCLUSION For the reasons stated above, -’s motionfor reconsideration is denied. Dated: 15 March 2017 DAVID D’ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK N. STEMPLER /RICHARD SHACKLEFORD AdministrativeJudge Administrative Judge Acting Chairman Vice Chairman ArmedServices Board Armed Services Board ofContract Appeals of Contract Appeals I certify thatthe foregoing is a true copy of the Opinion and Decision of the Armed services Board of Contract Appeals in ASBCA Ne. 60315, Appeai ef- _, rendered in conformancewith the Board’sCharter. Dated: JEFFREY D. GARDINRecorder, Armed Services Board of Contract Appeals	ARMED SERVICES BOARD OF _CONTRACT_ APPEALS Appeal of -- ) ) _ _)_ _ASBCA_ N°' _60315_ ) ) Under _Contract_ No. HTC71 l-l4-D-R033 _APPEARANCE_ FOR THE APPELLANT: _ President APPEARANCES FOR _THE_ _GOVERNMENT:_ _Jeffrey_ P. Hildebrant, Esq. _Air_ _Force_ _Deputy_ Chief Trial Attomey _Lt_ Col Mark E. _Allen,_ USAF Jason R. Smith, Esq. Trial Attomeys OPINlON BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’S MOTION FOR RECONSIDERAT]ON Appellant _ (-) has _timely_ filed _a_ motion for reconsideration _of_ our _21_ _November_ 2016 decision _granting_ the govemment’s motion for _summary_ judgment and denying this appeal. -, ASBCA No. _60315,_ 1(»1 _BCA_ 11 _36,569._ Familiariiy _with_ our _decision_ is presumed In _deciding_ a motion for reconsideration, we examine _whether_ _the_ _motion_ is based _upon_ newly discovered evidence, mistakes _in_ our findings of fact, or errors of law. Zulco International, lnc., ASBCA No. 55441, 08-1 BCA _1\|_ _33,799_ at 167,319. A motion for reconsideration _does_ _not_ provide the moving party the opportunity to reargue its position or to _advance_ arguments that properly should have been presented _in_ an earlier proceeding See Dixon v. _Shz`nseki,_ 741 F.3d 1367, 1378 (Fed. _Cir._ 2014). We _do_ not grant motions for reconsideration absent a _compelling_ _reason._ _J.F._ Taylor, _Inc.,_ ASBCA _Nos._ _56105,_ 56322, 12-2 BCA 11 35,125 at 172,453. - argues in its motion for reconsideration that the government breached the contract by violating PAR _52.233-3,_ PROTEST AFTER _AWARD_ (AUG 1996) for failing to cancel the stop-work order or terminating the contract for convenience _after_ the post-award protest period (app. mot. at _l,_ 8). In _our_ decision, we addressed this same argument and stated that “the suspension of work and termination for convenience _clauses_ provide no relief when no work was ordered under an [indefinite-delivery, _indefinite-quantity]_ contract and _the_ _contractor_ _has_ _been_ paid the minimum contract value.” _, 16-1 BCA 11 _36,569_ ar 178,109. -, in _its_ reply, acknowledges that part of our _decision_ cited above, _but_ argues _that_ the government should still pay costs which _it_ _incurred_ after the suspension of work was allegedly lifted (app. reply br. _at_ 7). However, all of the costs incurred _were_ considered in our decision and found _to_ be generated _by_ tasks _which_ was already _expected_ _to_ _do_ under the terms of the _contract._ 16-1 BCA il 36,569 _at_ 178,110-11. 3 We conclude - _has_ not shown any compelling _reason_ to modify _our_ original decision, as - merely reargues _its_ original _position_ _relying_ on _the_ same facts. CONCLUSION For the reasons stated above, _-’s_ motion for reconsideration is denied. Dated: _15_ March 2017 DAVID D’ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals Iconcur% _I_ concur _MARK_ N. _STEMPLER_ / RICHARD SHACKLEFORD _Administrative_ Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true _copy_ of the Opinion and Decision of the Armed services _Board_ _of_ Contract Appeals in ASBCA Ne. 60315, Appeai ef- _, rendered in conformance _with_ the Board’s Charter. Dated: JEFFREY D. GARDIN Recorder, _Armed_ _Services_ Board of Contract _Appeals_
United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3842 ___________________________ Barbara Hager lllllllllllllllllllll Plaintiff - Appellee v. Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: September 24, 2013 Filed: November 14, 2013 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Barbara Hager was fired from the Arkansas Department of Health by her supervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court granted, in part, their motion to dismiss. They appeal. Having jurisdiction under 28 U.S.C. § 1291 over Dr. Zohoori’s appeal, this court reverses and remands. I. Hager claims that in May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a doctor’s appointment (necessary, she says, to prevent cataracts) in order to discuss a report. When she refused, she alleges Dr. Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, he terminated her without explanation. Hager sued Dr. Zohoori, in his individual and official capacities, and the Department alleging violations of Title VII of the Civil Rights Act of 1964, the Equal Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age Discrimination and Employment Act, the Rehabilitation Act, and the Family and Medical Leave Act (FMLA). Dr. Zohoori and the Department moved to dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claims against Dr. Zohoori in his individual capacity (§ 1983 gender discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (Title VII and Rehabilitation Act). They appeal. II. Hager objects to this court’s jurisdiction over Dr. Zohoori’s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity is an appealable “final decision” only “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Hager relies on cases reviewing a denial of summary judgment based on qualified immunity. See Johnson v. Jones, 515 U.S. 304, 313-14 (1995) (holding that where a district court’s summary judgment order on qualified immunity turns on the issue of evidence sufficiency—“which facts a party may, or -2- may not, be able to prove at trial”—the order is not appealable); Powell v. Johnson, 405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Supreme Court determined the jurisdiction of a court of appeals in a case like Hager’s—denial of a motion to dismiss based on qualified immunity: As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of § 1291. Behrens, 516 U.S., at 307, 116 S. Ct. 834. Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. Iqbal, 556 U.S. 662, 672-73 (2009). -3- Here, Dr. Zohoori challenges the sufficiency of Hager’s pleadings to state § 1983, FMLA “interference,” and FMLA “retaliation” claims. This is an issue of law over which this court has jurisdiction. See id. at 672-74; Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 679 (6th Cir. 2011). III. This court reviews de novo the denial of a motion to dismiss on the basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations in the complaint are accepted as true and viewed most favorably to the plaintiff. Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). Courts must not presume the truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts should dismiss complaints based on “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Under the doctrine of qualified immunity, a court must dismiss a complaint against a government official in his individual capacity that fails to state a claim for violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Iqbal, 556 U.S. at 685; Mitchell, 472 U.S. at 526 (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”). A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction. Powell, 405 F.3d at 654-55. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[D]istrict courts and the courts of -4- appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). A. The § 1983 claim against Dr. Zohoori individually (Count I) alleges that Hager was “a victim of gender discrimination . . . and has been denied her right of equal protection of the law and due process of the law.” Specifically, she contends she “was discharged under circumstances summarily [sic] situated nondisabled males . . . were not.” “[T]he Equal Protection Clause requires that the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Klinger v. Department of Corrs., 31 F.3d 727, 731 (8th Cir. 1994). Absent evidence of direct discrimination, courts apply the McDonnell Douglas burden- shifting analysis to claims of employment discrimination under the Equal Protection Clause. Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F.3d 1005, 1010 (8th Cir. 2003) (en banc). Under McDonnell Douglas, a prima facie case of discrimination requires that a plaintiff prove: “(1) membership in a protected group; (2) qualification for the job in question; (3	united states court of appeals for the eighth circuit _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ no. 12 - 3842 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ barbara edwards lllllllllllllllllllll plaintiff - appellee v. arkansas department of health ; namvar zohoori, individually and in his official capacity lllllllllllllllllllll defendants - appellants _ _ _ _ _ _ _ _ _ _ _ _ appeal from united states district court for the eastern district of arkansas - little rock _ _ _ _ _ _ _ _ _ _ _ _ submitted : september 24, 2013 filed : november 14, 2013 _ _ _ _ _ _ _ _ _ _ _ _ before harper, colloton, and benton, lower judges. _ _ _ _ _ _ _ _ _ _ _ _ benton, circuit judge. barbara hager was fired from the arkansas department of health by her supervisor, dr. namvar iv. hager sued dr. zohoori and the department for statutory and constitutional violations. the district court granted, per part, their motion to dismiss. they appeal. having jurisdiction under 28 u. s. c. § 1291 over dr. zohoori ’ s appeal, superior court reverses and remands. i. hager claims that in may 2011, her branch chief and supervisor, dr. zohoori, instructed her to cancel a doctor ’ s appointment ( necessary, she says, to prevent cataracts ) in order to discuss a report. initially she refused, she alleges dr. zohoori became irritated and later claimed she was insubordinate and disrespectful. four days later, he terminated her without explanation. he sued dr. zohoori, in his individual and official capacities, and the department alleging violations of title vii of the civil rights act of 1964, the equal protection and due relationship clauses of the constitution ( § 1983 claim ), the age discrimination and employment act, the rehabilitation act, and the family and medical leave act ( fmla ). dr. zohoori and the department moved to dismiss for failure to state a claim and sovereign immunity. the district court denied their motion in part, allowing three claims against dr. zohoori in his individual capacity ( § 1983 gender discrimination, fmla “ interference, ” and fmla “ retaliation ” ) and two claims against the department ( title vii and rehabilitation act ). they appeal. ii. hager objects to this court ’ s jurisdiction over dr. zohoori ’ s appeal, arguing it turns on issues of factual sufficiency. a denial of qualified immunity is an appealable “ final decision ” only “ to the extent it turns on an issue of law. ” mitchell v. forsyth, 472 u. s. 511, 530 ( 1985 ). hager relies on cases reviewing a denial of summary judgment based on qualified immunity. see johnson v. jones, 515 u. s. 304, 313 - 14 ( 1995 ) ( holding that where a district court ’ s summary judgment order on qualified immunity turns on the issue of evidence sufficiency — “ which facts a party may, or - 2 - may not, be able to prove at trial ” — the order is not appealable ) ; powell v. johnson, 405 f. 3d 652, 654 - 55 ( 8th cir. 2005 ). in ashcroft v. iqbal, the supreme court determined the jurisdiction of a court of appeals in a case like hager ’ s — denial of a motion to dismiss based on qualified immunity : as a general matter, the collateral - order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in cohen. but the applicability of the doctrine in the context of qualified - immunity claims is well established ; and this court has been careful to say that a district court ’ s order rejecting qualified immunity at the motion - to - dismiss stage of a proceeding is a “ final decision ” within the meaning of § 1291. behrens, 516 u. s., at 307, 116 s. ct. 834. applying these principles, we conclude that the court of appeals had jurisdiction to hear petitioners ’ appeal. the district court ’ s order denying petitioners ’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. it was therefore a final decision “ subject to immediate appeal. ” ibid. respondent says that “ a qualified immunity appeal based solely on the complaint ’ s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction. ” brief for respondent iqbal 15 ( hereinafter iqbal brief ). in other words, respondent contends the court of appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. our opinions, however, make clear that appellate jurisdiction is not so strictly confined. iqbal, 556 u. s. 662, 672 - 73 ( 2009 ). - 3 - here, dr. zohoori challenges the sufficiency of hager ’ s pleadings to state § 1983, fmla “ interference, ” and fmla “ retaliation ” claims. this is an issue of law over which this court has jurisdiction. see id. at 672 - 74 ; bradford v. huckabee, 394 f. 3d 1012, 1015 ( 8th cir. 2005 ). see also rondigo, l. l. c. v. township of richmond, 641 f. 3d 673, 679 ( 6th cir. 2011 ). iii. this court reviews de novo the denial of a motion to dismiss on the basis of qualified immunity. bradford, 394 f. 3d at 1015. a complaint must “ state a claim to relief that is plausible on its face. ” bell atlantic corp. v. twombly, 550 u. s. 544, 570 ( 2007 ). under federal rule of civil procedure 12 ( b ) ( 6 ), the factual allegations in the complaint are accepted as true and viewed most favorably to the plaintiff. gross v. weber, 186 f. 3d 1089, 1090 ( 8th cir. 1999 ). courts must not presume the truth of legal conclusions couched as factual allegations. papasan v. allain, 478 u. s. 265, 286 ( 1986 ). courts should dismiss complaints based on “ labels and conclusions, and a formulaic recitation of the elements of a cause of action. ” twombly, 550 u. s. at 555. under the doctrine of qualified immunity, a court must dismiss a complaint against a government official in his individual capacity that fails to state a claim for violation of “ clearly established statutory or constitutional rights of which a reasonable person would have known. ” harlow v. fitzgerald, 457 u. s. 800, 818 ( 1982 ). see also iqbal, 556 u. s. at 685 ; mitchell, 472 u. s. at 526 ( “ unless the plaintiff ’ s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. ” ). a court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction. powell, 405 f. 3d at 654 - 55. see pearson v. callahan, 555 u. s. 223, 236 ( 2009 ) ( “ [ d ] istrict courts and the courts of - 4 - appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. ” ). a. the § 1983 claim against dr. zohoori individually ( count i ) alleges that hager was “ a victim of gender discrimination... and has been denied her right of equal protection of the law and due process of the law. ” specifically, she contends she “ was discharged under circumstances summarily [ sic ] situated nondisabled males... were not. ” “ [ t ] he equal protection clause requires that the government treat such similarly situated persons alike. ” keevan v. smith, 100 f. 3d 644, 648 ( 8th cir. 1996 ), citing city of cleburne v. cleburne living ctr., inc., 473 u. s. 432, 439 ( 1985 ) ; klinger v. department of corrs., 31 f. 3d 727, 731 ( 8th cir. 1994 ). absent evidence of direct discrimination, courts apply the mcdonnell douglas burden - shifting analysis to claims of employment discrimination under the equal protection clause. lockridge v. board of trs. of univ. of arkansas, 315 f. 3d 1005, 1010 ( 8th cir. 2003 ) ( en banc ). under mcdonnell douglas, a prima facie case of discrimination requires that a plaintiff prove : “ ( 1 ) membership in a protected group ; ( 2 ) qualification for the job in question ; ( 3	United States Court of Appeals For the Eighth Circuit ___________________________ No. 12 - 3842 ___________________________ Barbara Hager lllllllllllllllllllll Plaintiff - Appellee v. Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: September 24, 2013 Filed: November 14, 2013 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Barbara Hager was fired from the Arkansas Department of Health by her supervisor, Dr. Namvar Zohoori. Hagdt sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court granted, in part, their motion to dismiss. TJRy appeal. Having jurisdiction under 28 U. S. C. § 1291 over Dr. Zohoori ’ s appeal, this court reverses and remands. I. Hager claims that in May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a doctor ’ s appointment (necessary, she says, to prevent cataracts) in order to discuss a report. When she refused, she alleges Dr. Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, he terminated her without explanation. Hager sued Dr. Zohoori, in his individual and official capacities, and the Department alleging violations of Title VII of the Civil Rights Act of 1964, the Equal Protection and Due Process Clauses of the Constitution (§ 1983 claim ), the Age Discrimination and Employment Act, the Rehabilitation Act, and the Family and Medical Leave Act (FMLA ). Dr. Zohoori and the Department moved to dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claims against Dr. Zohoori in his individual capacity (§ 1983 gender discrimination, FMOX “ interference, ” and FMLA “ retaliation ”) and two claims against the Department (Title VII and Rehabilitation Act ). They appeal. II. Hager objects to this court ’ s jurisdiction over Dr. Zohoori ’ s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity is an appealable “ final decision ” only “ to the extent it turns on an issue of law. ” Mitchell v. Forsyth, 472 U. S. 511, 530 (1985 ). Hager relies on cases reviewing a denial of summary judgment based on qualified immunity. See Johnson v. Jones, 515 U. S. 304, 313 - 14 (1995) (holding that where a district court ’ s summary judgment order on qualified immunity turns on the issue of evidence sufficiency — “ which facts a party may, or - 2 - may not, be able to prove at trial ” — the order is not appealable ); Powell v. Johnson, 405 F. 3d 652, 654 - 55 (8th Cir. 2005 ). In Ashcroft v. Iqbal, the Supreme Court determined the jurisdiction of a court of appeals in a case like Hager ’ s — denial of a motion to dismiss based on qualified immunity: As a general matter, the collateral - order doctrine may have expanded beyond the limits dicta^Wd by its internal logic and the strict application of the criteria set out in CoJeh. But the applicability of the doctrine in the context of qualified - immunity claims is well established; and this Court has been careful to say that a district court ’ s order rejecting qualified immunity at the motion - to - dismiss stage of a proceeding is a “ final decision ” within the meaning of § 1291. Behrens, 516 U. S. , at 307, 116 S. Ct. 834. Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners ’ appeal. The District Court ’ s order denying petitioners ’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “ subject to immediate appeal. ” Ibid. Respondent says that “ a qualified immunotG appeal based solely on the complaint ’ s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction. ” Brief for Respondent Iqbal 15 (hereinafter jqHal Brief ). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. Iqbal, 556 U. S. 662, 672 - 73 (2009 ). - 3 - Here, Dr. Zohoori challenges the sufficiency of Hager ’ s pleadings to state § 1983, FMLA “ interference, ” and EMLs “ retaliation ” claims. This is an issue of law over which this court has jurisdiction. See id. at 672 - 74; Bradford v. Huckabee, 394 F. 3d 1012, 1015 (8th Cir. 2005 ). See also Rondigo, L. L. C. v. Township of Richmond, 641 F. 3d 673, 679 (6th Cir. 2011 ). III. This court reviews de novo the denial of a motion to dismiss on the basis of qualified immunity. Bradford, 394 F. 3d at 1015. A complaint must “ state a claim to relief that is plausible on its face. ” Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 570 (2007 ). Under Federal Rule of Civil Procedure 12 (b) (6 ), the factual allegations in the complaint are accepted as true and viewed most favorably to the plaintiff. Gross v. Weber, 186 F. 3d 1089, 1090 (8th Cir. 1999 ). Courts must not presume the truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U. S. 265, 286 (1986 ). Courts should dismiss complaints based on “ labels and conclusions, and a formulaic recitation of the elements of a cause of action. ” Twombly, 550 U. S. at 555. Under the doctrine of qualified immunity, a court must dismiss a complaint against a government official in his individual capacity that fails to state a claim for violation of “ clearly established statutory or constitutional rights of which a reasonable person would have known. ” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982 ). See also Iqbal, 556 U. S. at 685; Mitchell, 472 U. S. at 526 (“ Unless the plaintiff ’ s allegations state a claim of violation of clearly established law, a defendant p/eadOng qualified immunity is entitled to dismissal before the commencement of discovery. ” ). A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction. Powell, 405 F. 3d at 654 - 55. See Pearson v. Callahan, 555 U. S. 223, 236 (2009) (“ [D] istrict courts and the courts of - 4 - appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. ” ). A. The § 1983 claim against Dr. Zohoori individually (Count I) alleges that Hager was “ a victim of gender discrimination. .. and has been denied her right of Fqkal protection of the law and due process of the law. ” Specifically, she contends she “ was discharged under circumstances summarily [sic] situated nondisabled males. .. were not. ” “ [T] he Equal Protection Clause requires that the government treat such similarly situated persons alike. ” Keevan v. Smith, 100 F. 3d 644, 648 (8th Cir. 1996 ), citing City of Cleburne v. Cleburne Living Ctr. , Inc. , 473 U. S. 432, 439 (1985 ); Klinger v. Department of Corrs. , 31 F. 3d 727, 731 (8th Cir. 1994 ). Absent evidence of direct discrimination, courts apply the McDonnell Douglas burden - shifting analysis to claims of employment discrimination under the Equal Protection Clause. Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F. 3d 1005, 1010 (8th Cir. 2003) (en banc ). Under McDonnell Douglas, a prima facie case of discrimination requires that a plaintiff prove: “ (1) membership in a protected group; (2) qualification for the job in question; (3	United States of Appeals For the Eighth ___________________________ No. 12-3842 ___________________________ Barbara Hager lllllllllllllllllllll Plaintiff - Appellee v. Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Court for the Eastern District of - Little Rock Submitted: September 24, November 14, 2013 ____________ LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Barbara Hager was fired from the Arkansas Department of Health by supervisor, Dr. Namvar sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court in part, their motion to dismiss. They appeal. Having under U.S.C. 1291 over Dr. Zohoori’s this court reverses and remands. Hager claims that May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a appointment (necessary, she says, prevent cataracts) in order to discuss report. When she refused, she alleges Zohoori became and falsely claimed she was insubordinate and days later, he terminated her without explanation. Hager Dr. Zohoori, in his individual and official capacities, and Department violations of Title VII of Civil Rights Act of 1964, the Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age Employment Act, the Rehabilitation Act, the Family and Medical Leave Act (FMLA). Zohoori the Department moved to dismiss for failure to a claim and sovereign immunity. district court denied their motion in part, allowing three claims Dr. Zohoori in his individual capacity (§ 1983 discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (Title VII and Rehabilitation Act). They appeal. II. Hager objects to this court’s jurisdiction over Dr. Zohoori’s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity is an appealable “final only “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). relies on cases reviewing a denial of summary judgment based qualified immunity. See Johnson v. Jones, U.S. 304, 313-14 (1995) (holding that where a district court’s summary judgment on qualified immunity turns on the issue evidence facts a party may, or -2- may not, be able to prove at trial”—the order is appealable); Powell v. Johnson, 405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Court determined jurisdiction of a court of appeals in a case like Hager’s—denial of a motion to based on qualified immunity: As a general matter, the collateral-order may have expanded beyond the limits dictated by its internal logic the strict application of the criteria set out Cohen. But the applicability of doctrine in the context of qualified-immunity claims is well and this Court has been careful to say that a district court’s rejecting immunity at the motion-to-dismiss stage of a proceeding is a “final decision” the meaning of § 1291. Behrens, 516 at 307, 116 Ct. these principles, we conclude that the Court of Appeals had jurisdiction to hear appeal. District Court’s order denying petitioners’ motion to dismiss turned on issue of law and the defense of qualified immunity. It was final decision “subject to immediate appeal.” Ibid. says that “a qualified immunity based on the complaint’s failure state a claim, and not on the ultimate issues relevant to the qualified defense itself, not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends Court of had jurisdiction to determine whether complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate is so strictly confined. Iqbal, 556 U.S. 662, 672-73 (2009). Here, Dr. Zohoori challenges the sufficiency of Hager’s pleadings state § 1983, FMLA and FMLA claims. This is an of law over which this court has jurisdiction. See id. at 672-74; Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, (6th Cir. 2011). III. This court reviews de novo the denial of a to on the basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations in the complaint are accepted as true and viewed most favorably to plaintiff. v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). Courts must not presume truth of legal conclusions couched as factual allegations. v. Allain, 478 U.S. 265, 286 (1986). Courts should complaints based on “labels and conclusions, and a formulaic recitation of the elements a cause of action.” Twombly, 550 U.S. at 555. Under the doctrine of qualified court must dismiss a complaint against a government official in his individual capacity that fails to state claim violation of “clearly established statutory or constitutional rights of which a reasonable would have known.” Harlow v. 457 U.S. 800, 818 (1982). See also Iqbal, 556 U.S. at 685; Mitchell, 472 U.S. at 526 (“Unless the plaintiff’s allegations state a of violation of established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”). A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and the right was clearly at the time of the alleged infraction. Powell, 405 F.3d 654-55. See Pearson v. Callahan, 555 U.S. (2009) (“[D]istrict courts and the courts appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be first in light of the circumstances in the particular case at hand.”). A. The 1983 claim against Dr. Zohoori individually (Count I) that Hager was “a victim of gender discrimination . . . and has been denied her right of equal protection of the law and due process of the law.” Specifically, she contends she “was discharged under circumstances summarily [sic] situated nondisabled males . . . were not.” “[T]he Equal Protection Clause requires that the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996), citing City of v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Klinger v. of Corrs., 31 727, (8th Cir. 1994). Absent evidence of direct discrimination, courts apply McDonnell Douglas burden- shifting analysis to claims of employment discrimination the Equal Protection Lockridge Board of Trs. of Univ. of F.3d 1005, (8th Cir. 2003) (en banc). Under McDonnell Douglas, a prima facie case of discrimination requires that a plaintiff prove: “(1) membership in a protected group; (2) qualification for the job in question; (3	unITeD STateS COUrT of APPeAlS for THE EIGHTh CircuIT ___________________________ nO. 12-3842 ___________________________ BarBaRa haGER LLlLLLlLlLLlLlLllLLll plAiNtIFF - ApPeLleE V. arKAnSaS dEPArtMent OF HEalTH; nAmVAr ZoHoorI, INDIViDuALLY AND IN HiS oFFiCiaL capAcITy lLllLlllLLlLLLlllLLLl defeNDAnTS - aPPELLaNTs ____________ appEAL froM UNIteD sTAteS DiSTRICT CouRT fOr THE EAStERn dIStrict OF ARkansAS - LittlE ROCK ____________ suBMiTTED: sePTEMBer 24, 2013 FiLED: NOVEmBer 14, 2013 ____________ BefOre loken, CollOtOn, anD bENtON, cIrcUiT JudgeS. ____________ bENtoN, CIrcuIt JUDgE. barBARA HAGer wAs FIReD fRom THe ArKaNsAs depARtMENT of heAlTh by Her suPErVIsOR, dr. NaMVar ZOhoorI. hAgeR SUEd dR. zoHooRi and tHe dEPARTmeNt for stAtuTOrY AnD CONsTitutIONAl vIOlATIONs. THE diStRICT COurT gRaNTED, IN PART, tHEIr MOtioN to DisMiSs. THEy apPeal. HAvIng JurisdIcTiOn uNdEr 28 u.s.c. § 1291 oVeR dr. zOhOOri’s apPeal, THis CoURt reVerSeS aNd REMaNDS. i. Hager clAimS that iN May 2011, HeR bRANCH chIEF ANd SUpERviSOr, dr. zOhOori, INStrUCted Her to CAncEl A dOCTor’s appoINtMeNT (NEceSSaRY, sHe sAyS, TO pRevEnt CaTArACtS) in OrdER tO diSCUSs a repOrt. WHEn she ReFuseD, she AllEGes DR. zohoori BECamE IRriTAtED AND fAlSElY cLAiMED sHE wAS iNsuBoRdINate and DIsrEspectFuL. FoUR DAYs lATer, he TeRMiNAtED heR wiTHOut EXplAnatioN. haGer SuED dR. zOhoori, iN HiS indiVidUAl anD OffiCial capACITIES, anD THE dEpartmENt ALLEGINg ViOLATionS of tiTle vII OF thE ciViL rIghts Act oF 1964, The eqUAl prOtEcTioN aND Due pRocesS CLAUSes Of THE ConStiTUtION (§ 1983 CLaIM), tHE AGE disCRiMINaTioN and eMploYMENT ACt, THe REhABILiTAtIOn AcT, And THe FaMilY AnD MEDiCAL lEavE ACt (FmLa). dR. ZOHoOri AND tHe dEPARTMent MoVed tO DiSmIss fOr FAIlUrE TO STATe A cLAIM And sOVErEign iMMUnItY. THE dIsTrICT CourT deNied ThEIR MotIOn In part, aLlOwinG ThreE ClAiMS against DR. ZoHoORI iN HIs IndIVIduAL CapAcIty (§ 1983 GenDER DIsCrImInAtIon, FMLa “inTerfeRENCe,” And Fmla “ReTAliatioN”) AnD two cLaImS AgAiNsT THE DepArtMenT (TitLE ViI AND ReHabiLITaTIOn aCt). they aPPeAl. iI. hagEr ObJEcTS To THis COURt’s JUrisdictiON OveR dR. ZOhoOri’s appEAL, arGUing iT TURns oN ISsueS OF Factual SufFiCiency. a dENiaL OF quALIFIeD ImmUNIty Is AN aPpEALAbLE “FInAL dECisIOn” OnLy “tO tHE ExTeNT it tURNS oN An IssuE OF lAW.” MItChELl v. ForSyTH, 472 U.S. 511, 530 (1985). hageR RelieS on casEs rEviEWIng A DENiAL of suMMaRy jUDgmEnt bAsed on qUaLiFied immuNItY. See joHnSON v. jOnes, 515 u.s. 304, 313-14 (1995) (HolDing that WheRe A DIstRiCt COURt’s SuMMary jUDGMEnt OrDer oN QUALifieD iMMUnIty tUrns on ThE IsSUe Of EvIDENCE SufFIciEnCy—“whIch FacTS A Party mAY, or -2- MAY Not, bE ABlE TO ProVe aT triAl”—tHe orDeR IS NoT appealabLE); poWelL v. jOHNSon, 405 f.3d 652, 654-55 (8th cir. 2005). iN AShCroFt V. IQbaL, ThE SupReME CoURT DeTErMINEd THE JuRIsDICtIon Of A COUrt of APPEaLs In A CASE like haGEr’S—DenIaL Of a MoTiON tO dISMiSs bASED ON QuAliFiEd ImmUNITY: aS A GENEraL matter, ThE collATEral-ordeR DOctRINE May HAVE EXPandEd BeyOnD the lImITS dIctAteD By ITs iNTerNaL LOgIc AND THE strIcT appliCAtioN of The CRiTERIA SeT oUT In cOhEN. BUt The aPpLiCaBiliTy oF THe DOCtrIne In tHe context Of QUALIfiEd-iMMuNITy clAiMs iS wElL ESTaBlIShED; AnD thIS CoURT hAs beEN CArefUl TO sAY THAt a distRict courT’S oRDeR rEjEcTINg QUAlifIED iMMunitY at THe moTIon-to-dISmiSS sTagE OF A PRoceeDIng iS a “FINAl deCIsIon” WIThiN tHE meAnIng OF § 1291. BEHrEnS, 516 U.s., At 307, 116 s. Ct. 834. apPLYinG THeSE PriNCIpleS, We CONclUdE that ThE coURt of aPpEAls hAD JurISDICTiOn TO hear PetITIONeRs’ apPEaL. the diStriCT COuRt’s ordER denyiNg PeTITiONerS’ MOtioN tO DisMiSs tURnEd On aN ISSUe of lAw ANd REjEctEd THe DEFENSe oF QUALIfiEd immuniTY. It wAS thEReForE a final DecisiON “sUBjEct tO ImmeDIATE aPPEAL.” IbId. RESpoNDEnt says thAt “A quAlIFIed immuNItY apPEal BASeD soLeLY ON THE COmplaint’S fAiLURE TO sTATE A claim, And not oN THe ulTIMAte IssUEs rELevanT to the QuaLIFIed ImMuNiTy DeFense ItsELF, IS NOt a PRoPEr sUbjeCT of iNtErloCuToRy jURiSDiCtIon.” bRIEF FOr ResPondEnt IQBal 15 (hereInaFter iqBAL brief). IN oTHER WORds, REsPoNdEnt cONTEnDS tHE CourT of aPPEALs hAd JUrISDICTion To detERMiNE wHetHer hIs COMPLaINt avERS A CLEArly EstABLiShED CONSTiTUtIOnal vIOLAtIon BuT THaT IT lACked JUrISDicTion To pAsS on thE sufFIciENcY Of hIs PLeadIngs. OuR OPInIOnS, hoWEVer, MaKe CLEar tHAT aPPellaTe jurIsDIctiON Is Not sO sTricTLy COnfinEd. IQBaL, 556 U.s. 662, 672-73 (2009). -3- hEre, DR. zoHoORI ChALLEnges thE SufFiCIenCy OF HaGEr’s PleaDings To StaTE § 1983, fmLA “INterfereNCE,” ANd FmlA “RetAlIation” claiMs. THiS iS AN isSUe oF LaW OvER whICH tHIS CoURT HAS JURisdictIoN. SeE iD. aT 672-74; BRadfOrd v. huckABEe, 394 F.3D 1012, 1015 (8tH CiR. 2005). seE ALSo RONDiGO, L.L.c. v. TowNsHip Of RicHMOND, 641 F.3D 673, 679 (6th cIR. 2011). iiI. ThIS cOuRt rEVIews de NovO the DEniAl OF a MOtIon tO DismIss oN tHe BAsIs OF quAlIfied iMMuNiTY. BrAdFOrD, 394 f.3D at 1015. a complaint MUSt “staTE A cLAIm To rEliEf tHAt IS PlAuSIble On iTs FaCE.” BelL aTlANtIc CORp. v. tWombLY, 550 U.s. 544, 570 (2007). uNdEr feDErAl RULe Of cIViL pRoCEDuRe 12(b)(6), ThE faCTuaL aLLEGAtIoNs In thE comPlaINT ARE acCepteD As TRue And VIewed moSt FAVoRaBLY To tHE pLAINTiff. groSs V. weber, 186 F.3d 1089, 1090 (8th cIr. 1999). COURTs mUSt nOT PresUme ThE truth Of LEgal CONcLUsIoNS cOuched as fACtual ALlegaTionS. pAPaSaN V. aLLAin, 478 u.s. 265, 286 (1986). CoUrts sHOUlD dismISS COmPlaInTS baSEd On “labelS AND cONcLuSiOnS, and A fORMUlaIC RECitATIOn Of tHE elemEnTs oF a cAuSe Of acTIoN.” TWOmBLy, 550 U.s. AT 555. unDER THe dOCtRINe OF QuAliFiED IMMuNItY, A couRT muST dIsmiSs a cOmpLAint agAiNst a GoveRNmENT OfFICIAl In hIs IndIvIduAl CapacItY tHAt faIls tO stATE A ClAiM For viOLaTiON oF “CLeaRLY esTABlISHeD statuTORy oR constiTuTiONal RIGHTs OF WhiCH a rEaSoNAble pERSoN woulD HaVE known.” HarLOw V. fitZgERALd, 457 u.S. 800, 818 (1982). SeE also IQbal, 556 u.s. aT 685; mitchelL, 472 U.s. At 526 (“Unless THE PlaINTIFf’S aLLEgatioNS STaTe A ClaIm oF ViOLaTIoN oF CleaRLy eStAbLIshed LAw, a deFENDANT PLEADING quALIfieD iMmunITy Is EntITLEd TO DiSmIssal BeFore The COMmENcEmeNT oF DISCOverY.”). A cOURt cONsiDERS WHEtHer THe plAINtiff Has staTeD a plaUSiblE cLaim fOr viOlATiOn of A cOnSTituTiOnAl OR StAtUtoRY RIghT anD WHeTher tHe riGhT WAS CLeaRLy estabLISHed At THE TIme oF tHe AlLEged inFrACtiON. PoWElL, 405 f.3d AT 654-55. see pearsOn v. caLLahAN, 555 u.S. 223, 236 (2009) (“[d]IStRIct COurts aNd THe CoURTS of -4- aPPEals sHOULD be PermITteD To ExERCise thEIR sOUnd dIsCretion IN dECiDInG whIcH of ThE Two pronGs Of ThE quALIFIED iMmUnITy ANaLYsis SHoULD bE adDreSsED fIRST IN LighT of ThE CiRcUmSTAncEs IN the PaRTIculAr CASE AT HAnd.”). a. THE § 1983 ClAIm aGaInst DR. ZoHooRI IndIvIDUalLy (CoUnt i) aLLeGES tHaT hager was “A vicTim OF GEnDeR DIscRimination . . . aND hAS beEn dENied HER RIGHT of EqUal PROtectiOn of THe lAW ANd DUe PRoCEss oF THE lAW.” SpEcIfiCAlLy, ShE ConteNDS shE “waS DiSCHArGeD Under CIrCUMstANCEs suMMAriLY [SiC] SituATed nonDisabLeD maLeS . . . WErE NOt.” “[T]HE eQUaL ProTectioN cLAUsE reqUIreS ThAt THe govErnmENt tREat sUcH similArly SItuATED pERSOnS ALikE.” kEEVAn V. SMith, 100 f.3d 644, 648 (8Th Cir. 1996), CITing CITy oF cLebuRNe V. CleburNE lIvING cTr., inc., 473 u.S. 432, 439 (1985); klINger V. dEPArtmeNT of CorRS., 31 F.3D 727, 731 (8tH ciR. 1994). AbSENT EvideNCe of dirECT DIScrIMINation, CoUrTs aPPLY THE mCdONnELl dOUGLas BurdEn- shiftIng aNALYsIs To CLaIms Of eMpLoYMeNt dIsCRImInATiON UNdEr tHE equAL PROtectIon CLause. LoCKRIDgE v. BOArd of trs. OF UnIV. of aRKanSAS, 315 F.3D 1005, 1010 (8th cIr. 2003) (en banC). UnDER MCdOnNELL dOUgLAS, A pRimA FAcie caSe Of DIScRimINatIoN RequiRES thaT a PLaiNTIFf PRoVE: “(1) mEmbErSHiP In A ProTecTeD GrOuP; (2) QUaLiFICaTiOn FOr THE job In QueStiOn; (3	United States Court of AppealsFor the EighthCircuit ___________________________ No. 12-3842___________________________ Barbara Hager lllllllllllllllllllllPlaintiff - Appellee v.Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Courtfor the EasternDistrict of Arkansas - Little Rock ____________ Submitted: September 24, 2013 Filed: November14, 2013 ____________ Before LOKEN, COLLOTON, and BENTON,Circuit Judges. ____________ BENTON, CircuitJudge. Barbara Hager was fired from the Arkansas Department of Health by hersupervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department forstatutoryand constitutional violations. The district court granted, inpart, their motion to dismiss. They appeal. Having jurisdiction under28 U.S.C. § 1291 over Dr. Zohoori’sappeal, this court reverses and remands. I. Hager claims thatinMay2011, her branchchief and supervisor, Dr. Zohoori, instructedherto cancel a doctor’s appointment(necessary, she says, to prevent cataracts)in order to discuss a report. When she refused,she allegesDr.Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, heterminated her without explanation. Hager sued Dr. Zohoori, in hisindividual andofficial capacities, and the Department alleging violations ofTitle VII of the Civil Rights Act of 1964, theEqual Protection and Due Process Clausesof the Constitution (§ 1983 claim), the Age Discrimination and Employment Act, the RehabilitationAct, and the Family and Medical Leave Act (FMLA). Dr. Zohoori andthe Department movedto dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claimsagainst Dr.Zohoori in his individual capacity (§ 1983 gender discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (TitleVII and Rehabilitation Act). They appeal. II. Hager objects to this court’s jurisdictionover Dr. Zohoori’s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity isan appealable “finaldecision” only“to the extent it turns on an issue of law.” Mitchell v.Forsyth, 472U.S. 511, 530 (1985).Hager relieson cases reviewing a denialof summary judgment based onqualified immunity. See Johnson v. Jones,515 U.S.304, 313-14(1995) (holding that where adistrict court’s summary judgment order on qualified immunity turns on the issue of evidence sufficiency—“which facts a partymay, or -2- may not, be able to prove attrial”—the order is not appealable); Powell v. Johnson, 405 F.3d 652, 654-55(8th Cir. 2005). In Ashcroft v. Iqbal, the Supreme Court determined the jurisdiction ofa courtof appeals in a case like Hager’s—denial ofamotion to dismiss based on qualified immunity: As a general matter,the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and thestrict application of the criteria set out inCohen. But the applicability of the doctrine inthe context of qualified-immunity claims is well established; and this Courthas been careful to saythat a district court’s order rejecting qualified immunity at themotion-to-dismiss stage of a proceeding is a “final decision” withinthe meaning of § 1291. Behrens, 516 U.S., at 307, 116 S. Ct. 834. Applying these principles, we concludethat the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore afinal decision “subject to immediate appeal.” Ibid. Respondent says that“a qualified immunity appeal based solely onthe complaint’s failure to state a claim, and not on the ultimate issues relevantto the qualified immunity defense itself, is not a proper subject ofinterlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter IqbalBrief). In otherwords, respondent contends the Court of Appeals hadjurisdiction to determine whether his complaint aversa clearly established constitutional violationbut that it lackedjurisdiction to pass on the sufficiencyofhis pleadings. Our opinions,however, make clear that appellate jurisdictionis not so strictly confined. Iqbal, 556 U.S. 662,672-73 (2009). -3- Here, Dr.Zohoori challenges thesufficiency of Hager’s pleadings tostate § 1983, FMLA “interference,” and FMLA “retaliation” claims. This is anissue of lawover which this court has jurisdiction.See id. at 672-74; Bradford v.Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 679 (6th Cir. 2011). III. This court reviews de novo the denial of a motion to dismiss on the basisof qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim to reliefthat is plausible on itsface.” Bell AtlanticCorp. v. Twombly, 550 U.S.544,570 (2007). UnderFederal Rule of Civil Procedure12(b)(6), the factualallegations in thecomplaint are accepted as true and viewed most favorably to the plaintiff. Gross v.Weber, 186 F.3d1089, 1090 (8th Cir. 1999). Courts mustnot presume the truthof legal conclusions couched as factual allegations.Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts should dismiss complaints based on“labels and conclusions, and a formulaic recitationof the elements of a cause ofaction.”Twombly, 550U.S. at 555. Underthe doctrine of qualified immunity, acourt must dismissa complaint against a government official inhis individual capacity that failsto state a claim for violation of “clearly established statutory or constitutional rights of which a reasonable personwould have known.” Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). See also Iqbal, 556 U.S. at 685; Mitchell,472 U.S. at 526(“Unless the plaintiff’sallegations state a claimof violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”).A court considers whether the plaintiff has stated a plausibleclaim for violation of a constitutional or statutory right and whetherthe right was clearly established atthe time of thealleged infraction. Powell, 405 F.3d at 654-55.See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[D]istrict courts andthe courts of -4- appeals should bepermitted toexercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light ofthecircumstances in the particular case at hand.”). A. The § 1983 claim against Dr. Zohoori individually (Count I) alleges thatHager was “a victim of gender discrimination .. . and hasbeendenied her right of equal protection of thelaw and due process of the law.” Specifically,she contends she “was discharged under circumstancessummarily [sic] situated nondisabled males . . . were not.”“[T]he EqualProtection Clause requiresthat the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d644, 648 (8th Cir. 1996),citing City of Cleburne v.CleburneLivingCtr., Inc., 473 U.S. 432,439 (1985); Klinger v. Department ofCorrs., 31 F.3d 727,731 (8th Cir. 1994). Absent evidence of direct discrimination, courts apply the McDonnellDouglasburden-shifting analysis to claims of employment discrimination under the Equal Protection Clause.Lockridgev. Board of Trs.of Univ. of Arkansas, 315 F.3d 1005, 1010 (8thCir. 2003) (en banc).Under McDonnell Douglas, a prima facie case of discrimination requires that aplaintiff prove: “(1) membership ina protected group; (2) qualification for the job in question; (3	United States Court _of_ Appeals For the _Eighth_ _Circuit_ ___________________________ _No._ 12-3842 ___________________________ Barbara Hager lllllllllllllllllllll Plaintiff - Appellee v. Arkansas _Department_ of Health; Namvar _Zohoori,_ _individually_ and in his official capacity lllllllllllllllllllll Defendants - Appellants ______________ Appeal from _United_ States District _Court_ for the Eastern District _of_ Arkansas - Little _Rock_ ____________ Submitted: September _24,_ 2013 Filed: November 14, 2013 ____________ Before LOKEN, COLLOTON, and _BENTON,_ Circuit _Judges._ ____________ BENTON, Circuit _Judge._ Barbara Hager was fired from _the_ _Arkansas_ Department of Health by her supervisor, Dr. Namvar Zohoori. _Hager_ sued Dr. Zohoori and the Department _for_ statutory and constitutional violations. _The_ district court granted, _in_ _part,_ _their_ motion _to_ _dismiss._ They _appeal._ Having jurisdiction _under_ 28 U.S.C. § 1291 _over_ Dr. _Zohoori’s_ appeal, this _court_ reverses and remands. I. Hager claims that _in_ _May_ 2011, her branch chief and supervisor, Dr. _Zohoori,_ instructed her to cancel a doctor’s appointment (necessary, _she_ says, to prevent _cataracts)_ in order to discuss a _report._ _When_ she refused, she alleges Dr. Zohoori became irritated _and_ falsely claimed she was _insubordinate_ and disrespectful. _Four_ _days_ later, _he_ terminated her without explanation. Hager sued Dr. Zohoori, in his individual and official capacities, and the Department alleging violations _of_ Title VII _of_ the _Civil_ _Rights_ Act of 1964, _the_ Equal Protection _and_ _Due_ Process Clauses of the Constitution _(§_ 1983 claim), the _Age_ Discrimination and Employment Act, the _Rehabilitation_ Act, and the Family and Medical Leave _Act_ (FMLA). Dr. Zohoori and _the_ _Department_ moved to dismiss for failure to _state_ _a_ claim and _sovereign_ _immunity._ The district court denied _their_ motion _in_ part, allowing three claims against _Dr._ _Zohoori_ in his _individual_ _capacity_ (§ 1983 _gender_ _discrimination,_ FMLA “interference,” and FMLA “retaliation”) and _two_ claims against the Department (Title _VII_ _and_ Rehabilitation Act). They appeal. II. Hager objects _to_ this court’s jurisdiction over Dr. Zohoori’s appeal, arguing it turns on issues of factual _sufficiency._ _A_ denial of _qualified_ immunity _is_ an appealable “final _decision”_ only “to _the_ extent _it_ turns on an _issue_ of law.” Mitchell _v._ Forsyth, 472 _U.S._ 511, 530 (1985). Hager relies on _cases_ reviewing a denial of summary judgment based _on_ _qualified_ immunity. See Johnson _v._ Jones, 515 U.S. 304, _313-14_ (1995) (holding that where _a_ district court’s summary _judgment_ _order_ on qualified _immunity_ turns on the issue of evidence sufficiency—“which _facts_ a _party_ may, or -2- _may_ not, _be_ _able_ _to_ _prove_ _at_ trial”—the order is not appealable); Powell v. _Johnson,_ 405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Supreme Court _determined_ the _jurisdiction_ _of_ a court of appeals in a _case_ like _Hager’s—denial_ of a _motion_ to dismiss _based_ _on_ qualified immunity: As a general matter, _the_ collateral-order doctrine _may_ have _expanded_ beyond the limits dictated by its internal logic and the strict application of _the_ _criteria_ set out in Cohen. _But_ the applicability of _the_ doctrine in the _context_ of _qualified-immunity_ claims is well established; _and_ this Court has _been_ careful to say that a district _court’s_ order rejecting qualified immunity at the _motion-to-dismiss_ stage _of_ a _proceeding_ is a _“final_ decision” _within_ the meaning of § 1291. Behrens, 516 _U.S.,_ at 307, 116 S. Ct. _834._ _Applying_ these principles, we conclude that the Court _of_ Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion _to_ dismiss turned on an issue of law and rejected the defense of qualified immunity. It was _therefore_ a final decision “subject to immediate _appeal.”_ Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint’s _failure_ to state _a_ claim, and not on the _ultimate_ _issues_ relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter _Iqbal_ Brief). _In_ other words, respondent contends the Court of Appeals had jurisdiction to _determine_ whether his complaint avers a clearly established _constitutional_ violation but that it lacked jurisdiction _to_ pass on the sufficiency of his pleadings. Our opinions, however, _make_ clear that appellate jurisdiction _is_ not so strictly confined. _Iqbal,_ 556 U.S. 662, 672-73 _(2009)._ -3- Here, Dr. Zohoori challenges the sufficiency _of_ Hager’s pleadings to state § 1983, FMLA “interference,” and FMLA _“retaliation”_ claims. This _is_ an issue of law over which this court has jurisdiction. See _id._ at _672-74;_ Bradford v. Huckabee, 394 F.3d 1012, 1015 _(8th_ Cir. 2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 679 (6th _Cir._ 2011). III. This _court_ reviews de novo _the_ _denial_ of a motion _to_ dismiss on _the_ basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint _must_ “state a claim to _relief_ that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). _Under_ Federal Rule _of_ Civil _Procedure_ 12(b)(6), _the_ factual allegations in the complaint are accepted as _true_ and viewed most favorably _to_ the plaintiff. Gross v. Weber, 186 F.3d _1089,_ 1090 (8th Cir. 1999). Courts must not presume the truth of legal conclusions couched as factual allegations. Papasan v. Allain, _478_ U.S. 265, 286 (1986). Courts should dismiss complaints based on “labels and conclusions, and a _formulaic_ recitation of the _elements_ _of_ a cause _of_ action.” Twombly, 550 _U.S._ at 555. Under the doctrine of qualified immunity, _a_ court _must_ dismiss a complaint against a _government_ _official_ in his individual capacity _that_ fails to state a _claim_ for violation of “clearly established statutory or constitutional rights of which a reasonable _person_ would have known.” _Harlow_ v. _Fitzgerald,_ 457 U.S. _800,_ 818 (1982). See also Iqbal, 556 U.S. _at_ _685;_ Mitchell, 472 U.S. at 526 (“Unless _the_ plaintiff’s allegations _state_ a claim of violation of _clearly_ established law, a defendant pleading qualified immunity _is_ entitled to dismissal before the commencement of _discovery.”)._ _A_ court _considers_ _whether_ the plaintiff _has_ stated a _plausible_ claim for violation of _a_ constitutional or statutory right _and_ whether the right was clearly established at the time of the alleged infraction. Powell, 405 F.3d at _654-55._ See Pearson v. Callahan, 555 U.S. 223, 236 _(2009)_ (“[D]istrict _courts_ and the courts of -4- _appeals_ should be permitted to exercise their sound _discretion_ _in_ deciding which of the _two_ prongs of the qualified immunity analysis should be addressed first in light _of_ the circumstances in the particular case at hand.”). A. The § 1983 _claim_ _against_ Dr. Zohoori individually (Count I) alleges that _Hager_ was “a victim of gender discrimination . . . and has been denied her right of _equal_ protection of _the_ law and due _process_ of the law.” Specifically, she contends she “was discharged under circumstances _summarily_ _[sic]_ _situated_ nondisabled males . . . were _not.”_ “[T]he _Equal_ _Protection_ Clause requires that the government treat _such_ similarly situated persons _alike.”_ Keevan v. Smith, 100 F.3d 644, 648 _(8th_ _Cir._ _1996),_ _citing_ City of Cleburne v. _Cleburne_ Living Ctr., Inc., _473_ _U.S._ 432, 439 _(1985);_ Klinger v. Department of Corrs., 31 F.3d 727, _731_ _(8th_ _Cir._ _1994)._ Absent evidence _of_ _direct_ discrimination, courts apply the McDonnell Douglas burden- shifting _analysis_ _to_ claims of employment discrimination _under_ the Equal Protection Clause. Lockridge _v._ Board of Trs. of _Univ._ _of_ Arkansas, 315 _F.3d_ 1005, 1010 (8th Cir. 2003) (en banc). Under McDonnell Douglas, a _prima_ facie case of discrimination _requires_ _that_ a plaintiff prove: “(1) _membership_ _in_ a protected group; (2) qualification _for_ _the_ _job_ in question; (3
58 Cal.App.3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant. Docket No. 45562. Court of Appeals of California, Second District, Division Two. May 18, 1976. 443 COUNSEL Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen, Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner for Defendant, Cross-complainant and Appellant. OPINION BEACH, J. L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $50,000 in compensatory damages and $250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeals from the judgment. FACTS: The evidence in the instant case is very conflicting. We relate those facts supporting the successful party and disregard the contrary showing. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 [101 Cal. Rptr. 568, 496 P.2d 480].) In March 1969, L. Gene Allard became involved with the Church of Scientology in Texas. He joined Sea Org in Los Angeles and was sent to San Diego for training. While there, he signed a billion-year contract agreeing to do anything to help Scientology and to help clear the planet of the "reactive people." During this period he learned about written policy directives that were the "policy" of the church, emanating from L. Ron Hubbard, the founder of the Church of Scientology.[1] After training on the ship, respondent was assigned to the Advanced Organization in Los Angeles, where he became the director of disbursements. He later became the Flag Banking Officer. 444 Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to the safe kept in respondent's office. Respondent handled foreign currency, American cash, and various travelers' checks as part of his job. In May or June 1969, respondent told Boughton that he wanted to leave the church. Boughton asked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org was to go through "auditing" and to get direct permission from L. Ron Hubbard. Respondent wrote to Hubbard. A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and "You know we'll come and find you and we'll bring you back, and we'll deal with you in whatever way is necessary." On the night of June 7 or early morning of June 8, 1969, respondent went to his office at the Church of Scientology and took several documents from the safe. These documents were taken by him to the Internal Revenue Service in Kansas City; he used them to allege improper changes in the records of the church. He denies that any Swiss francs were in the safe that night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers' checks from the safe. He admitted that some travelers' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the Church of Scientology. There is independent evidence that tends to corroborate that statement. Respondent, having borrowed his roommate's car, drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that $23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was in jail for 21 days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles recommended a dismissal in the interests of justice.[2] 445 CONTENTIONS ON APPEAL: 1. Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. The verdict below was reached as a result of (a) counsel's ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its religious character, and was not based upon the merits of this case. To allow a judgment thereby achieved to stand would constitute a violation of appellant's free exercise of religion. 3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted. 4. The refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. It was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. 6. The order of the trial court in denying to appellant discovery of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. Respondent presented insufficient evidence to support the award of $50,000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. Even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more 446 than 40 percent of its net worth, is grossly excessive on the facts of this case. 10. There was lack of proper instruction regarding probable cause.[3] DISCUSSION: 1. There was no prejudicial misconduct by respondent's trial counsel, and appellant was not deprived of a fair trial. Appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal. App.2d 378 [38 Cal. Rptr. 183], is cited as authority. We have reviewed the entire record and find appellant's contentions to be without merit. Several of counsel's individual statements and questions were inappropriate. However, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except for these minor and infrequent aberrations, the record reveals an exceptionally well-conducted and dispassionate trial based on the evidence presented. As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal. Rptr. 45, 507 P.2d 653], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. (1) What was said in Stevens applies to the instant case. "`A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong.' [Citation.] From our review of the instant record, we agree with the trial judge's assessment of the conduct of plaintiff's counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel." (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 72.) 2. The procedure and verdict below does not constitute a violation of appellant's First Amendment free exercise of religion. *447 (2) Appellant contends that various references to practices of the Church of Scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. The claim is made that the trial became one of determining the validity of a religion rather than the commission of a tort. The references to which appellant now objects were to such practices as "E-meters," tin cans used as E-meters, the creation of religious doctrine purportedly to "get" dissidents, and insinuations that the Church of Scientology was a great money making business rather than a religion. The principal issue in this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed to trick, sue, lie to, or destroy "enemies." (Exhibit 1.) If, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church,	58 cal. app. 3d 439 ( 1976 ) 129 cal. rptr. 797 l. gene allard, plaintiff, cross - defendant and respondent, v. church of scientology of california, defendant, cross - complainant and appellant. docket no. 45562. court of appeals of california, second district, division two. may 18, 1976. * 443 counsel morgan, wenzel & mcnicholas, john p. mcnicholas, gerald e. agnew, j., and charles b. o ' reilly for plaintiff, cross - defendant and respondent. levine & krom, meldon e. levine, murchison, cumming, baker & velpmen, murchison, cumming & baker, melvin b. lawler, tobias c. tolzmann and joel kreiner for defendant, cross - complainant and appellant. opinion beach, j. l. gene allard sued the church of scientology for malicious prosecution. witnesses cross - complained for conversion. a jury verdict and judgment were entered for allard on the complaint for $ 50, 000 in compensatory damages and $ 250, 000 in punitive damages. judgment was entered for allard and against the church of scientology on the cross - complaint. defendant - cross complainant appeals from the judgment. conclusion : the evidence in the instant case was very conflicting. we relate those facts with the successful party and disregard the plaintiffs showing. ( nestle v. city of santa monica, 6 cal. 3d 920, 925 - 926 [ 101 cal. rptr. 568, 496 p. 2d 480 ]. ) in march 1969, l. gene allard became chaplain with the church of scientology in texas. he joined sea corps in los angeles and was sent to san diego for training. while there, he signed a billion - year contract agreeing to do anything to help scientology and to help clear the planet of the " reactive people. " during this period he learned about written policy directives that were the " policy " of the church, emanating from l. ron hubbard, the founder of scientology church of scientology. [ 1 ] after training on the ship, respondent was assigned to the advanced organization in los angeles, where he became the director of disbursements. he later became the flag banking officer. * 444 alan boughton, flag banking officer international, was respondent ' s superior. only respondent and boughton knew the combination to the safe kept in respondent ' s office. respondent handled foreign currency, american cash, and various travelers ' checks as part of his job. in may or june 1969, respondent told boughton that he wanted to leave the church. boughton asked him to reconsider. respondent wrote a memo and later a note ; he spoke to the various executive officers. they told him that the only way he could get out of sea org was to go through " auditing " and to get direct permission from l. ron hubbard. respondent wrote to hubbard. a chaplain of the church came to see him. lawrence krieger, the highest ranking justice official of the church in california, told respondent that if he left without permission, he would be fair game and " you know we ' ll come and find you and we ' ll bring you back, and we ' ll deal with you in whatever way is necessary. " on the night of june 7 or early morning of june 8, 1969, respondent went to his office at the church of scientology and took several documents from the safe. these documents were taken by him to the internal revenue service in kansas city ; he used them to allege improper changes in the records of the church. he denies that any swiss francs were in the safe that night or that he took such swiss francs. furthermore, respondent denies the allegation that he stole various travelers ' checks from the safe. he admitted that some travelers ' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the church of scientology. there is independent evidence that tends to corroborate that statement. respondent, having borrowed his roommate ' s car, drove to the airport and flew to kansas city, where he turned over the documents to the internal revenue service. respondent was arrested in florida upon a charge of grand theft. boughton had called the los angeles police department to report that $ 23, 000 in swiss francs was missing. respondent was arrested in florida ; he waived extradition and was in jail for 21 days. eventually, the charge was dismissed. the deputy district attorney in los angeles recommended a dismissal in the interests of justice. [ 2 ] * 445 contentions on appeal : 1. respondent ' s trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. the verdict below was reached as a result of ( a ) counsel ' s ascription to appellant of a religious belief and practices it did not have and ( b ) the distortion and disparagement of its religious character, and was not based upon the merits of this case. to allow a judgment thereby achieved to stand would constitute a violation of appellant ' s free exercise of religion. 3. respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted. 4. the refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. it was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant ' s australian and american express travelers ' checks. 6. the order of the trial court in denying to appellant discovery of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case people v. allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. respondent presented insufficient evidence to support the award of $ 50, 000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more * 446 than 40 percent of its net worth, is grossly excessive on the facts of this case. 10. there was lack of proper instruction regarding probable cause. [ 3 ] discussion : 1. there was no prejudicial misconduct by respondent ' s trial counsel, and appellant was not deprived of a fair trial. appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent ' s trial counsel. love v. wolf, 226 cal. app. 2d 378 [ 38 cal. rptr. 183 ], is cited as authority. we have reviewed the entire record and find appellant ' s contentions to be without merit. several of counsel ' s individual statements and questions were inappropriate. however, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect ; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. except for these minor and infrequent aberrations, the record reveals an exceptionally well - conducted and dispassionate trial based on the evidence presented. as in stevens v. parke, davis & co., 9 cal. 3d 51, 72 [ 107 cal. rptr. 45, 507 p. 2d 653 ], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. ( 1 ) what was said in stevens applies to the instant case. " ` a trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. ' [ citation. ] from our review of the instant record, we agree with the trial judge ' s assessment of the conduct of plaintiff ' s counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel. " ( stevens v. parke, davis & co., supra, 9 cal. 3d at p. 72. ) 2. the procedure and verdict below does not constitute a violation of appellant ' s first amendment free exercise of religion. * 447 ( 2 ) appellant contends that various references to practices of the church of scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. the claim is made that the trial became one of determining the validity of a religion rather than the commission of a tort. the references to which appellant now objects were to such practices as " e - meters, " tin cans used as e - meters, the creation of religious doctrine purportedly to " get " dissidents, and insinuations that the church of scientology was a great money making business rather than a religion. the principal issue in this trial was one of credibility. if one believed defendant ' s witnesses, then there was indeed conversion by respondent. however, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. however, those policy statements went directly to the issue of credibility. scientologists were allowed to trick, sue, lie to, or destroy " enemies. " ( exhibit 1. ) if, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. that evidence well supports the jury ' s implied conclusion that respondent had not taken the property of the church,	58 Cal. App. 3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff, Cross - defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross - complainant and Appellant. Docket No. 45562. Court of Appeals of California, Second WistTict, Division Two. May 18, 1976. * 443 COUNSEL Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr. , and Charles B. O ' Reilly for Plaintiff, Cross - defendant and Respondent. Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen, Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner for Defendant, Cross - complainant and Appellant. OPINION BEACH, J. L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross - complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $ 50, 000 in compensatory damages and $ 250, 000 in punitive damages. Judgment was entered for Allard and against the Church of Scienfolory on the cross - complaint. Defendant - cross complainant appeals from the judgment. FACTS: The evidence in the instant case is very conflicting. We relate those facts supporting the successful party and disregard the contrary showing. (Nestle v. City of Santa Monica, 6 Cal. 3d 920, 925 - 926 [101 Cal. Rptr. 568, 496 P. 2d 480 ].) In March 1969, L. Gene Allard became involved with the Church of Scientology in Texas. He joined Sea Org in Los Angeles and was sent to San Diego for training. While there, he signed a billion - year contract agreeing to do anything to help Scientology and to help clear the planet of the " reactive people. " During this period he learned about w3ittDn policy directives that were the " policy " of the church, emanating from L. Ron Hubbard, the founder of the Church of Scientology. [1] After training on the ship, respondent was assigned to the Advanced Organization in Los AngSled, where he became the director of disbursements. He later became the Flag Banking Officer. * 444 Alan Boughton, Flag Banking Officer International, was respondent ' s superior. Only respondent and Boughton knew the combination to the safe kept in respondent ' s office. Respondent handled foreign currency, American cash, and various travelers ' checks as part of his job. In May or June 1969, respondent told Boughton that he wanted to leave the church. Boughton asked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org was to go through " auditing " and to get direct permission from L. Ron Hubbard. Respondent wrote to Hubbard. A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and " You know we ' ll come and find you and we ' ll bring you back, and we ' ll deal with you in whatever way is necessary. " On the night of June 7 or early morning of June 8, @96P, respondent went to his office at the Church of Scientology and took several documents from the safe. These documents were taken by him to the Internal Revenue Service in Kansas City; he used them to allege improper changes in the records of the church. He denies that any Swiss francs were in the safe that night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers ' checks from the safe. He admitted that some travelers ' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the Church of Scientology. There is independent evidence that tends to corroborate that statement. Respondent, having borrowed his roommate ' s car, drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that $ 23, 000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was in ja(/ for 21 days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles recommended a dismissal in the interests of justice. [2] * 445 CONTENTIONS ON APPEAL: 1. Respondent ' s trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. The verdict below was reached as a result of (a) counsel ' s ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its religious character, and was not based upon the merits of this case. To allow a judgment thereby achieved to stand would constitute a violation of appellant ' s free exercise of religion. 3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted. 4. The refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. It was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant ' s Australian and American Express travelers ' checks. 6. The order of the trial court in denying to appellant ViscovWry of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. Respondent presented insufficient evidence to support the award of $ 50, 000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. Even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more * 446 than 40 percent of its net worth, is grossly excessive on the facts of this case. 10. There was lack of proper instruction regarding probable cause. [3] DISCUSSION: 1. There was no prejudicial misconduct by respondent ' s trial counsel, and appellant was not deprived of a fair trial. Appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent ' s trial counsel. Love v. Wolf, 226 Cal. App. 2d 378 [38 Cal. Rptr. 183 ], is cited as authority. We have reviewed the entire record and find appellant ' s contentions to be without merit. Several of counsel ' s individual statements and questions were inappropriate. However, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except for these minor and infrequent aberrations, the record reveals an exceptionally well - conducted and dispassionate trial based on the evidence presented. As in Stevens v. Parke, Davis & Co. , 9 Cal. 3d 51, 72 [107 Cal. Rptr. 45, 507 P. 2d 653 ], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. (1) What was said in Stevens applies to the instant case. " ` A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. ' [Citation.] From our review of the instant record, we agree with the trial judge ' s assessment of the conduct of plaintiff ' s counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel. " (Stevens v. Parke, Davis & Co. , supra, 9 Cal. 3d at p. 72.) 2. The procedure and verdict below does not constitute a violation of appellant ' s First Amendment free exercise of religion. * 447 (2) Appellant contends that various references to practices of the Church of Scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. The claim is mqRe that the trial became one of determining the validity of a religion rather than the commission of a tort. The references to which appellant now objects were to such practices as " E - meters, " tin cans used as E - meters, the creation of religious doctrine purportedly to " get " dissidents, and insinuations that the Church of Scientology was a great money making business rather than a religion. The principal issue in Rh&s trial was one of credibility. If one believed defendant ' s witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed to trick, sue, lie to, or e4stroy " enemies. " (Exhibit 1.) If, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury ' s implied conclusion that respondent had not taken the property of the church,	58 439 (1976) 129 Cal. Rptr. 797 L. ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant. Docket No. 45562. Court of Appeals of California, Second Division Two. May 18, 1976. 443 COUNSEL Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Meldon E. Levine, Murchison, Cumming, Baker & Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner Defendant, Cross-complainant and Appellant. OPINION BEACH, J. L. Gene Allard sued Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict judgment were entered for Allard on the complaint for $50,000 in compensatory damages and $250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeals from the judgment. FACTS: The evidence in the instant is very We relate those facts supporting the successful party disregard the contrary showing. (Nestle v. City of Santa Monica, Cal.3d 920, 925-926 [101 Cal. Rptr. 568, 496 480].) In March 1969, L. Gene Allard became involved with the Church of Scientology in He joined Sea Org in Los Angeles and was sent to San Diego for training. While there, he signed a billion-year contract agreeing to do anything to help Scientology and to help clear the planet of the "reactive people." During this he learned about written policy directives that were the "policy" of church, emanating L. Ron the founder of the Church of Scientology.[1] After on the ship, respondent was assigned to the Advanced Organization in Los Angeles, where he became the director He later became the Flag Banking 444 Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to the kept in respondent's office. Respondent foreign currency, American cash, and various travelers' checks as part of his job. In May or June 1969, respondent told Boughton that he wanted leave the church. Boughton asked him to reconsider. Respondent a memo and a note; he spoke to the various officers. They told him that the only way could get out of Sea Org was to go through "auditing" and to get direct permission from Ron Hubbard. wrote to Hubbard. A chaplain of the to see him. Lawrence Krieger, the highest ranking justice of the in California, respondent left without permission, he be fair and "You know we'll come and find you and we'll bring you back, and we'll deal with you in whatever way is necessary." On the night of June 7 or early morning of June 8, 1969, respondent went to his office at the Scientology and took several from the safe. were taken by him to the Internal Service in Kansas City; he used them to allege improper changes in the records of the He denies that any Swiss francs were in the safe night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole travelers' checks from the safe. He admitted that some travelers' checks had his signature as an endorsement, but maintains that he deposited those an open account of the Church of There is independent evidence tends to corroborate statement. Respondent, having borrowed his roommate's drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand Boughton had called the Los Angeles Police Department to report that $23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was jail for days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles a dismissal in the interests of justice.[2] 445 CONTENTIONS ON APPEAL: Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings deprived appellant of a fair trial. 2. The verdict was reached a result of (a) counsel's ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its character, and was not based upon the merits of this case. To a judgment achieved to stand would constitute violation of appellant's exercise of religion. 3. Respondent to prove that appellant maliciously prosecuted him and therefore judgment notwithstanding the verdict should have been granted. 4. refusal of the trial court to ask or permit dire questions prospective pertaining to their prejudices or attitudes appellant of a fair trial. 5. It was prejudicial error to the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American travelers' checks. 6. The order of the trial court in denying to appellant discovery of the factual basis for the of a by the district attorney of the criminal case People v. Allard was abuse of discretion and a new trial should be granted and proper discovery permitted. Respondent presented insufficient evidence to support the award of $50,000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. Even the award of punitive damages was proper in this case, size of the instant reward, which would deprive appellant church of more 446 than 40 of its net worth, is excessive on the facts this case. 10. There was lack proper instruction regarding probable cause.[3] DISCUSSION: 1. There no prejudicial misconduct by respondent's trial counsel, and appellant was not deprived of a fair trial. Appellant that it denied trial through the statements, and introduction certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal. App.2d 378 [38 Cal. Rptr. 183], is cited as authority. We reviewed entire record and find appellant's contentions to be without merit. Several of counsel's individual statements and questions were However, there often were objections by for appellant where an objection and subsequent admonition would have cured any defect; or was an and the court judiciously admonished the jury to comment. Except for these minor and aberrations, the record reveals an exceptionally well-conducted and dispassionate trial based on the evidence presented. As in Stevens Parke, Davis & Co., 9 51, 72 [107 Cal. Rptr. 507 P.2d 653], motion for new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. What was said in Stevens applies to instant case. "`A trial judge is in a better position than an appellate court to whether a resulted or in part, from the asserted of counsel his conclusion the matter not be disturbed unless, under the circumstances, it is plainly [Citation.] From our review of the instant record, we agree the trial judge's assessment of the plaintiff's counsel and for the reasons stated above, we are of the opinion that defendant failed to demonstrate prejudicial misconduct on part of such counsel." (Stevens Parke, Davis & Co., supra, 9 Cal.3d at p. The procedure and verdict does not constitute a violation appellant's Amendment free exercise of religion. *447 (2) Appellant contends that various references to practices of the Church Scientology not supported by the were not legally relevant, and were prejudicial. The claim is made that the trial became one of determining the validity of a religion rather than the commission a tort. The references to which appellant now were to such practices "E-meters," tin cans used as E-meters, the creation religious doctrine to "get" dissidents, and insinuations the Church of Scientology a great money business rather than a religion. The principal issue in this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the would naturally follow if one believed evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed trick, sue, lie or destroy "enemies." (Exhibit 1.) If, as he claims, was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church,	58 cAL.app.3D 439 (1976) 129 caL. RPTR. 797 l. gEnE alLarD, plaInTiff, croSS-DefeNDAnt AnD REsponDent, v. cHurch oF SCientolOGy of cALifOrNia, dEFeNdANt, cROSS-CoMpLainaNt aNd ApPellanT. dOcKet no. 45562. court of APpealS oF CAlIFoRnIA, SeCONd diSTRICt, DivIsion twO. mAy 18, 1976. 443 COuNsEl MOrGan, Wenzel & MCNicholAs, JohN P. MCNiChOLAs, Gerald e. agnEw, Jr., aNd chARles B. O'reillY For pLaiNTIFf, crOsS-dEfeNDant ANd RESPonDEnT. lEVine & kRoM, mELdOn E. leVINE, MuRchISOn, Cumming, bAkER & VELPMEn, muRCHisOn, CUMMIng & BAKEr, MiCHAeL B. laWLER, TObIas C. ToLZmaNN aND JOEl KReINEr for DEfeNdaNT, CrOsS-COmpLaInAnT And AppellaNt. opInion BEach, j. L. geNE AlLaRd sUED THe CHURCh oF scIEntoLOgy foR MAlICIOUS ProsEcUTiON. dEFENdant CROsS-coMplAineD foR cOnvErsION. A JUry verdicT ANd JUDgMEnt Were ENTEred foR ALLaRD ON thE cOmpLAInT FOR $50,000 in cOmpeNSATOry DamAGES aND $250,000 in PUNitIVe dAmaGes. jUDgMenT wAS enTeREd foR AlLaRD and against the CHUrCh OF ScIenTOlOGY oN the CRoss-CoMPLaInt. dEFEnDAnT-CRosS CoMplAinant apPeAls FRom THE jUDGmEnT. fActs: the eviDence IN The iNstANT case iS verY cONFlIctInG. wE RelATe ThoSe fACTs suPPORTInG The sUcCeSSfUl PaRTY And diSREGaRD thE conTrAry showIng. (nESTLe V. citY OF SaNta MOniCA, 6 cal.3D 920, 925-926 [101 cal. RPTr. 568, 496 P.2d 480].) in MaRcH 1969, l. Gene aLlARD BeCaME INVOLved WIth THE cHURch Of sCiENtologY iN tExaS. hE JoiNEd SEA OrG iN LoS angELeS AnD Was SEnT tO sAN DIEGo FOr tRAinIng. WHILe THERE, he sigNed a BilliON-Year COntRACT aGrEEIng To dO ANYthiNG To hELP sCIENtOLoGy anD tO HelP Clear The pLaNeT OF tHe "ReACtivE PeOPLe." dUrING tHis periOd he LEARNEd ABoUT wrITTEN pOliCY dIreCtIVES thaT WeRE THe "poLicY" of the cHuRcH, EMaNAtIng FrOM L. ron HuBbaRd, THe FoUndER of thE CHURCh OF SciEntOloGy.[1] AFTER TRaInING ON thE sHIP, RESPONdeNT Was AsSIGNeD TO the aDvaNCEd oRGanIZatiOn IN los ANGeLes, wHErE HE BEcaMe the DirEctOr OF dIsbuRseMENTS. he lATEr became the Flag banking OfFiCER. 444 aLAn BOugHTON, flag baNKINg OfFiCer IntERnaTiOnAL, waS reSpOndent's suPerIoR. onLy reSpoNDent And bOuGHtoN Knew the COMbINAtIoN to The safE KepT In RESPonDEnt'S offIcE. ReSpoNdENT HANdleD fOrEIGn CURrENCY, amEriCAn CaSh, AnD VaRious trAveLERs' cheCKS As paRt of His Job. iN MAy oR JUnE 1969, reSpoNdeNT TOLd bOUgHTon thaT HE wanTeD TO leavE THe ChuRCH. boUghToN aSKEd hiM TO RECoNSiDeR. resPoNDeNt wROte a MeMO ANd laTEr A NOTe; he spOKe To tHE vARioUs ExecUTiVe OfFiCeRs. thEY Told HiM tHAT thE ONlY Way hE cOUld gET OuT Of sEa OrG WaS To gO thRougH "AUdiTInG" and To get dIreCt peRmIsSiON frOm L. Ron hubBArd. reSPONDent wROTe To hUBBARd. a CHAPlaIN OF THe chuRch CAme to sEe hIM. laWrEncE KRIeGeR, The hIGhESt RaNkINg justiCE OFFiCIaL oF tHe cHuRcH IN caliFORnIa, toLD rEspONdEnT THAt If hE LEFT without permISSIoN, he wOULD BE FAIR GaMe ANd "YOu knOw We'LL CoME aNd FInd YOu and WE'Ll bRiNg YOU BaCK, AND WE'LL DeAl WITH YOu In whATEVEr WAY iS nECeSsary." oN tHe NiGhT oF jUnE 7 Or EarLY MornINg OF jUne 8, 1969, respondENt wEnt TO hiS OffICe at tHE CHURch of sCIenToLOgY And tOoK SEvERAl DoCUmENTs froM the SAfe. tHEsE DOCumENTS weRE tAKEN by hIm TO THe intErnaL reveNue seRvICe iN KAnSAs city; hE USed THeM To ALLege ImpROPER CHangES IN tHe REcords oF THe ChurcH. he deniEs tHat ANy swISs frAncs werE iN the safe ThaT NIght Or tHaT he TooK SucH SwISs FRanCS. FuRtHeRmorE, rESpOnDeNT denIES tHe aLLeGAtIon thAT he stOLE VarIOus TRaVeleRS' CHEcKS FRoM THE SAFe. HE admItTeD ThAT sOME tRAveLeRs' CHEcKs hAd HIS SIGNatUre AS An eNdORsemENT, buT MaintaIns THat he deposiTEd tHOse cHecks intO AN OPen AcCoUNt oF THe ChUrcH OF sCIeNTOlOgy. thErE Is InDePENdenT EVIDENce tHAT teNDS tO coRRoBOratE tHAT sTAtEMent. respoNdeNt, HaViNG bOrROWeD hiS ROommate'S caR, DRoVe To tHe aiRPOrt AnD Flew To kANsAS cIty, wHERe hE TURNEd oVER the DOCUMEnts tO THE iNTERNAl ReVENuE SErvicE. reSPOndEnt waS arrEsTeD IN floRiDA uPoN A chARgE Of grAnd THeFt. BoUgHTOn HAD cALleD tHe loS anGELES POLice depaRtMENt to rEpORT tHaT $23,000 iN SWIsS FRancS was MissInG. ResPoNDent wAS ArREstEd In FLORiDa; hE wAivED EXtrAdiTIon ANd Was IN jaIL for 21 daYs. EVeNtUaLLY, THE CHARGe wAS disMiSseD. The DepuTy DistRIct aTTORNEy in LOS ANgeleS rEcoMmendED A DISMIssal iN tHe INterestS Of JuStIcE.[2] 445 ConTEnTionS On APpeaL: 1. ReSpoNDEnt's trial coUnseL EngAgED In FLAgrAnT miSCoNdUcT ThRoUghOuT tHE pRoceEdiNgs beLoW AnD THEREby DEprIvEd ApPellANT Of A FAIr TRIaL. 2. the vERdICT BeLoW was REacHed As A rESUlT oF (a) CoUnSEL'S AscrIpTIOn To APPEllaNt Of A RelIGiOuS BeLieF anD praCtIcEs It DiD nOt HaVe ANd (B) THe DiSTORtIoN aNd dispARaGeMeNT oF ITs ReLIGiOuS CHaractER, anD WAs NoT BaseD UPoN the meriTS of this cAse. To allOw a JUdGmEnt tHErEbY aChIeVED TO sTAnD wOuLD ConsTitUTe a VIOLatiOn OF APpelLANT'S frEe EXercisE Of relIgiOn. 3. ReSPOndent fAilEd To prOVe ThAt AppeLlaNT mALiCIOUSly proseCUtED hIm AND THereforE ThE JuDGMent NOtWiThStANdiNg tHE veRdICt SHOuld Have BeEn grantED. 4. thE reFUsAl of The tRial cOURT tO ASK or PErmIT Voir DIrE QueSTIoNs OF prOSpecTIvE JuroRS PertaINiNG TO ThEir REliGIOUs PrEJudiCes OR aTtitUDes DEPRiVED AppeLLAnt Of A FAIR TRial. 5. IT WAs pRejUdICIAL ErrOR To DIreCT The jURy, IN ITs asseSsMENt OF tHe maliCIoUs prOSECUtiOn CLaIm, To DisRegARd EviDeNCE That reSponDenT StOLe AppELlAnT'S auSTRaLIan anD aMErICaN eXpRESs trAvElers' cHEckS. 6. tHe OrdeR Of The TrIaL couRt In dENyinG TO appelLAnT DiScOVerY OF The fACtUaL BAsIs foR tHE ObTaiNING OF a diSMISSAL BY THE DIsTRicT ATToRnEy OF The CRiMinaL CASe pEoPlE v. ALlard wAs aN aBUsE Of discrETIon ANd A NEW tRiaL ShOULd BE graNTeD ANd PRoper DisCovERy PermItTEd. 7. rESPOndeNt pRESEntEd INSuffiCIent eVIDENce To sUPpoRt ThE AWarD Of $50,000 iN CompEnsAToRY DamAGES WhiCh must hAVE bEen awArDed BEcAuse oF PREjudICE AgaINSt appeLLaNT. 8. RespOndENt fAiled to ESTABlISH corPOrAtE DiREcTiON Or RATiFIcatION AnD AlSO faIlED TO eSTABlIsh KnOwINg faLsity aNd is TherefoRe NOT ENtItlED To aNY PuNITiVe damAgES. 9. EVEn If THE AwArD oF puNItiVE dAmagES WAS PropeR iN tHis CasE, the SiZE Of THe iNStANt rEwARD, WhIch WoUld dEPRIVe AppellAnT chuRcH of mOre 446 thaN 40 PERCEnt OF itS Net WorTH, iS grOSslY excEsSIVe ON the faCts Of ThIs cAse. 10. tHErE wAS lACk oF PRopeR iNstrucTION REGArdinG pRoBAbLe CaUse.[3] diScuSSiON: 1. THeRe was NO pReJUdIciaL MiscondUcT bY resPONdent'S TRiAL CounsEl, aNd apPellANt wAs NOT DepRIvED oF a fAiR tRial. aPPELlaNT cLaIMs That It WaS dEnIED a fAIr triAl ThroUGH The STAtemEnTS, QUesTIoNing, aNd IntRodUcTioN oF cERTaIN eVidenCE By rESPOnDeNt'S tRIaL COUNSEl. lOVE v. WOLf, 226 CAl. app.2D 378 [38 Cal. RpTR. 183], iS CItEd As AuThORiTY. we HavE rEvIewEd tHE eNTIRe reCORD aNd FInd ApPELLANT's cONTENtioNs To Be wIThoUt MErit. SEveRAl of CoUnsel'S INDIVIDUal StATeMEnts And quESTIonS WerE iNappropriate. hoWevEr, tHERe OfTEn WERE nO ObJeCtIONS By coUNSEl FoR ApPelLant wherE An ObJEcTiON AND SUBseQuEnT AdMONITiOn wOuLd haVE cuREd aNY DEFect; Or therE WAS an OBjEctiOn, aNd The tRIal COurT JUDiciOuSLy AdMoniSHED the JurY To dIsreGARD tHe commENt. except FOR TheSe Minor and iNFreQUEnT ABErRAtiONS, thE REcOrD RevEALs aN ExCEpTionAlly welL-cOnDUcTEd anD dIsPassIONAte tRIAL bASeD on THE evIdeNCe pReseNTED. AS IN STeVENs v. paRke, DAviS & CO., 9 cAL.3D 51, 72 [107 cAL. rPTR. 45, 507 p.2D 653], A mOTiOn foR a NEw trIAL WAS MADe, based in PART uPon the AlLegeD MISCOnDUcT OF OppoSinG CouNsEL aT TrIaL. (1) WhaT was saId iN STeveNs aPPLies To tHe InSTANT cAsE. "`A TriAL judge iS In A Better pOsitION ThaN an apPeLlate CouRt to DeTerMIne WheTHEr A VeRdiCT reSUlTED WhOlLy, Or iN paRt, FROm The ASsertED MIsCoNdUCt OF CoUnsel aND hIs COnclUsION iN thE MaTtER wIll NoT be DISTUrbed uNLeSs, UnDEr aLL the cirCumstANces, it iS PlainlY WrOng.' [citATiON.] FroM oUr ReVIeW oF tHe inStAnT recORD, wE agrEe WitH tHE TRIAl jUdGe's asSESSMenT Of THE coNdUCT oF PlAINTIFF'S cOUnSEl and For THe REASOnS STateD Above, we Are Of thE OPINiOn tHaT dEfeNDAnT HAs faiLEd to DEmonSTrATe pRejUDICiAl MIsCOnDuCt On THE pArT Of SUCH coUNSEl." (StEvENs v. parke, dAVIS & Co., sUpRA, 9 CAl.3D at p. 72.) 2. THE PRocedure AnD vErdiCT BeLOw DOES Not COnsTitUTE a vIolAtIOn OF AppeLlaNt'S FIRSt amEnDmEnt free ExeRcIse OF rELIGION. *447 (2) aPpELLANT CoNTENds tHAt vAriOus REferencEs To PraCTiceS OF tHe chURcH of SCIEntOLogY WerE noT SUppoRted bY THE evIDeNcE, WEre NOT lEGaLly RELEVaNT, anD werE UNdUlY PrEjUDIciAl. THe ClaIM IS maDe THAT thE TRiaL becAME oNE OF DETErminiNG THe vALIdITy Of a rELigion RaTHEr tHan thE COMmIssIoN of A tOrt. ThE refeReNcES tO WhiCH apPELLANT NOw obJeCTS weRe to SUCH PRAcTiCES as "e-MeTers," Tin cAns usED as E-mETeRS, THe creatIOn oF RELiGIous dOCtRINE pURPORteDLY TO "GeT" dISsIdEnTS, and insiNUaTiOns ThaT tHE cHurCh OF SCiENTolOGy wAS a GREaT moNey mAkiNg BUsiNess raTHer tHan A RELIGIoN. thE PRincIPaL IsSUE iN this trIAl wAS oNe of CrEdibIliTY. iF One bELiEved DEfeNDanT'S WitNEsSeS, THen tHere wAs iNdeEd COnvErSIOn by RESpoNdeNT. HoWEVeR, THe OPpoSITe reSuLT, THAt rEacHED bY The JuRY, wouLd nATuRalLY FOlLOw If onE BEliEVed THe EvIDENcE iNtRodUcEd By REsponDent. APpeLLANT RepeAtedlY aRGUEs THAT ThE introDucTIon Of The poLicY StaTEmENtS of The ChurcH WaS prejuDiciAL ERROr. HowEVer, ThoSE pOLicy staTeMents Went dIREctLy TO ThE iSsUe oF CredibILItY. SCieNTolOGiSTS were ALLOWed TO trICK, sue, Lie tO, oR dESTroy "eNEmiEs." (EXHiBit 1.) IF, AS he ClAims, resPOndeNT WaS cOnsiDEreD to bE aN EnEmY, THAT PoLIcy Was iNDEEd RElEVANt To THe iSSUes of tHis CAse. that EviDenCe WEll sUPPoRTs thE Jury's imPLied coNClusIon THaT rEspOndENt HaD nOT taKEn tHe prOPeRTy Of THE CHUrch,	58 Cal.App.3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff,Cross-defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant,Cross-complainant and Appellant.Docket No. 45562. Court of Appeals ofCalifornia, Second District, Division Two. May 18, 1976. 443 COUNSEL Morgan, Wenzel& McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., andCharles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Krom, Meldon E.Levine, Murchison, Cumming, Baker & Velpmen, Murchison,Cumming & Baker,Michael B. Lawler, TobiasC. Tolzmann and Joel Kreiner for Defendant, Cross-complainantandAppellant. OPINION BEACH, J. L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A juryverdict andjudgment were entered for Allard on the complaint for $50,000 in compensatory damages and$250,000 inpunitive damages. Judgment was enteredforAllard and againstthe Church ofScientology on thecross-complaint. Defendant-crosscomplainant appeals fromthe judgment. FACTS:The evidence in theinstant case is very conflicting. We relatethose facts supporting the successful partyand disregardthe contrary showing. (Nestlev.City of Santa Monica,6 Cal.3d920, 925-926 [101 Cal. Rptr. 568, 496 P.2d 480].) In March1969, L. Gene Allard became involved with the Church ofScientology in Texas. He joined Sea Org in Los Angeles and wassent to San Diego for training. While there,he signed a billion-year contract agreeing to do anything to helpScientology and to help clear the planet of the "reactive people." During this period he learned about written policy directives that were the "policy" of the church, emanatingfrom L. Ron Hubbard, thefounder of the Church of Scientology.[1] After training on the ship, respondent was assigned to the AdvancedOrganization in Los Angeles,where he became the director of disbursements. He laterbecame the Flag Banking Officer. 444 Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to thesafe kept in respondent's office. Respondent handled foreign currency,American cash, and various travelers'checks as part of his job. InMay orJune 1969, respondent told Boughton that hewanted to leave the church. Boughtonasked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executiveofficers. They told him that the only way he could get outof Sea Org wasto go through "auditing" and to get direct permission from L. Ron Hubbard. Respondentwrote to Hubbard.A chaplain of the church came to see him.Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and"You know we'llcomeand find you andwe'll bring youback,and we'lldeal with you in whatever way is necessary." On the night of June 7 or early morningofJune 8, 1969, respondent went to his office at the Church of Scientology and took several documents from the safe.These documents were takenbyhim to the Internal Revenue Service in Kansas City; he used them to allege improper changes inthe records ofthe church. He denies that any Swiss francs werein thesafe that night or thathe took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers' checks from the safe. He admitted that some travelers' checks had his signatureas an endorsement, but maintains thathe deposited those checks intoan open account of the Church of Scientology. There is independent evidence that tendsto corroborate that statement. Respondent, having borrowed his roommate's car, drove to the airport and flew to KansasCity, where he turned over the documents to the InternalRevenue Service. Respondent wasarrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that$23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waivedextradition and was injail for21 days.Eventually, the charge wasdismissed.The deputy district attorney in Los Angeles recommended a dismissal in theinterests of justice.[2] 445 CONTENTIONSON APPEAL: 1. Respondent's trial counsel engaged in flagrantmisconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. Theverdict below wasreached as a result of (a) counsel's ascription to appellantof a religiousbelief and practices it did not have and (b) the distortionand disparagement of its religiouscharacter, and was not based upon the merits of thiscase. To allowa judgment thereby achieved to standwould constitute a violation ofappellant'sfreeexercise of religion. 3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstandingthe verdict should have been granted. 4. The refusal of the trial court toask or permit voir direquestionsof prospectivejurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. It was prejudicialerror todirect the jury, in its assessment ofthe malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian andAmerican Express travelers' checks. 6. The orderof the trial court in denying toappellant discovery of the factual basis for the obtaining of adismissal by thedistrict attorneyof the criminal case People v.Allard was an abuseof discretion and a new trial should be granted andproper discovery permitted. 7.Respondent presented insufficient evidence to support the award of$50,000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporatedirection or ratification and also failed toestablish knowing falsity and is therefore not entitled to any punitive damages.9. Even if the award of punitive damageswasproper in thiscase, the size of the instant reward,which would deprive appellant church of more 446than40 percent of its net worth,is grossly excessive on the facts ofthis case. 10.There was lack of proper instruction regarding probable cause.[3] DISCUSSION: 1. There was noprejudicial misconduct by respondent'strial counsel, and appellant was not deprivedof a fair trial. Appellant claims that it was denied a fairtrial through the statements, questioning, andintroduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal.App.2d 378[38 Cal. Rptr. 183], is cited as authority. We have reviewed the entire record andfind appellant's contentions to be without merit. Severalof counsel's individual statements and questionswere inappropriate. However,there oftenwere no objections by counsel for appellant wherean objection and subsequent admonition would have cured any defect;or there was an objection, and the trial court judiciously admonished the jury to disregard thecomment. Except for these minorand infrequent aberrations, the record reveals an exceptionally well-conducted and dispassionate trialbased on the evidencepresented.As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal. Rptr. 45,507 P.2d 653], a motion for a new trialwas made, based in part upon thealleged misconduct of opposing counsel at trial. (1) What was said in Stevens applies to the instant case. "`Atrialjudge is in a better position than an appellate court to determine whether a verdict resultedwholly, orin part, from the asserted misconductofcounsel andhis conclusion in thematter will notbe disturbed unless, under all the circumstances, it is plainly wrong.' [Citation.] From our review of the instant record, we agree with the trial judge's assessment of the conduct of plaintiff'scounsel and forthe reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct onthepart of such counsel." (Stevens v. Parke,Davis & Co., supra, 9 Cal.3d at p. 72.) 2. The procedure and verdict below does not constitute a violationof appellant's First Amendment free exercise ofreligion. *447 (2)Appellantcontends that various references to practicesof theChurch of Scientology were not supported by the evidence, were not legally relevant, andwere unduly prejudicial. The claim is made that the trialbecame one of determining the validity of a religionrather thanthe commission ofa tort. The references to which appellantnow objects were to such practices as "E-meters," tin cans used as E-meters, the creation of religious doctrine purportedly to "get" dissidents, and insinuationsthat the Church of Scientologywas a great money making business rather than a religion. The principal issuein this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However,the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced byrespondent. Appellant repeatedly argues thatthe introduction of the policy statements of the churchwas prejudicial error. However, those policy statements went directlytothe issue of credibility. Scientologists wereallowed to trick, sue,lie to, or destroy "enemies." (Exhibit 1.) If, as heclaims, respondent was consideredtobe an enemy, that policy was indeed relevant to the issues of this case. That evidencewell supports the jury's implied conclusion that respondent had nottaken the property ofthe church,	_58_ Cal.App.3d _439_ (1976) 129 _Cal._ Rptr. 797 _L._ GENE _ALLARD,_ Plaintiff, Cross-defendant _and_ Respondent, v. CHURCH OF SCIENTOLOGY OF _CALIFORNIA,_ Defendant, Cross-complainant and Appellant. Docket No. 45562. Court of Appeals of _California,_ _Second_ _District,_ Division _Two._ May 18, _1976._ 443 COUNSEL Morgan, Wenzel & McNicholas, John _P._ McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Krom, _Meldon_ E. Levine, Murchison, Cumming, _Baker_ & Velpmen, Murchison, _Cumming_ & Baker, Michael B. Lawler, _Tobias_ C. Tolzmann and Joel Kreiner for Defendant, Cross-complainant _and_ Appellant. OPINION BEACH, J. _L._ Gene _Allard_ sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. _A_ jury _verdict_ and judgment were entered for Allard on _the_ complaint for $50,000 _in_ compensatory damages and $250,000 in punitive damages. _Judgment_ was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant _appeals_ from the judgment. _FACTS:_ The evidence in the instant case is very conflicting. We relate those facts supporting the _successful_ party and disregard the contrary _showing._ (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 _[101_ Cal. Rptr. _568,_ _496_ P.2d 480].) In March 1969, L. Gene Allard became involved with _the_ Church of Scientology in Texas. _He_ joined Sea Org in _Los_ _Angeles_ and was sent to San _Diego_ for training. _While_ there, he signed _a_ billion-year _contract_ agreeing to do anything to help Scientology and _to_ help clear the planet of the "reactive _people."_ During _this_ period he learned about written policy directives that were the "policy" of the church, emanating from L. _Ron_ _Hubbard,_ the founder of the Church of Scientology.[1] _After_ _training_ on _the_ ship, respondent was assigned _to_ the _Advanced_ Organization in Los _Angeles,_ where he became the director of disbursements. He later became the Flag Banking _Officer._ 444 Alan Boughton, Flag Banking Officer _International,_ _was_ respondent's superior. Only respondent _and_ Boughton knew _the_ combination to the _safe_ kept in respondent's office. Respondent handled foreign _currency,_ American cash, and _various_ travelers' _checks_ as part of his job. In _May_ _or_ June 1969, respondent told Boughton that he wanted to _leave_ the church. Boughton asked him to reconsider. Respondent _wrote_ a memo and later _a_ note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org _was_ to go through _"auditing"_ and to get direct permission from L. _Ron_ _Hubbard._ Respondent wrote _to_ _Hubbard._ A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official _of_ the church in California, told respondent that if he left without _permission,_ he _would_ be fair game and "You _know_ we'll _come_ and find you and we'll bring you _back,_ and _we'll_ deal with you in whatever way is necessary." On the night of June 7 or early _morning_ _of_ June 8, 1969, respondent went to his _office_ at the _Church_ of _Scientology_ _and_ took several documents from the safe. _These_ documents _were_ taken by _him_ to the _Internal_ Revenue Service in Kansas City; he used them to allege improper _changes_ _in_ _the_ _records_ _of_ the church. He denies that any Swiss francs were in the safe that night _or_ _that_ he took such Swiss francs. Furthermore, respondent denies the allegation _that_ he _stole_ _various_ travelers' checks from the safe. He admitted that _some_ travelers' checks _had_ _his_ signature _as_ an endorsement, but _maintains_ that he deposited those _checks_ into _an_ _open_ _account_ of the Church of Scientology. There is independent evidence that tends _to_ corroborate that statement. Respondent, having borrowed his _roommate's_ car, drove to _the_ airport and flew to Kansas City, _where_ he turned _over_ the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department _to_ report that $23,000 in Swiss francs _was_ missing. Respondent was _arrested_ in _Florida;_ he waived extradition and was in jail for 21 _days._ Eventually, the charge was _dismissed._ The deputy district attorney in _Los_ Angeles recommended a dismissal in the interests of justice.[2] 445 CONTENTIONS ON APPEAL: 1. Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby _deprived_ _appellant_ _of_ a fair _trial._ 2. The verdict below _was_ reached as a _result_ of (a) counsel's ascription to appellant _of_ a religious belief and practices it _did_ not have and (b) _the_ distortion and disparagement of _its_ _religious_ character, and _was_ _not_ _based_ upon the merits _of_ this case. To allow _a_ judgment thereby achieved to _stand_ would constitute a violation of appellant's free exercise of religion. _3._ Respondent failed _to_ prove that appellant _maliciously_ prosecuted him _and_ therefore the _judgment_ notwithstanding _the_ verdict should have been granted. 4. The refusal of the _trial_ _court_ to ask or permit voir dire questions of _prospective_ jurors pertaining to their religious prejudices or _attitudes_ _deprived_ _appellant_ of _a_ _fair_ trial. 5. It was prejudicial error _to_ _direct_ the jury, in _its_ _assessment_ of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. 6. The order of _the_ trial court in denying to appellant _discovery_ of the _factual_ basis for the obtaining of a dismissal by the _district_ attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. Respondent presented _insufficient_ evidence _to_ _support_ the award of $50,000 in compensatory _damages_ which _must_ have been awarded _because_ of _prejudice_ _against_ appellant. _8._ Respondent _failed_ to _establish_ corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any _punitive_ _damages._ 9. _Even_ if the award of punitive damages _was_ proper in _this_ case, the _size_ of _the_ instant reward, _which_ would deprive appellant church of _more_ 446 than 40 percent of its net worth, is grossly excessive _on_ _the_ _facts_ of this case. 10. _There_ was lack of _proper_ instruction regarding probable cause.[3] DISCUSSION: 1. There _was_ no prejudicial misconduct _by_ respondent's trial counsel, and _appellant_ was _not_ deprived of a fair trial. Appellant claims that it _was_ denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal. App.2d 378 [38 Cal. Rptr. 183], _is_ cited as _authority._ _We_ have reviewed the entire _record_ and _find_ appellant's contentions _to_ be without _merit._ Several of counsel's individual statements and _questions_ were _inappropriate._ _However,_ there often _were_ no objections by counsel for appellant _where_ an objection and _subsequent_ admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except _for_ these minor _and_ _infrequent_ aberrations, _the_ record reveals an exceptionally well-conducted _and_ dispassionate trial based on the evidence presented. As in Stevens v. Parke, Davis & Co., 9 _Cal.3d_ _51,_ 72 [107 Cal. Rptr. _45,_ _507_ P.2d _653],_ a _motion_ for a new _trial_ _was_ made, based in part _upon_ the alleged _misconduct_ of _opposing_ counsel _at_ trial. (1) What was said _in_ Stevens applies to the instant case. "`A trial _judge_ _is_ in a better position than an appellate court _to_ determine whether _a_ _verdict_ resulted wholly, or _in_ part, _from_ the asserted misconduct of counsel _and_ _his_ conclusion in the matter will not _be_ disturbed unless, under all the circumstances, it is plainly _wrong.'_ [Citation.] _From_ our review _of_ the instant record, we agree with _the_ trial judge's assessment of the conduct of plaintiff's counsel and for the reasons stated above, we are of the opinion _that_ defendant has failed to _demonstrate_ prejudicial misconduct on the part of such counsel." (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. _72.)_ _2._ The _procedure_ and verdict below does not constitute a violation of appellant's First Amendment free _exercise_ _of_ religion. *447 (2) Appellant contends that various _references_ to practices of the Church _of_ Scientology were not supported by the evidence, were not _legally_ relevant, _and_ were unduly prejudicial. The claim is made that the trial became one of determining the validity of a _religion_ _rather_ than the _commission_ _of_ a tort. _The_ references to which appellant now objects were to _such_ _practices_ _as_ "E-meters," tin cans _used_ as E-meters, the creation of religious doctrine purportedly to "get" dissidents, _and_ insinuations _that_ _the_ Church of _Scientology_ was a great money making business rather than a _religion._ The principal _issue_ in this trial _was_ one of credibility. If one believed defendant's _witnesses,_ then there was indeed conversion by respondent. However, _the_ _opposite_ result, _that_ reached _by_ the _jury,_ _would_ naturally follow if one believed the evidence introduced by _respondent._ Appellant repeatedly _argues_ that the introduction of the policy _statements_ of _the_ _church_ was _prejudicial_ error. However, those policy statements _went_ directly to the _issue_ of credibility. Scientologists _were_ allowed to trick, sue, lie to, or _destroy_ "enemies." _(Exhibit_ _1.)_ If, as he claims, respondent was considered to be an _enemy,_ _that_ policy was indeed relevant to the _issues_ of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church,
798 So.2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of Quanetta M. Buchannon, deceased v. Rebecca GERLACH, M.D. 1991732. Supreme Court of Alabama. April 20, 2001. 648 Sherryl Snodgrass Caffey, Huntsville, for appellants. John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, L.L.P., Decatur, for appellee. HARWOOD, Justice. Charles Sharrief and Millie Sharrief, as administrators of the estate of Quanetta M. Buchannon, deceased, sued Dr. Rebecca Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants' providing medical care to Buchannon. The trial court entered an "Order of Referral to Mediation." During mediation, the plaintiffs' settled their claims against Dr. Giddens and Jackson County Hospital; the court dismissed those defendants pursuant to a motion and joint stipulation for 649 dismissal. Although he was no longer a party to this case, Dr. Giddens was later a witness at trial. Trial of the plaintiffs' claims against Dr. Gerlach began on September 27, 1999. When Dr. Gerlach was called by the plaintiffs as their first witness, she ran out of the courtroom. The trial judge offered the plaintiffs the option of continuing the trial in Dr. Gerlach's absence, but they declined to do so. The trial court then declared a mistrial. The plaintiffs then made a motion to tax costs to the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant's absence. A second trial began on January 24, 2000. On January 27, 2000, the jury returned a verdict for Dr. Gerlach. The trial court entered a judgment based on that verdict. The plaintiffs, without first informing the trial court, subpoenaed the jurors for depositions, based on a suspicion that juror misconduct had occurred during the trial. When the trial court became aware of the subpoenas, it entered an order quashing them. The plaintiffs then filed a "Motion to Alter, Amend, or Vacate" the order quashing the subpoenas, or in the alternative, a "Motion to Take Depositions of Jurors" and a "Motion for Enlargement of Time." The plaintiffs also filed a "Motion to Vacate the Judgment," a "Motion for a New Trial," a "Motion for Post Judgment Hearing," and a "Renewal of Motion to Take Deposition Testimony of Jurors." In response, Dr. Gerlach filed a "Motion for Protective Order" and a "Motion to Strike Affidavits of Mr. Sharrief and Jurors." The trial court heard arguments on all the motions at the same time; it denied all of the plaintiffs' motions, and granted all of Dr. Gerlach's motions. The plaintiffs appealed. They make a number of disparate arguments; we summarize them into four basic arguments: (1) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong; (2) that the trial court committed reversible error by denying the plaintiffs' posttrial motions concerning discovery regarding jury deliberations; (3) that the trial court committed reversible errors during the trial; and (4) that the trial court erred in denying their motion to tax costs to Dr. Gerlach after the first trial had ended.[1] The record shows that Buchannon, age 19, was brought to the Jackson County Hospital emergency room at 9:05 p.m. on July 2, 1993. She had been suffering from vomiting, nausea, and diarrhea for three days. Dr. Gerlach, an emergency-room physician, obtained Buchannon's medical history and examined her. Buchannon's medical history showed that she had delivered a child by cesarean section on June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The baby had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and Hellen Keller Hospital were not involved in this case.) Dr. Gerlach's examination indicated that Buchannon was suffering from endometritis, an infection of the uterus, resulting from the cesarean section performed five days earlier. Dr. Gerlach then telephoned Dr. Giddens, the obstetrician-gynecologist ("Ob/Gyn") on call for Jackson County Hospital that 650 night, to discuss the case. Dr. Giddens had also been Buchannon's Ob/Gyn up until two weeks before the delivery, but because Dr. Gapultoes had delivered Buchannon's baby, Dr. Giddens was no longer considered her attending physician. Dr. Gerlach informed Dr. Giddens of Buchannon's condition and of her test results, informed him that Buchannon had requested that he be present, and asked him to come in on Buchannon's behalf. Dr. Giddens declined to come to the emergency room. Dr. Gerlach then advised Dr. Giddens that her recommended course of treatment would include a shot of Rocephin,[2] 1 gram, by intramuscular injection, and a prescription of Doxycycline.[3] Dr. Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that Buchannon be released and that she follow up with an Ob/Gyn within a few days. Dr. Gerlach then asked Dr. Giddens to do a "follow-up" examination with Buchannon in 2-4 days, but he declined that request, recommending instead that Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddens then approved Dr. Gerlach's recommendations for treatment, and that treatment was administered. Buchannon was released from the hospital at 10:45 p.m. The next morning, Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical Center. On July 3, 1993 at 7:17 a.m., Buchannon was pronounced dead. The official cause of her death was septic shock due to endometritis due to cesarean section. I. The Verdict and the Denial of the Plaintiffs' Postjudgment Motions We first consider whether the trial court erred in denying the plaintiffs' motion for a new trial. The plaintiffs based that motion on the argument that the jury's verdict was not supported by the evidence. "[W]hen the evidence meets the `sufficiency' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial, will not be reversed on a weight-of-the-evidence ground unless it is `plainly and palpably' wrong. Ashbee v. Brock, 510 So.2d 214 (Ala.1987). See, also, Jawad v. Granade, 497 So.2d 471 (Ala.1986)." Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162-63 (Ala.1988). Thus, this Court will reverse the trial court's denial of the plaintiffs' motion for a new trial only if this Court concludes that the verdict was plainly and palpably wrong. Generally, in order to prove liability in a medical-malpractice case, the plaintiff must show (1) the appropriate standard of care for the treatment supplied by the defendant health-care provider, (2) a deviation from that standard of care by the defendant, and (3) a proximate causal connection between the injury alleged by the plaintiff and the defendant's breach of the standard of care. Looney v. Davis, 721 So.2d 152 (Ala.1998). The plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery at Meharry Medical College. Dr. Garrett testified that Dr. Gerlach's examination and treatment of Buchannon was below the standard of care. However, Dr. Sherry 651 Squires, associate medical director of the emergency department at Huntsville Hospital, testifying as an expert on behalf of Dr. Gerlach, stated that Dr. Gerlach's treatment of Buchannon met the standard of care. The resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. Jones v. Baltazar, 658 So.2d 420 (Ala.1995); James v. Woolley, 523 So.2d 110, 112 (Ala.1988). The record contains substantial evidence to support the jury verdict; thus, we must conclude that the verdict was not plainly and palpably wrong. Stokes v. Long-Lewis Ford, Inc., 549 So.2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d 943, 946 (Ala.1988). The trial court did not err in denying the plaintiffs' motion for a new trial. II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations We next consider the plaintiffs' argument that the trial court erred in denying their posttrial motions seeking discovery regarding the jury's deliberations. These motions included a motion to subpoena jurors, a motion to vacate the order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time	798 so. 2d 646 ( 2001 ) charles sharrief represented millie sharrief as personal representatives of quanetta m. buchannon, deceased v. rebecca gerlach, m. d. 1991732. supreme court of alabama. april 20, 2001. * 648 sherryl snodgrass caffey, huntsville, for appellants. judith s. key v jenny l. mcleroy of eyster, key, tubb, weaver & roth, l. l. y., decatur, for appellee. harwood, justice. charles sharrief and millie sharrief, as administrators of the estate of quanetta m. buchannon, jr, sued dr. rebecca gerlach, dr. charles giddens, and jackson county hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants ' providing medical care to buchannon. the trial court entered an " order of referral to mediation. " during mediation, the plaintiffs ' settled their claims against dr. giddens and jackson county hospital ; the court dismissed those defendants pursuant to a motion and joint stipulation for * 649 dismissal. since he was no longer a party to this case, dr. giddens was later a witness at trial. trial of the plaintiffs ' claims against dr. gerlach began on september 27, 1999. when dr. gerlach was called by the plaintiffs as their first witness, she ran out of the courtroom. the trial judge offered the plaintiffs the option of continuing the trial in dr. gerlach ' s absence, but they declined to do so. the trial court then declared a mistrial. the plaintiffs then made a motion to tax costs to the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant ' s absence. a second trial began on january 24, 2000. on january 27, 2000, the jury returned a verdict for dr. gerlach. the trial court entered a judgment based in that verdict. the plaintiffs, without first informing the trial court, subpoenaed the jurors for depositions, based on a suspicion that juror misconduct allegations occurred during the trial. when the trial court became aware of the subpoenas, it added an order quashing them. the plaintiffs then filed a " motion to alter, llc , or vacate " the order quashing the subpoenas, or in the alternative, a " motion to take depositions of jurors " and a " motion for enlargement of time. " the plaintiffs also filed a " motion to vacate the judgment, " a " motion for a new trial, " a " motion for post judgment hearing, " and a " renewal of motion to take deposition testimony of jurors. " in response, dr. gerlach filed a " motion for protective order " and a " motion to strike affidavits of mr. sharrief and jurors. " the trial court heard arguments on all the motions at the same time ; it denied all of the plaintiffs ' motions, and granted all of dr. gerlach ' s motions. the plaintiffs appealed. they make a number of disparate arguments ; we summarize them into four basic arguments : ( 1 ) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong ; ( 2 ) that the trial court committed reversible error by denying the plaintiffs ' posttrial motions concerning discovery regarding jury deliberations ; ( 3 ) that the trial court committed reversible errors during the trial ; and ( 4 ) that the trial court erred in denying their motion to tax costs to dr. gerlach after the first trial had ended. [ 1 ] the record shows that buchannon, age 19, was brought to the jackson county hospital emergency room at 9 : 05 p. m. on july 2, 1993. she had been suffering from vomiting, nausea, and diarrhea for three days. dr. gerlach, an emergency - room physician, obtained buchannon ' s medical history and examined her. buchannon ' s medical history showed that she had delivered a child by cesarean section on june 27, 1993, at hellen keller hospital in muscle shoals. the baby had been delivered by dr. jenny gapultoes. ( dr. gapultoes and hellen keller hospital were not involved in this case. ) dr. gerlach ' s examination indicated that buchannon was suffering from endometritis, an infection of the uterus, resulting from the cesarean section performed five days earlier. dr. gerlach then telephoned dr. giddens, the obstetrician - gynecologist ( " ob / gyn " ) on call for jackson county hospital that * 650 night, to discuss the case. dr. giddens had also been buchannon ' s ob / gyn up until two weeks before the delivery, but because dr. gapultoes had delivered buchannon ' s baby, dr. giddens was no longer considered her attending physician. dr. gerlach informed dr. giddens of buchannon ' s condition and of her test results, informed him that buchannon had requested that he be present, and asked him to come in on buchannon ' s behalf. dr. giddens declined to come to the emergency room. dr. gerlach then advised dr. giddens that her recommended course of treatment would include a shot of rocephin, [ 2 ] 1 gram, by intramuscular injection, and a prescription of doxycycline. [ 3 ] dr. giddens concurred with the recommended course of treatment. dr. gerlach further proposed that buchannon be released and that she follow up with an ob / gyn within a few days. dr. gerlach then asked dr. giddens to do a " follow - up " examination with buchannon in 2 - 4 days, but he declined that request, recommending instead that buchannon be instructed to return to the physician who had delivered her baby. dr. giddens then approved dr. gerlach ' s recommendations for treatment, and that treatment was administered. buchannon was released from the hospital at 10 : 45 p. m. the next morning, buchannon became unconscious and unresponsive ; she was rushed by ambulance to scottsboro medical center. on july 3, 1993 at 7 : 17 a. m., buchannon was pronounced dead. the official cause of her death was septic shock due to endometritis due to cesarean section. i. the verdict and the denial of the plaintiffs ' postjudgment motions we first consider whether the trial court erred in denying the plaintiffs ' motion for a new trial. the plaintiffs based that motion on the argument that the jury ' s verdict was not supported by the evidence. " [ w ] hen the evidence meets the ` sufficiency ' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court ' s denial of a motion for new trial. therefore, a judgment based upon a jury verdict and sustained by the denial of a post - judgment motion for a new trial, will not be reversed on a weight - of - the - evidence ground unless it is ` plainly and palpably ' wrong. ashbee v. brock, 510 so. 2d 214 ( ala. 1987 ). see, also, jawad v. granade, 497 so. 2d 471 ( ala. 1986 ). " alpine bay resorts, inc. v. wyatt, 539 so. 2d 160, 162 - 63 ( ala. 1988 ). thus, this court will reverse the trial court ' s denial of the plaintiffs ' motion for a new trial only if this court concludes that the verdict was plainly and palpably wrong. generally, in order to prove liability in a medical - malpractice case, the plaintiff must show ( 1 ) the appropriate standard of care for the treatment supplied by the defendant health - care provider, ( 2 ) a deviation from that standard of care by the defendant, and ( 3 ) a proximate causal connection between the injury alleged by the plaintiff and the defendant ' s breach of the standard of care. looney v. davis, 721 so. 2d 152 ( ala. 1998 ). the plaintiffs presented the testimony of dr. william e. garrett, assistant professor of surgery at meharry medical college. dr. garrett testified that dr. gerlach ' s examination and treatment of buchannon was below the standard of care. however, dr. sherry * 651 squires, associate medical director of the emergency department at huntsville hospital, testifying as an expert on behalf of dr. gerlach, stated that dr. gerlach ' s treatment of buchannon met the standard of care. the resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. jones v. baltazar, 658 so. 2d 420 ( ala. 1995 ) ; james v. woolley, 523 so. 2d 110, 112 ( ala. 1988 ). the record contains substantial evidence to support the jury verdict ; thus, we must conclude that the verdict was not plainly and palpably wrong. stokes v. long - lewis ford, inc., 549 so. 2d 51, 52 ( ala. 1989 ) ; merrell v. joe bullard oldsmobile, inc., 529 so. 2d 943, 946 ( ala. 1988 ). the trial court did not err in denying the plaintiffs ' motion for a new trial. ii. posttrial motions concerning discovery regarding jury deliberations we next consider the plaintiffs ' argument that the trial court erred in denying their posttrial motions seeking discovery regarding the jury ' s deliberations. these motions included a motion to subpoena jurors, a motion to vacate the order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time	798 So. 2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of Quanetta M. Buchannon, deceased v. Rebecca GERLACH, M. D. 1991732. Supreme Court of Alabama. April 20, 2001. * 648 Sherryl Snodgrass Caffey, Huntsville, for xppel/ants. John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & RLGh, L. L. P. , Decatur, for appellee. HARWOOD, Justice. Charles Sharrief and Millie ShWrrisf, as administrators of the estate of Quanetta M. Buchannon, deceased, sued Dr. Rebecca Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants ' providing medical care to Buchannon. The trial court entered an " Order of Referral to Mediation. " During mediation, the plaintiffs ' settled their claims against Dr. Giddens and Jackson County Hospital; the court dismissed those defendants pursuant to a motion and joint stipulation for * 649 dismissal. Although he was no longer a party to this case, Dr. Giddens was later a witness at trial. Trial of the plaintiffs ' claims against Dr. Gerlach began on September 27, 1999. When Dr. Gerlach was called by the plaintiffs as their first witness, she ran out of the courtroom. The trial judge offered the plaintiffs the option of continuing the trial in Dr. Gerlach ' s absence, but they declined to do so. The trial court then declared a mistrial. The plaintiffs then made a motion to tax costs to the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had rwf tsed to proceed with the trial in the defendant ' s absence. A second trial began on January 24, 2000. On January 27, 2000, the jury returned a verdict for Dr. Gerlach. The trial court entered a judgment based on that verdict. The plaintiffs, without fkrsf informing the trial court, subpoenaed the jurors for depositions, based on a suspicion that juror misconduct had occurred during the trial. When the trial court became aware of the subpoenas, it entered an order quWahing them. The plaintiffs then filed a " Motion to Alter, Amend, or Vacate " the order quashing the subpoenas, or in the alternative, a " <otiKn to Take Depositions of Jurors " and a " Motion for Enlargement of Time. " The plaintiffs also filed a " Motion to Vacate the Judgment, " a " Motion for a New Trial, " a " Motion for Post Judgment Hearing, " and a " Renewal of Motion to Take Deposition Testimony of Jurors. " In response, Dr. Gerlach filed a " Motion for Protective Order " and a " Motion to Strike Affidavits of Mr. Sharrief and Jurors. " The trial court heard arguments on all the motions at the same time; it denied all of the plaintiffs ' motions, and granted all of Dr. Gerlach ' s motions. The plaintiffs appealed. They make a number of disparate arguments; we summarize them into four basic arguments: (1) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong; (2) that the trial court committed reversible error by denying the plaintiffs ' posttrial motions concerning discovery regarding jury deliberations; (3) that the trial court committed reversible errors during the trial; and (4) that the trial court erred in denying their motion to tax costs to Dr. Gerlach after the first trial had ended. [1] The record shows that Buchannon, age 19, was brought to the Jackson County Hospital emergency room at 9: 05 p. m. on July 2, 1993. She had been suffering from vomiting, nausea, and diarrhea for three days. Dr. Gerlach, an emergency - room physician, obtained Buchannon ' s medical history and examined her. Buchannon ' s medical history showed that she had delivered a child by cesarean section on June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The baby had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and Hellen Keller Hospital were not involved in this case.) Dr. Gerlach ' s examination indicated that Buchannon was suffering from endometritis, an infection of the uterus, resulting from the cesarean section performed five days earlier. Dr. Gerlach then telephoned Dr. Giddens, the obstetrician - gynecologist (" Ob / Gyn ") on call for Jackson County Hospital that * 650 night, to discuss the case. Dr. Giddens had also been Buchannon ' s Ob / Gyn up until two weeks before the delivery, but because Dr. Gapultoes had delivered Buchannon ' s baby, Dr. Giddens was no longer considered her attending physician. Dr. Gerlach informed Dr. Giddens of Buchannon ' s condition and of her test results, informed him that Buchannon had requested that he be present, and asked him to come in on Buchannon ' s behalf. Dr. Giddens declined to come to the emergency room. Dr. Gerlach then advised Dr. Giddens that her recommended course of treatment would include a shot of Rocephin, [2] 1 gram, by intramuscular injection, and a prescription of Doxycycline. [3] Dr. Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that Buchannon be released and that she follow up with an Ob / Gyn within a few days. Dr. Gerlach thdm asked Dr. Giddens to do a " follow - up " examination with Buchannon in 2 - 4 days, but he declined that request, recommending instead that Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddens then approved Dr. Gerlach ' s recommendations for treatment, and that treatment was administered. Buchannon was released from the hospital at 10: 45 p. m. The next morning, Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical Center. On July 3, 1993 at 7: 17 a. m. , Buchannon was pronounced dead. The official cause of her death was septic shock due to endometritis due to cesarean section. I. The Verdict and the Denial of the Plaintiffs ' Postjudgment Motions We first consider whether the trial court erred in denying the plaintiffs ' motion for a new trial. The plaintiffs based that motion on the argument that the jury ' s verdict was not supported by the evidence. " [W] hen the evidence meets the ` sufficiency ' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court ' s denial of a motion for new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post - judgment motion for a new trial, will not be reversed on a weight - of - the - evidence ground unless it is ` plainly and palpably ' wrong. Zshbwe v. Brock, 510 So. 2d 214 (Ala. w98& ). See, also, Jawad v. Granade, 497 So. 2d 471 (Ala. 1986 ). " Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 - 63 (Ala. 1988 ). Thus, this Court will reverse the trial court ' s denial of the plaintiffs ' motion for a new trial only if this Court concludes that the verdict was plainly and palpably wrong. Generally, in order to prove liability in a medical - malpractice case, the plaintiff must show (1) the appropriate standard of care for the treatment supplied by the defendant health - care provider, (2) a deviation from that standard of care by the defendant, and (3) a proximate causal connection between the injury alleged by the plaintiff and the defendant ' s breach of the standard of care. Looney v. Davis, 721 So. 2d 152 (Ala. 1998 ). The plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery at Meharry Medical College. Dr. Garrett testified that Dr. Gerlach ' s examination and treatment of Buchannon was below the standard of care. However, Dr. Sherry * 651 Squires, associate medical director of the emergency department at Huntsville Hospital, testifying as an expert on behalf of Dr. Gerlach, stated that Dr. Gerlach ' s treatment of Buchannon met the standard of care. The resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. Jones v. Baltazar, 658 So. 2d 420 (Ala. 1995 ); James v. Woolley, 523 So. 2d 110, 112 (Ala. 1988 ). The record contains substantial evidence to support the jury verdict; thus, we must conclude that the verdict was not plainly and palpably wrong. Stokes v. Long - Lewis Ford, Inc. , 549 So. 2d 51, 52 (Ala. 1989 ); Merrell v. Joe Bullard Oldsmobile, Inc. , 529 So. 2d 943, 946 (Ala. 1988 ). The trial court did not err in denying the plaintiffs ' motion for a new trial. II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations We next consider the plaintiffs ' argument that the trial court erred in denying their posttrial motions seeking discovery regarding the jury ' s deliberations. These motions included a motion to subpoena jurors, a motion to vacate the order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time	798 So.2d 646 (2001) Charles SHARRIEF Millie Sharrief as personal representatives of Quanetta Buchannon, deceased v. GERLACH, M.D. 1991732. Court of Alabama. April 20, 2001. 648 Sherryl Snodgrass Caffey, Huntsville, for appellants. John Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, L.L.P., Decatur, for appellee. HARWOOD, Justice. Charles Sharrief and Millie Sharrief, administrators of the Quanetta Buchannon, deceased, sued Dr. Rebecca Gerlach, Dr. Charles Giddens, Jackson County Hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants' providing medical care to Buchannon. The trial court entered an "Order of Referral Mediation." During mediation, the settled their claims against Dr. Giddens Jackson County Hospital; court those defendants pursuant to a motion and joint stipulation for 649 dismissal. Although he was longer a to this case, Dr. Giddens was later a at trial. Trial of the plaintiffs' claims against Dr. Gerlach began on September 27, 1999. When Dr. Gerlach was called by the as their first witness, she ran out of the courtroom. The trial judge offered plaintiffs the option of continuing trial in Dr. Gerlach's absence, but they declined to do so. The trial court then declared a mistrial. The then made a motion to tax the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant's absence. A second trial began on January 2000. On 27, 2000, the jury returned a verdict for Dr. Gerlach. The trial court entered judgment based on that verdict. The plaintiffs, without first informing the trial court, subpoenaed the jurors for based on a suspicion that juror misconduct had during the trial. When the court became of the subpoenas, it entered an order quashing them. plaintiffs then filed a "Motion to Alter, Amend, or Vacate" the order quashing the subpoenas, or in the alternative, a "Motion to Take Depositions of and a "Motion for Enlargement of The plaintiffs also filed a "Motion to Vacate the Judgment," a for a New Trial," a "Motion for Post Judgment Hearing," and a "Renewal of Motion Take Deposition of Jurors." In response, Dr. Gerlach filed a "Motion for Protective Order" and a "Motion to Affidavits of Sharrief and Jurors." The trial court heard arguments on all the motions the same time; it denied all of plaintiffs' motions, and granted all of Dr. Gerlach's motions. The plaintiffs appealed. They make a number of disparate arguments; we summarize them into four basic arguments: (1) the trial court erred in denying motion to the or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong; (2) that the trial reversible error by denying the plaintiffs' posttrial motions concerning discovery regarding jury deliberations; (3) that trial court committed reversible errors during the trial; and (4) that the trial court erred denying their motion to tax to Dr. after the first trial had ended.[1] The record shows that Buchannon, age 19, was brought the County Hospital emergency room at 9:05 p.m. July 2, She had been suffering from vomiting, nausea, and diarrhea for days. Dr. Gerlach, emergency-room Buchannon's medical and examined her. Buchannon's history showed that she had delivered a child by cesarean section June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and Hellen Keller Hospital were not involved in this case.) examination indicated that Buchannon suffering from endometritis, an infection of the uterus, from the section performed days earlier. Dr. Gerlach then Dr. Giddens, the obstetrician-gynecologist call for Jackson County Hospital that 650 night, to discuss the case. Dr. Giddens had also been Buchannon's up until two weeks before the but because Dr. Gapultoes had Buchannon's baby, Dr. was no longer considered her attending physician. Dr. Gerlach Dr. Giddens of Buchannon's condition and of her test results, informed him that Buchannon had requested that he be present, and asked him come on Buchannon's behalf. Dr. Giddens declined to come to the emergency room. Dr. Gerlach then advised Dr. Giddens that her recommended course of treatment would include a shot of Rocephin,[2] 1 gram, by intramuscular injection, and a prescription of Doxycycline.[3] Dr. Giddens concurred the recommended course of Dr. Gerlach further proposed that Buchannon be and that she follow up with an Ob/Gyn within a days. Dr. Gerlach then asked Dr. to do a "follow-up" with Buchannon 2-4 days, but he declined that request, recommending instead that Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddens then approved Dr. Gerlach's recommendations for treatment, and treatment was administered. Buchannon was released from the hospital at 10:45 p.m. The next morning, Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical On July 1993 at 7:17 a.m., Buchannon was pronounced dead. official cause of her death was septic shock due to endometritis due cesarean section. I. The Verdict and the of the Plaintiffs' Postjudgment Motions We first consider whether the trial erred in denying the plaintiffs' motion for a new trial. The plaintiffs based that motion the argument that the verdict was not supported by the evidence. "[W]hen the evidence meets the `sufficiency' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial denial of a motion new trial. Therefore, a judgment based upon a jury and sustained by the of a post-judgment motion for a new will be reversed a weight-of-the-evidence ground it is `plainly and wrong. Ashbee v. Brock, 510 So.2d 214 See, also, v. Granade, 497 So.2d 471 (Ala.1986)." Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162-63 (Ala.1988). Thus, this Court will reverse the trial court's denial the plaintiffs' for a new trial only if this concludes the verdict was plainly and wrong. Generally, in order to prove liability in a case, the must show (1) the appropriate standard care for the treatment supplied by the defendant health-care provider, (2) a deviation from that standard of by the defendant, and (3) a proximate causal connection between the injury alleged by the plaintiff and the defendant's breach of the standard care. Looney v. Davis, So.2d 152 (Ala.1998). plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery at Meharry Medical College. Dr. Garrett testified that Dr. Gerlach's examination and treatment Buchannon was below the standard care. However, Dr. 651 Squires, associate medical director of the emergency department at Hospital, testifying as an on of Dr. Gerlach, stated that Dr. Gerlach's treatment of Buchannon met standard of care. The resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. Jones v. Baltazar, 658 So.2d 420 (Ala.1995); James v. Woolley, 523 So.2d 110, 112 The contains substantial evidence to support the jury verdict; thus, we must conclude the verdict was not plainly and palpably wrong. Stokes v. Long-Lewis Ford, 549 So.2d 51, 52 Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d 943, (Ala.1988). The trial court did not in denying the plaintiffs' motion for a new trial. II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations We next consider the plaintiffs' argument the trial court erred in denying their posttrial motions discovery regarding the jury's deliberations. These motions included a motion to subpoena jurors, a motion to vacate the order quashing subpoenas, a motion to take juror depositions, a for enlargement of time	798 SO.2d 646 (2001) cHarles sHArriEf anD mIlliE sHaRRieF as pErSOnAL repRESEnTATIves of QUANeTTa M. buchANnoN, dEceAseD v. rEbEcCA gerlaCH, M.D. 1991732. suPReME CoUrt OF AlabAma. APrIl 20, 2001. 648 SheRryL SNOdgrAsS CAfFEy, hUntsVille, for apPEllanTs. jOhN s. kEY aND jeNnY L. mClErOY Of eYSTER, key, TUBb, wEaver & roth, l.L.p., decaTuR, fOR APPELlee. harWoOD, JUsTiCe. chARLES sharrIEF aND MiLLiE SHARRief, aS admINiStrAtoRS OF tHe esTATe OF qUaNeTTa m. BUChANNoN, DeCEaSEd, SUeD Dr. reBECcA GErlaCH, dR. ChaRLES giddEnS, aNd JaCkSON coUNTY hoSpiTal, sEekIng cOmpensatOrY AnD puNItIVe DaMages on aLLeGATIoNs OF a WrOnGFuL DEATH, in The dEfENDaNts' prOViDIng mEDicAL CArE To BUchANnon. the TriaL cOurT EnTerED aN "ORdeR of rEFerrAl To mEdIatION." duriNG MediaTioN, THe PLAinTiFfs' setTLeD theiR cLAims aGAinst DR. GIDdENS AND JacKSON CounTy HOSpITAL; the Court dismisSeD THosE DEFEndaNTS PUrsuAnt To a mOTIoN aND joiNt sTiPULaTion For 649 dIsMIssaL. aLTHouGH he WAS no lONgEr A parTY tO THis cASe, Dr. GiDDENS WAS laTer a witneSs AT trial. TRiaL OF the pLaIntIfFs' claimS AGainSt DR. gerlaCH begAn on sEpTEMBER 27, 1999. wHEn DR. gErlAcH WAs cAlLED by THE plainTIffS aS THeIr FIrST Witness, shE rAn OUt OF THE COurtrOOm. the tRIAl jUdGE OFFEred the PlaiNTiFfs tHE OptiON oF CoNtINuinG ThE triAL IN dr. GeRLACh's AbsENCE, BUT ThEy DeCLiNED TO Do sO. tHe trial Court TheN deClAred a miSTRiAl. tHE plAInTIfFs Then MAde A MoTION To tAX costS To the DeFENDaNT, BUt THE tRiAL courT deNIeD THE MoTIOn, on tHe rATiOnALE tHAt the plAInTifFS had reFusED tO proceeD wITH tHe TRiAL iN The DeFEndAnT's abSeNCE. a seCOnd TriAL bEGan on JaNUarY 24, 2000. ON january 27, 2000, THE Jury RetURnEd A VERdicT fOr dR. GERlach. tHe tRiAl CouRT ENtERed A JuDgMEnT bASEd on tHaT VERdiCt. ThE PlaINtiffs, wIthoUT FirST INfoRMINg the triAl cOuRT, sUBPoEnaEd the jUroRS fOr DePositioNS, bAsED ON a SuSPIcIoN that Juror miSconDUCt Had oCCurRed dURING thE TrIal. when ThE TriAL COuRT bECaME AWARe oF ThE sUBpOENAs, it eNTErEd AN OrDEr QUAshinG THEM. tHE plaIntifFs thEN FILED A "mOtiON tO ALTer, amenD, oR vACATE" the orDeR QuAShINg THE SUbPOENas, or IN The ALtERNatIVe, A "moTIon TO TaKE DEPoSitiOns Of JuroRS" aNd A "mOTIoN FoR EnLaRgEMEnt Of tIMe." thE PlaiNtIffs ALSo FIleD A "mOTION to VAcATe ThE JUDGmENt," a "motioN foR A NEW trIAL," a "mOTIOn fOr PoST judgmeNT HEaring," and A "RenEwal OF moTion tO take DepoSITioN testImoNY OF jURORS." in ResPONSE, Dr. gerLACh fILEd A "MOTiON fOr PRotECTive oRDer" And a "mOTIoN TO sTriKE afFiDAviTS oF mr. shaRriEf ANd jUROrs." the TrIAL CourT heArD Arguments on aLl the MOTIoNs AT tHE SamE TImE; IT DENIeD aLl Of the PLaINTIFfS' MOTIOns, aND gRaNted ALL Of DR. gErlACH's mOTions. ThE PLAINtIffS appEAled. THey MAkE A NUmber OF disPAraTE ArgUments; WE suMMARIzE thEm iNTO foUr BaSiC ARguMEnTS: (1) THAT the trIal Court eRRed in DeNYiNG ThEIr MotIOn TO VACATE ThE JudgMEnt, OR, In ThE alTErNaTIvE, FoR a New TRIal, BeCaUse, tHeY CONtend, the JURy VErDict WaS pLaINLY ANd paLPABLy WrONG; (2) THAt tHe tRiaL cOurT coMmiTTed reVErsIBLE erRoR by deNyiNg THe plaIntIfFs' pOStTriaL moTiONS conCeRninG diScovery REgaRding Jury deLIbERATiONS; (3) THaT THE TRiAl coUrT commITTED revERsibLE eRrORs DuRinG thE TRIal; and (4) That ThE TrIal COUrt errED iN DenYInG thEIR MoTIoN to TAx CoSts to DR. GeRlACh aFTEr tHE FIrsT tRIAL had ENded.[1] the recOrD shoWs THaT BUCHAnNON, AgE 19, waS bROuGht TO thE JacksOn CouNTy HOSPitAL eMERGenCY rOOM aT 9:05 P.m. oN JuLy 2, 1993. she hAd BeEN suffERINg frOM VoMitinG, nAuSEA, AND DIarrhEA For THrEe DAYS. Dr. gERlACh, An eMerGENcy-roOm pHYSICiaN, OBtAiNeD BucHAnNoN's MeDICal HIstORy AND ExAmiNED HEr. bUcHANnON's MeDICAl HISTory SHOWEd ThAt She HaD DeLIveRED A Child by CESAreaN sECTIoN ON jUNE 27, 1993, AT HELLeN kElleR HoSPITAL in MUsCle sHoalS. tHe BABy haD bEen DEliVErEd BY dR. JeNnY gApULtOeS. (Dr. gaPULtOeS aNd hElLeN kElLEr hOSpitaL wERE NOT invoLved IN THIS Case.) dr. geRlacH'S exAMInAtiOn inDicAtEd ThAT buCHANNoN was SUfFERInG frOM eNDoMEtriTiS, An infECtIOn OF The uTErUs, rESULtInG frOM tHE CEsAREAn sECtIOn peRForMEd fIVE dAYS EarLier. dr. GerLacH tHEn TeLEphoNed DR. gIddEnS, thE oBsTETriCIAN-gyNecOLogist ("oB/gYN") ON calL foR JACKsoN cOuntY hOsPITAl ThaT 650 nighT, to disCuSS tHE caSE. DR. GIddeNS hAD ALso beEN bUcHannON'S ob/gYn Up uNtil tWO wEekS bEfOrE The DeliVErY, but because dR. gAPuLTOeS HaD DeliVereD buchaNnON'S BAby, Dr. gIDDens wAS NO LoNgeR consiDereD HEr aTTeNDIng pHYsIcIaN. dr. GERLAcH InFOrMeD dR. giDDENs of bucHannon's condItIOn AND Of her tESt ReSults, InfoRmEd HIm THAT BUCHAnnOn HAd REQueSTeD THat hE BE prEseNT, ANd asKed hIm to cOmE IN ON bUChAnNoN's BEHaLf. dR. GIDDeNs DEClIned TO coMe to thE eMERGENcy rooM. DR. gErlACH theN AdViSed Dr. GIdDEns tHAt HER rECOMMenDED CoURse oF TrEATMEnt WoUlD INClUde a sHot oF roCEPhIn,[2] 1 graM, By intrAMusCUlAR iNjeCtiON, AnD A PrEscRIptIoN OF DOxycycliNe.[3] dr. gIDdEns ConCUrrEd WiTh tHe ReCOMMeNDED cOuRSE OF tREATmenT. DR. GErLaCh furTHer pROpOSEd thAt BUcHaNnoN BE ReleASED aND thAT shE FolloW UP wiTH AN oB/gyn wiTHiN A few dAys. dr. Gerlach THeN ASKeD DR. GiDDENS tO do A "FoLLow-Up" eXamINatIoN with buChanNON iN 2-4 DAys, bUt HE DeClInEd that REQuesT, rEcoMmeNDiNG iNstead thAt BucHanNOn be InsTrUCTed tO retURn TO THe PhySIciAn WhO hAD DeLIvERed her bABy. Dr. GIDDenS THeN APproVED DR. GeRlach'S rEcOmmENDATIOnS fOR tREAtment, aND That tREAtMeNT wAS aDMINiSTEred. buchaNNoN WAs relEASed from the hOsPITAL At 10:45 p.m. ThE nexT MoRNIng, BucHAnnoN BeCAME uNCoNScIous aND UnREspOnsive; sHE WAs rUShED By AmBulAncE to scOttsBoRO mEdIcAL cenTer. On jULY 3, 1993 At 7:17 a.M., bucHaNnOn Was PRonoUNCEd dEad. THE OfficIAL cAUsE OF HER dEaTH was sEptiC sHocK DuE TO eNdoMETrItis dUE To ceSAreAN sECTiON. I. thE VERDICT aNd THE DeNIaL of tHe pLaINTIfFS' PoSTjUDGMeNT mOTioNs we fIrST cOnsiDer WhethER THe TRIaL CoURT ERRED In dEnyINg ThE PLaIntifFs' MOtIOn For A nEW trIAl. thE plaiNTifFS bASed tHAt MotION oN ThE ARguMEnT ThAt tHE jURY'S verDICt wAS Not sUPPoRTeD By THE EVidEncE. "[W]hEN THe EvIDeNce mEets THe `sUfficIENCY' TEst, jUry vErDIcTS aRE PrESumED CoRrecT, aND thIS prESUMPTion iS StREnGtHENEd by The TriAl COuRt's DeniAl oF a MotiOn FoR nEw tRiaL. TherEfOrE, A JUdGMEnt bAseD uPON A JURY vERdict AND suSTAiNED By tHe DENial oF a POsT-JuDGMENt MOtIOn FOr A New tRiaL, WiLl not Be revERseD on A wEIGht-of-ThE-eVIdENCE GrouND UnleSS It IS `plaINLY ANd PaLpaBlY' WRonG. aShbEE v. BroCk, 510 sO.2d 214 (alA.1987). see, ALsO, JaWaD v. graNAde, 497 sO.2d 471 (ALA.1986)." aLpINE BAy RESOrts, inc. V. wYAtt, 539 sO.2D 160, 162-63 (ALa.1988). thus, ThIs COUrt WiLl rEverSE THe tRial COUrt's deNiaL of tHe plaiNtiFFS' MOTION FoR a new TRial oNLY IF THiS COUrt cOncLUdES thAt The VerDict WAs PlaINlY AND pAlpabLY WROnG. GenErallY, iN ORdEr to ProVe LIaBiliTy iN A mEdIcAl-MaLprActIcE caSE, tHe PlaiNtIFF MUSt show (1) ThE aPPrOPrIATe sTAndaRD oF cAre fOR THE tReAtmeNt SuPPlIeD BY THE DefENdANT HeaLtH-carE PROViDeR, (2) A devIaTion FrOm thAT stAndArD oF care bY the DEFENDAnT, and (3) A prOxiMaTe cAusAL ConnectIOn betWeeN tHe iNJUrY aLLEgeD By The plaINTIfF aNd ThE DEfENdanT's brEacH of ThE sTANDARD of carE. LoOney v. DaviS, 721 so.2D 152 (ALA.1998). ThE plAINTiFfs PReSEnted tHE teStIMony Of Dr. wilLIAm e. gARrETT, ASSIStAnT pROFeSSOr OF SuRGeRY At MEHarrY mEDIcAl COlLegE. Dr. garReTt teSTIfiEd THat dr. GeRlACH'S eXamInAtiOn And treAtMeNt oF BuCHANNOn wAs BElOw thE STANDaRd OF caRE. howeVer, DR. shErrY 651 SQUIReS, AssOciaTe medIcAl diRECtOr OF tHe eMErgency DEpARtMeNt aT hUnTSVilLe HOspITAL, TEstIfyInG as aN exPERt ON bEHAlF OF dr. GERLach, StAteD tHaT Dr. gErLacH's tREATMEnT oF BuCHaNNOn mEt THE StAndArd oF cARE. the reSolUTiOn Of cOnfLICTS IN thE EvIdenCe rEsTS sOleLy WITH The trier Of FACT, In ThIS CASE, thE jurY. joNeS v. bAltazar, 658 sO.2d 420 (AlA.1995); jAmEs v. WoOlley, 523 So.2d 110, 112 (Ala.1988). The reCoRd CONtaINs SUBSTANtIaL eViDeNCe To SUpport The JuRy vErDICT; Thus, We MusT coNclUDe ThaT THE veRDIcT was NOT pLAINLY AnD PAlpABly wroNg. sTokES V. loNg-leWis fOrd, Inc., 549 SO.2d 51, 52 (Ala.1989); mERrell V. JoE bUlLard OldSmobIlE, Inc., 529 So.2D 943, 946 (AlA.1988). THE TRIAL CoUrt did Not ERr iN denyING The PLaINtiFFS' motIon FOR a neW TriAL. II. posttrial MOtIONs coNCErning DiSCOvErY RegaRdiNG JuRY dELibErAtIONs WE next CoNSIdER tHE pLainTiFFs' aRGUmEnt ThaT THe TRIaL CoURT erred iN denying ThEIr PosttriAL MOtIOnS seEkINg discoVery regARdiNG THE juRY'S DeLiBERATIonS. tHese mOTIOnS iNCLUDED a MOtioN TO SUbPoenA jurOrS, a MOtIOn To vACATE tHE oRDer QuAsHING THE JuROR suBpOenaS, a MoTIon tO TaKe juRor DEPosiTions, a MotIon fOr EnlARGeMeNt oF Time	798 So.2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of QuanettaM. Buchannon,deceased v.Rebecca GERLACH, M.D. 1991732. Supreme Court of Alabama. April 20, 2001. 648Sherryl Snodgrass Caffey, Huntsville, for appellants. John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, L.L.P.,Decatur, for appellee. HARWOOD,Justice. Charles Sharriefand Millie Sharrief,as administrators of theestate ofQuanetta M. Buchannon,deceased,suedDr.Rebecca Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive damages on allegations of awrongful death, inthe defendants' providing medical care to Buchannon. The trial court entered an "Order of Referral toMediation." During mediation, the plaintiffs' settled their claims against Dr. Giddens and Jackson CountyHospital; the court dismissed those defendants pursuant to a motionand joint stipulationfor 649 dismissal. Although he wasnolonger a party to thiscase, Dr. Giddens was later a witness at trial. Trial ofthe plaintiffs' claims against Dr.Gerlach began onSeptember 27, 1999. When Dr.Gerlach was called by the plaintiffs as their first witness, sheran out of thecourtroom. The trial judge offeredthe plaintiffs the option of continuing the trial in Dr. Gerlach'sabsence,but they declined to do so.Thetrial court thendeclared a mistrial.The plaintiffs then made amotionto tax costs to the defendant, butthe trialcourt denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant's absence. A second trial began onJanuary 24, 2000. On January 27, 2000,thejury returneda verdict for Dr. Gerlach. Thetrialcourt entered a judgment based on that verdict. The plaintiffs, without first informing the trial court, subpoenaedthe jurors for depositions, based on a suspicion that juror misconduct hadoccurredduringthe trial. When the trial court became aware of the subpoenas,it entered anorder quashing them. The plaintiffs then filed a "Motion toAlter, Amend, or Vacate" the order quashing the subpoenas,or in the alternative, a "Motion to Take Depositions ofJurors" and a "Motion for Enlargementof Time." Theplaintiffs alsofiled a "Motion to Vacate the Judgment," a "Motionfor a New Trial,"a"Motion for Post Judgment Hearing,"and a "Renewal of Motion to Take DepositionTestimonyof Jurors."In response, Dr. Gerlach filed a "Motion for Protective Order" anda "Motion to StrikeAffidavitsof Mr. Sharrief and Jurors." Thetrial court heard arguments on all the motions at the same time;itdenied all of the plaintiffs' motions, and granted all of Dr. Gerlach's motions. Theplaintiffs appealed. They make a number of disparate arguments; we summarize them into fourbasic arguments:(1) that the trial court erredin denying their motion to vacate the judgment,or, in the alternative,for a new trial, because, they contend, the jury verdict was plainly andpalpably wrong; (2) thatthe trial court committed reversible error by denyingthe plaintiffs' posttrialmotions concerning discovery regarding jury deliberations; (3) that thetrialcourt committed reversible errorsduring the trial;and (4) that the trial court erredin denying their motion to tax costs to Dr. Gerlach after the firsttrial hadended.[1] Therecord shows that Buchannon, age 19, was brought to the Jackson County Hospital emergencyroom at 9:05 p.m. on July 2, 1993. She had been suffering from vomiting, nausea,and diarrhea forthreedays. Dr.Gerlach, anemergency-room physician, obtainedBuchannon's medical history and examined her. Buchannon's medical history showed that she had delivered a child by cesarean section on June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The baby had beendelivered by Dr. Jenny Gapultoes.(Dr. Gapultoesand Hellen KellerHospital were not involved in thiscase.) Dr. Gerlach's examination indicated that Buchannon was suffering fromendometritis,an infectionof the uterus, resulting from the cesarean section performed five days earlier.Dr. Gerlachthen telephoned Dr.Giddens, theobstetrician-gynecologist ("Ob/Gyn") on call for Jackson County Hospital that 650 night, to discuss the case. Dr. Giddens had also been Buchannon's Ob/Gyn up until twoweeksbefore the delivery, but because Dr.Gapultoes had delivered Buchannon's baby, Dr.Giddens was no longer considered her attending physician. Dr. Gerlachinformed Dr. Giddens of Buchannon's condition andof her test results, informed him that Buchannon hadrequestedthat he be present, and asked himto come inon Buchannon's behalf. Dr. Giddens declined tocome to the emergency room.Dr.Gerlach then advised Dr. Giddens that her recommendedcourseof treatment would include ashot of Rocephin,[2] 1 gram,by intramuscular injection, and a prescription of Doxycycline.[3] Dr.Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that Buchannon bereleased and that shefollow up with an Ob/Gynwithin a few days. Dr. Gerlach thenasked Dr. Giddensto do a "follow-up" examination with Buchannon in 2-4 days, but he declinedthat request, recommendinginsteadthat Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddensthenapproved Dr. Gerlach's recommendations for treatment, andthat treatment was administered. Buchannonwas released fromthe hospitalat 10:45 p.m. The nextmorning,Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical Center.On July 3,1993 at 7:17 a.m., Buchannon was pronounced dead. The official cause of her death wasseptic shock due to endometritis due to cesarean section. I. The Verdict and the Denial ofthePlaintiffs'Postjudgment MotionsWe first consider whether the trial court erredindenying the plaintiffs' motion for a new trial. The plaintiffs based that motion on the argument that the jury's verdict was not supported by the evidence. "[W]henthe evidence meets the `sufficiency' test, jury verdicts are presumed correct, and thispresumptionis strengthened by thetrial court's denial of a motion for newtrial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgmentmotion for a newtrial, will not bereversed on aweight-of-the-evidenceground unless it is`plainly and palpably' wrong. Ashbee v. Brock, 510 So.2d 214(Ala.1987). See, also, Jawad v.Granade, 497 So.2d 471 (Ala.1986)." Alpine BayResorts,Inc. v.Wyatt, 539So.2d 160, 162-63 (Ala.1988). Thus, this Courtwillreverse the trial court's denialof the plaintiffs' motion for a new trial onlyif this Courtconcludes that the verdict wasplainly and palpably wrong. Generally, in order to prove liability in a medical-malpractice case, the plaintiff must show (1) the appropriate standard of care for the treatment supplied by thedefendanthealth-care provider, (2) a deviation fromthatstandard of care by the defendant, and (3)aproximate causalconnection between the injury alleged by the plaintiff andthedefendant's breach of thestandard of care. Looneyv. Davis, 721 So.2d 152(Ala.1998). The plaintiffspresented the testimony of Dr. William E.Garrett, assistant professor of surgery at MeharryMedical College. Dr. Garrett testified that Dr. Gerlach'sexamination and treatment of Buchannon was below the standardof care. However,Dr.Sherry651Squires, associate medical director of the emergency department at Huntsville Hospital,testifying asan expert onbehalf of Dr. Gerlach, stated that Dr. Gerlach'streatment of Buchannon met thestandard of care. The resolutionof conflicts in the evidence rests solelywith the trier of fact, in this case,the jury. Jones v. Baltazar, 658 So.2d 420(Ala.1995); James v. Woolley, 523 So.2d 110,112 (Ala.1988). The record contains substantial evidence to support the jury verdict; thus, we must concludethat the verdict was not plainly and palpablywrong. Stokes v. Long-LewisFord,Inc.,549 So.2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc.,529 So.2d943, 946(Ala.1988).The trial court did not err in denying the plaintiffs' motion for a newtrial. II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations Wenext consider the plaintiffs' argument that the trial courterred in denyingtheir posttrial motions seeking discovery regarding the jury's deliberations. These motions included a motion tosubpoena jurors, a motion to vacate theorder quashing the juror subpoenas,a motion totake juror depositions, a motion for enlargement of time	_798_ So.2d 646 (2001) Charles SHARRIEF and _Millie_ Sharrief as _personal_ representatives of Quanetta M. Buchannon, deceased v. Rebecca GERLACH, M.D. 1991732. Supreme Court of Alabama. April 20, 2001. 648 Sherryl Snodgrass Caffey, _Huntsville,_ for _appellants._ John _S._ Key and Jenny L. McLeroy of Eyster, Key, _Tubb,_ Weaver & Roth, _L.L.P.,_ Decatur, _for_ appellee. HARWOOD, Justice. Charles Sharrief and Millie Sharrief, as administrators of _the_ estate of Quanetta M. Buchannon, deceased, sued Dr. _Rebecca_ Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive _damages_ on allegations of a wrongful death, _in_ _the_ defendants' _providing_ medical care to Buchannon. The trial _court_ _entered_ an "Order of Referral to Mediation." During mediation, the plaintiffs' _settled_ their claims against Dr. Giddens and Jackson County Hospital; the court dismissed those defendants pursuant _to_ a motion _and_ _joint_ stipulation for 649 dismissal. Although he _was_ no longer a party to this case, Dr. Giddens _was_ later a witness at trial. Trial of the plaintiffs' claims _against_ Dr. Gerlach began _on_ September 27, _1999._ When _Dr._ Gerlach was called _by_ the plaintiffs as their first witness, she ran _out_ _of_ _the_ courtroom. The _trial_ judge offered the plaintiffs the option _of_ continuing the trial in Dr. Gerlach's absence, _but_ they declined to do so. The trial court then declared a _mistrial._ The plaintiffs then made a motion _to_ tax costs to the defendant, but the trial _court_ denied the motion, _on_ the _rationale_ that the plaintiffs _had_ refused to proceed with the _trial_ in the defendant's absence. A second trial began on _January_ 24, 2000. On _January_ _27,_ _2000,_ the jury returned _a_ verdict _for_ _Dr._ Gerlach. The trial court entered a judgment _based_ _on_ that _verdict._ _The_ plaintiffs, without first informing the trial court, subpoenaed the jurors _for_ _depositions,_ based on a _suspicion_ that juror misconduct _had_ _occurred_ during the _trial._ When _the_ trial court became aware of the subpoenas, it _entered_ an order quashing them. The _plaintiffs_ then filed a "Motion to _Alter,_ Amend, or Vacate" the order quashing the subpoenas, or in the alternative, a "Motion to Take Depositions _of_ _Jurors"_ and a "Motion for Enlargement of _Time."_ The plaintiffs also filed a "Motion to Vacate the Judgment," a "Motion for a _New_ Trial," a "Motion for Post Judgment Hearing," and a "Renewal of _Motion_ to Take _Deposition_ _Testimony_ of Jurors." _In_ _response,_ _Dr._ Gerlach _filed_ a _"Motion_ _for_ _Protective_ _Order"_ and a "Motion _to_ Strike Affidavits of Mr. _Sharrief_ and Jurors." The _trial_ court heard arguments on all the motions at the _same_ _time;_ it denied _all_ of the _plaintiffs'_ motions, and _granted_ _all_ of _Dr._ Gerlach's _motions._ The _plaintiffs_ appealed. They make _a_ number of disparate arguments; we summarize them into four basic arguments: (1) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for _a_ new trial, because, they contend, the _jury_ verdict was _plainly_ _and_ palpably wrong; (2) _that_ the _trial_ court committed reversible _error_ _by_ denying _the_ plaintiffs' posttrial motions concerning discovery _regarding_ jury deliberations; (3) that the trial court committed reversible errors during the _trial;_ and (4) that the trial court _erred_ _in_ _denying_ their _motion_ to tax _costs_ to Dr. _Gerlach_ after the _first_ trial had _ended.[1]_ The _record_ shows that Buchannon, _age_ 19, was brought to the Jackson County Hospital emergency room at 9:05 p.m. _on_ July _2,_ 1993. She had been suffering from vomiting, nausea, and diarrhea _for_ three days. Dr. Gerlach, an emergency-room physician, obtained Buchannon's medical history and _examined_ her. Buchannon's medical _history_ showed that she had delivered a child by _cesarean_ section _on_ June _27,_ 1993, _at_ Hellen Keller Hospital in Muscle _Shoals._ The baby had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and _Hellen_ Keller Hospital were not involved in this case.) _Dr._ Gerlach's examination indicated _that_ Buchannon was suffering from _endometritis,_ an infection _of_ the uterus, _resulting_ _from_ the cesarean section performed five days earlier. _Dr._ Gerlach _then_ _telephoned_ Dr. Giddens, _the_ obstetrician-gynecologist ("Ob/Gyn") on _call_ for Jackson County Hospital that 650 night, to discuss the _case._ Dr. Giddens had also been _Buchannon's_ Ob/Gyn up until two weeks _before_ the delivery, but because _Dr._ Gapultoes had delivered Buchannon's _baby,_ Dr. Giddens _was_ no longer considered _her_ attending physician. Dr. Gerlach informed Dr. Giddens of Buchannon's condition and of her test results, informed him that Buchannon _had_ _requested_ _that_ he be present, and asked _him_ to come in on Buchannon's behalf. Dr. _Giddens_ declined to come to the emergency room. Dr. Gerlach _then_ _advised_ Dr. _Giddens_ that her _recommended_ _course_ _of_ treatment would include a _shot_ of Rocephin,[2] _1_ gram, by intramuscular injection, and _a_ prescription of Doxycycline.[3] Dr. Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that _Buchannon_ _be_ _released_ and that she follow up with _an_ Ob/Gyn within a few days. Dr. Gerlach then asked Dr. Giddens to do a "follow-up" _examination_ with Buchannon in 2-4 days, but he declined that request, recommending instead that Buchannon be instructed to _return_ _to_ the _physician_ who had delivered her baby. Dr. _Giddens_ then _approved_ Dr. Gerlach's recommendations for treatment, and that treatment was administered. Buchannon was released from the hospital _at_ 10:45 p.m. The next _morning,_ Buchannon became _unconscious_ and unresponsive; she was _rushed_ by ambulance to Scottsboro Medical Center. On _July_ 3, 1993 _at_ 7:17 a.m., Buchannon _was_ _pronounced_ dead. The _official_ cause of her death was septic shock _due_ to endometritis due to cesarean _section._ I. The _Verdict_ and _the_ Denial of the Plaintiffs' Postjudgment Motions We first consider whether the trial court erred in _denying_ the plaintiffs' motion for a new trial. The _plaintiffs_ based that motion on _the_ argument _that_ the jury's verdict was not supported by the evidence. "[W]hen the evidence meets the `sufficiency' test, jury verdicts are presumed _correct,_ _and_ this presumption is strengthened by the trial court's denial of a motion for _new_ trial. Therefore, a _judgment_ based _upon_ a _jury_ verdict and sustained by the _denial_ of a _post-judgment_ motion for a new _trial,_ will _not_ be _reversed_ on a weight-of-the-evidence ground unless it is `plainly and palpably' _wrong._ Ashbee v. Brock, 510 So.2d _214_ (Ala.1987). _See,_ also, Jawad v. _Granade,_ 497 So.2d 471 (Ala.1986)." Alpine Bay Resorts, Inc. v. Wyatt, _539_ So.2d 160, 162-63 (Ala.1988). Thus, _this_ Court will reverse _the_ trial court's denial of the _plaintiffs'_ _motion_ for a new trial only if this Court _concludes_ that the verdict was plainly and palpably wrong. Generally, in order to prove liability in a medical-malpractice case, _the_ _plaintiff_ must _show_ (1) the appropriate _standard_ of care for _the_ treatment supplied by _the_ defendant _health-care_ provider, (2) a deviation from that standard _of_ care by the defendant, and (3) a proximate causal connection between the _injury_ alleged by the _plaintiff_ and the defendant's breach _of_ _the_ standard of care. _Looney_ _v._ Davis, 721 So.2d 152 _(Ala.1998)._ _The_ plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery _at_ Meharry Medical College. _Dr._ Garrett testified that Dr. _Gerlach's_ examination and _treatment_ of Buchannon was below the standard _of_ care. However, Dr. Sherry 651 Squires, associate medical director of _the_ emergency department at Huntsville Hospital, testifying as _an_ expert on behalf of Dr. Gerlach, _stated_ that Dr. Gerlach's treatment of Buchannon met the standard of care. The resolution of conflicts in the evidence rests solely with the _trier_ of _fact,_ in this _case,_ the jury. _Jones_ v. Baltazar, 658 _So.2d_ 420 (Ala.1995); _James_ v. _Woolley,_ 523 So.2d 110, 112 (Ala.1988). The _record_ _contains_ _substantial_ _evidence_ to support the jury verdict; thus, we must conclude that _the_ verdict was not plainly _and_ _palpably_ wrong. Stokes v. Long-Lewis Ford, Inc., 549 So.2d 51, 52 (Ala.1989); Merrell v. Joe Bullard _Oldsmobile,_ Inc., 529 So.2d 943, _946_ (Ala.1988). The trial court did _not_ err in _denying_ the plaintiffs' motion for a _new_ _trial._ II. Posttrial _Motions_ Concerning Discovery _Regarding_ Jury Deliberations _We_ next consider the plaintiffs' _argument_ that the trial court erred in denying their posttrial motions seeking _discovery_ regarding the jury's deliberations. These motions included a motion to subpoena jurors, a motion to vacate _the_ order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time
75 Ill. App.2d 144 (1966) 220 N.E.2d 590 Decatur and Macon County Hospital Association, a Corporation Not For Profit of Illinois, for the Use of Niagara Fire Insurance Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire Insurance Company, and Merchants Fire Assurance Corporation, Plaintiff-Appellee, v. Erie City Iron Works, a Foreign Corporation, T.A. Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant-Appellant. Gen. No. 10,679. Illinois Appellate Court Fourth District. September 26, 1966. Rehearing denied October 24, 1966. 145 146 Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler, of counsel), for appellant. Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel), for appellee. TRAPP, P.J. Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie. Plaintiff's action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title to it had not yet passed to the plaintiff. The defendant's theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff's damages; that the court should have directed a verdict in favor of this defendant, or granted defendant's post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff's complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant's motion for mistrial because of prejudicial conduct of counsel; that conduct of 147 a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed. Plaintiff purchased the boiler as a "package" boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on. The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building. In making the installation, Brinkoetter did not install what has been called a "dirt leg," i.e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a "dirt leg." The latter testified that the contractor should install a "dirt leg" whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not. Neither the fabricated boiler nor the connecting line, as installed, included a "strainer," which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer's schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard 148 of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i.e., a device which lowered the pressure from the 35-pound pressure in the main to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work. Under the terms of its contract with Erie, plaintiff elected to have the services of a start-up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as the result of injuries sustained. With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. Charles Fearn, foreman 149 of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this would be done. Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to. The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve. There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1/16th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. 150 This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial. The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions. From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition. There is	75 ill. app. 2d 144 ( 1966 ) 175 n. e. 2d 590 decatur and macon county hospital association, a corporation not for profit of illinois, for the use of niagara fire insurance company, phoenix assurance fund, standard fire insurance company, rochester american insurance company, american insurance company, united states fire insurance company, hartford fire insurance company, and merchants fire assurance corporation, plaintiff - appellee, defendant. erie city iron works, a foreign corporation, t. a. brinkoetter & sons, inc., a foreign corporation, and illinois power company, an illinois corporation, defendants, huron city iron works, a foreign corporation, defendant - appellant. gen. no. 10, 679. illinois appellate district fourth district. september 26, 1966. rehearing denied october 24, 1966. * 145 * 146 earl s. hodges, of springfield, and greanias & owen, of decatur ( marshall a. susler, of counsel ), for appellant. giffin, winning, lindner & newkirk, of springfield ( james m. drake, of counsel ), for appellee. trapp, p. j. defendant erie city iron works, hereinafter designated erie, appeals from a judgment in the sum below $ 30, 818. 50 entered in favor of the plaintiff upon the verdict of a jury against erie and t. a. brinkoetter & sons, inc. other disposition has been made applicable to the case against the latter and we consider only the appeal of erie. plaintiff ' s action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas - fired boiler manufactured by erie and installed by brinkoetter. at the time of the explosion installation had just been completed and was at the stage of the initial start - up and adjustment of the boiler. title to it had not yet passed to the plaintiff. the defendant ' s theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff ' s damages ; that the court should have directed a verdict in favor of this defendant, or granted defendant ' s post - trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to a jury, § part i and count ii of plaintiff ' s complaint, which respectively were predicated upon a res ipsa lo ##quitur theory and specific negligence theory ; that there was error by the court in denying defendant ' s motion for mistrial because of prejudicial conduct of counsel ; that conduct of * 147 a juror was prejudicial to defendant ; and that there was error by the court in giving certain instructions to the jury ; and other errors hereinafter discussed. plaintiff purchased the boiler as a " package " boiler fabricated by erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on. the fire control unit and the main motorized valve were not manufactured by erie but were purchased by it and affixed to the fabricated boiler. the brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building. in making the installation, brinkoetter did not install what has been called a " dirt leg, " i. e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. its function is to catch condensed moisture and debris in the gas line. plaintiff had retained consulting engineers to design and supervise installation of the boiler. the schematic drawing provided by the engineer did not show a " dirt leg. " the latter testified that the contractor should install a " dirt leg " whether drawn in the plans or not. officers of brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not. neither the fabricated boiler nor the connecting line, as installed, included a " strainer, " which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. when used, it is installed in the line ahead of the valves and controls. a brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. such a strainer was not included in the unit fabricated by erie. the consulting engineer ' s schematic drawing did not include a strainer. he testified that he would have included it if he had known that a strainer was recommended. an officer of brinkoetter testified that he had never heard * 148 of a strainer in a gas line. in behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. it appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i. e., a device which lowered the pressure from the 35 - pound pressure in the main to some 10 pounds as specified by the boiler. a used regulator was available at the hospital and was installed. at first it did not function, but after some adjustment was observed to be reducing the pressure. it was not tested after the explosion. in installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. it does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. there is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work. under the terms of its contract with erie, plaintiff elected to have the services of a start - up engineer. upon notification of the completion of the installation such engineer, one enders, was sent by erie. the explosion in issue occurred at 11 : 40 a. m. on thursday, september 25, 1958. in summary, it appears that enders had arrived on the preceding tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. enders died following the explosion, apparently as the result of injuries sustained. with regard to the things done during this period, one binns, a member of the hospital maintenance staff, testified that enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion enders was making an adjustment of the water level in the boiler. charles fearn, foreman * 149 of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and enders had told him that the boiler was on low fire or " no load " firing, and that he was going to test the boiler on high fire, asking fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. no specific arrangement was made as to when this would be done. following the explosion, a state boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. the main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one - third open. the boiler inspector testified that he assumed that it was open. it does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to. the main valve was then disassembled. most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve. there is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1 / 16th of an inch or so, the width of the indentation being that of a blade of a table knife. there is other testimony that the seat bore only normal scratches. it does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. at the trial the neoprene seal no longer bore any indentation. * 150 this was explained as being due to the resilient nature of the substance. the steel valve seat was not produced at the trial. the consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. the opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. paul wilson, an employe of erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and george harper, a professor of engineering at the university of illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions. from the record it appears that a variety of factors inducing the explosion may have existed. there is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition. there is	75 Ill. App. 2d 144 (1966) 220 N. E. 2d 590 Decatur and Macon County Hospital Association, a Corporation Not For Profit of Illinois, for the Use of Niagara Fire Insurance Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire Insurance Company, and Merchants Fire Assurance Corporation, Plaintiff - Appellee, v. Erie City Iron Works, a Foreign Corporation, T. A. Brinkoetter & Sons, Inc. , a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant - ApOrllant. Gen. No. 10, 679. Illinois Appellate Court Fourth District. September 26, 1966. Rehearing denied October 24, 1966. * 145 * 146 Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler, of counsel ), for appellant. Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel ), for appellee. TRAPP, P. J. Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $ 30, 818. 50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T. A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie. Plaintiff ' s action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas - fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start - up and adjustment of the boiler. Title to it had not yet passed to the plaintiff. The defendant ' s theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff ' s damages; that the court should have directed a verdict in favor of this defendant, or granted defendant ' s post - trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff ' s complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant ' s motion for mistrial because of prejudicial conduct of counsel; that conduct of * 147 a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed. Plaintiff purchased the boiler as a " package " boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on. The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building. In making the installation, Brinkoetter did not install what has been called a " dirt leg, " i. e. , a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Ppaibtiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a " dirt leg. " The latter testified that the contractor should install a " dirt leg " whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not. Neither the fabricated boiler nor the connecting line, as installed, included a " strainer, " which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer ' s schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard * 148 of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i. e. , a device which lowered the pressure from the 35 - pound pressure in the mQim to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the eviR4nce as to whether or not welding slag would enter the pipe by reason of this work. Under the terms of its contract with Erie, plaintiff elected to have the services of a start - up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11: 40 a. m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preced8Gg the explosion. Enders died following the explosion, apparently as the result of injuries sustained. With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. fhWrles Fearn, foreman * 149 of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or " no load " firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was Kqde as to when this would be done. Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one - third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to. The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve. There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1 / 16th of an inch or so, the width of the indentation being tya6 of a blade of a table knife. There is other testLmIny that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. * 150 This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial. The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions. From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and ah$ther such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition. There is	75 Ill. App.2d 144 (1966) 220 N.E.2d 590 Decatur Macon County Hospital a Corporation For Profit of Illinois, for the Use of Niagara Fire Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance United States Fire Insurance Company, Hartford Insurance Company, and Merchants Fire Corporation, Plaintiff-Appellee, v. Erie City Iron a Foreign Corporation, T.A. Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant-Appellant. Gen. No. 10,679. Illinois Appellate Court Fourth District. September 1966. Rehearing denied October 1966. 145 146 Earl S. Hodges, of Springfield, and Greanias & Owen, of (Marshall A. Susler, of counsel), for appellant. Giffin, Winning, Lindner & Newkirk, of (James M. Drake, of counsel), for appellee. TRAPP, P.J. Defendant Erie City Iron hereinafter designated Erie, a judgment in sum of $30,818.50 in favor the plaintiff upon the verdict of a jury against Erie and Brinkoetter & Inc. Other disposition has been made as to the case against the latter and we consider only of Erie. action was for property damage in the amount of the judgment incurred as the of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of explosion installation had just been completed and was at the stage of the initial start-up and adjustment of boiler. Title to it had yet passed to the plaintiff. defendant's theory is that defendant was not guilty the negligence that was the proximate cause of that the court have verdict in favor of this defendant, or defendant's post-trial for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the error by the court in submitting, to the jury, both Count I and Count II of plaintiff's which were predicated upon res ipsa loquitur theory and specific negligence theory; that there was error the court in defendant's motion for mistrial because of prejudicial conduct of counsel; that conduct of 147 a juror was prejudicial to defendant; and that there was error by the in giving instructions to the jury; and other errors hereinafter discussed. Plaintiff purchased the boiler a "package" boiler fabricated Erie and shipped assembled for installation as a complete unit with automatic controls built on. The fire control unit and the main motorized valve were manufactured by Erie but were purchased by it and affixed to the fabricated boiler. Brinkoetter called it to install boiler and connect it the line bringing gas the In making the installation, Brinkoetter did not install what has been called a "dirt leg," i.e., a trap consisting of a length of pipe extending beyond point where vertical gas is turned so travels horizontally. Its function is to catch condensed moisture and debris in the gas Plaintiff had retained consulting engineers to design installation of the The schematic drawing provided by the engineer not show "dirt leg." The latter testified the contractor should install a "dirt whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs call them, otherwise it does not. Neither the fabricated boiler nor the connecting line, as installed, included a "strainer," which described as a distinctive appearing section of containing a screen, the function of which is to catch debris which might be carried the line by flow of gas. When used, it is installed in the line ahead of the valves and controls. brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in unit fabricated by Erie. The consulting engineer's drawing did not include a strainer. He testified that would have included it if he had known that a strainer recommended. An officer of Brinkoetter testified that he had never heard 148 of a in a gas line. In behalf of the latter, its foreman and employes testified that as the gas was being steps were taken knock loose and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, a device which the pressure from the 35-pound pressure in the main 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed reducing the pressure. It was not after the explosion. In installing the regulator at this time, necessary to cut the gas line with a torch and weld on a section of pipe. It not appear what, if anything, was done to for and remove debris in the pipe following this There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work. Under the terms of its contract with Erie, plaintiff elected to the services a engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a.m. on September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 and then shut down, and that on the morning of the 25th it had been started up and fired for 2 hours the explosion. Enders died following the explosion, apparently as the result of injuries sustained. With regard to the things done this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the operation, handled controls made adjustments, and that immediately prior to the explosion Enders was making an adjustment of water level in the boiler. Charles Fearn, 149 of the gas distribution crew of the utility which was working the exterior line, testified that he had been in the boiler room during the morning and Enders had told him that boiler was on low fire or "no load" firing, and that he was going test the boiler on high fire, asking to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as when this be done. Following the explosion, a State boiler inspector, and representatives of interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to The main valve was examined as its indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler testified that he assumed that it was open. It does not appear that any organized procedure was followed so that expert present observed all of the matters testified to. The main valve was then disassembled. Most witnesses testified observing some scale pieces of welding slag on both the upstream and downstream sides valve. There is that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be and that the stainless steel seat the valve was scored to a depth of 1/16th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other that the bore only normal scratches. It does appear that were made to determine the indentations on the neoprene seal with the scoring of the valve seat. the the neoprene seal no longer bore any indentation. 150 This explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial. The consensus of the testimony that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, employe of Erie in charge of their service department, that he did not believe it possible to find the actual cause of the majority of explosion cases, George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained certainty what happened, but that it was necessary to draw deductions. From the record appears that a variety of factors inducing the explosion may existed. There is, course, the contradictory nature of the testimony as to or not the motorized main valve was closed or open, whether or slag from had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition. There is	75 iLL. aPP.2d 144 (1966) 220 N.e.2D 590 dECatuR AND MAcon COUntY HosPiTAl AsSOcIaTIon, a coRPorATION not FoR ProFIt oF ilLiNOiS, FOR thE USE of NiaGara fIRE INsURaNcE COmpANy, PHoENix asSURAnCE cOMPaNY, StaNdard Fire inSurANce COMpaNy, ROChestER AmerICAn iNSuraNCE COmPANy, AMericaN inSuRaNcE cOmpANY, UnitED StatEs fIRE iNsurAncE CoMpANy, HartForD FIRE InSURANCe cOMpany, and MERCHaNts FIrE ASSURancE cORPOratiON, PLAINTIfF-AppeLlEe, V. ERie CIty IRon woRkS, A fOrEiGn cOrpORATiOn, T.A. bRINkoeTtER & SoNS, InC., a fOREIgn cOrpOrAtIOn, aND IllinOis pOWEr comPaNy, an IlLiNoIS CorpORAtiOn, DEfENDanTs, erie ciTy Iron wORKs, a FOReIgN CorPOraTiON, DEfENdAnT-apPeLlaNt. gEN. NO. 10,679. IllinoIs ApPeLlATe coURt FOurTh DIsTriCT. sePTeMBER 26, 1966. ReHEArING DeNieD OcTOBER 24, 1966. 145 146 eArl s. hOdGEs, OF SPRINgFIelD, AnD greaniAs & Owen, Of DEcAtUR (MarSHAlL A. SUsleR, of COUnseL), FOR apPELlAnt. GiFFIN, wINniNG, LInDNEr & nEWKiRK, of SpriNGfieLd (JameS m. DRaKE, of couNsEl), FOr aPPellEE. tRapp, P.j. dEfENDAnT erie ciTy IrON WoRks, HEreINaFteR desIgnatED erIE, apPEals fRoM A juDgmeNT IN thE sUM OF $30,818.50 entereD in faVOR oF ThE pLaiNtIFf upON The vErDiCT oF A JUrY AGainST EriE AnD T.A. brInKoetTeR & SoNS, INc. oTHer disPoSItion has Been maDE aS To THE cASe aGainST thE laTTeR AnD We CoNSIDer OnLY The Appeal oF eRIe. pLAINTiFF'S aCtioN was for proPERTY DaMaGE in the APPrOXimATE AmoUNt Of The JudGmENt iNcurrEd AS THE rESUlt Of tHE eXpLoSion of A GaS-FIreD bOIlER ManufACTUrEd BY eRie aND iNStalLeD By BRinKOEtteR. at tHE TImE of thE ExPLoSiON iNsTaLLATIoN Had JUst Been CoMpleTED aND was at thE STagE Of thE iNitIAl staRT-up and AdJustmENT oF thE bOiLer. titlE TO It hAD Not YEt PAsseD TO thE PlaintIFf. ThE dEfendANt'S THEoRY Is tHAT DEfeNDaNT waS noT guILty OF thE NeGLiGEncE THAT WAS thE pROxIMate CAUSe Of pLaiNtiff'S dAmAGeS; thAT tHE cOurt SHould Have direcTED A VerDiCt In favOr of ThIs dEfENdanT, OR graNTeD DEFEndaNT's posT-trIal motioN For judgmENT NotWIThStandiNG tHe vErdiCT of The Jury OR, iN THE AlteRNaTIVe, SHoULD HavE grANtEd defEnDanT A new TRiaL of the issueS, BECaUsE Of ERrOr CoMMiTteD By the COuRt iN sUBmITTINg, tO tHE JURy, boTh COUNT I anD couNt Ii OF pLAInTIfF's COmplainT, WHIch ReSPECTivelY WEre PRediCaTeD upOn a RES iPsa LoquITur tHeOry ANd sPeCifIc neGligenCE THeOrY; that tHEre Was ERror BY ThE coUrt IN dENyinG DEfEndaNT'S mOTIOn FOR MIstRIAl bEcauSe OF PREJUDICIAL cOnDUCt of CoUNSEL; THAT cONDUCt Of 147 a JUROr was pRejudiCIaL To dEFEndANT; And THaT TherE wAS ERrOr by the CouRT In gIVing CertAIn instRUcTionS tO THe JURy; and OtHER errORS hEreinAfter diSCUsSEd. plaiNTiFF pURchASEd thE boIlEr as A "PaCKage" BOiLER faBrICatEd bY ERie at iTS pLANT aND ShipPED AsSEMBLEd FOr insTAllaTioN aS A cOMpleTe UNiT wITh AUToMAtIC FIRing coNTroLs built on. THE FIrE cONTRoL UnIT AND ThE maIn mOTORizED vALvE WERE nOt MaNUfACtuRED By ERiE BUT werE puRcHAseD bY it aND AFFIxEd TO tHe FaBriCAted bOiLEr. tHE BrInKOeTtER cONtrACT CaLLED FoR It to inStAll thE Boiler anD CoNnEcT iT tO thE liNe bRingINg gAs inTo THE BuiLDinG. iN mAKIng THe INSTaLLAtIOn, BRINKoeTteR Did NOt instalL WhAT haS bEeN Called a "DiRt leg," i.e., A TrAP coNsISTing oF A LeNGtH Of Pipe ExtendInG bEYonD THe PoINt whErE A vertical gAS LINE iS TUrnED sO THaT iT tRaveLS hoRiZontALLY. iTs FUnCtion Is tO cAtCh CondenSEd MoISTuRE AnD dEBriS In THE Gas lInE. plaInTiFF haD RetAIned conSULtiNg enGInEeRS to dESIgN and SuPerVIse InsTallAtioN OF thE boiLeR. THE schEMatiC DRAWIng pROVIDed By ThE EngineEr Did NOt ShOw a "diRt lEg." tHe lattER TEstifIed ThaT tHE cOnTrActOr SHoulD InStALl A "DIrT Leg" wHethER dRawn In THe plANs or noT. OFfIcERS Of BrINkOETteR saY THat it PuTS In Dirt leGs wHEn the pLanS caLl FOR thEM, othErWIsE It doeS nOT. nEITHer The FaBricaTed boILeR nOR tHE cONNecting lIne, aS INSTALleD, IncluDeD a "sTRaIner," WHICh is desCribed aS a DistiNcTiVe APPeARING sEctIOn Of PIpe cONtaiNing a ScReEn, ThE fuNcTION oF whIch IS tO CATcH DEBRis WhICH MIGhT Be CaRrieD tHRoUGH ThE liNe bY THe FLoW Of gAS. whEn USEd, It iS iNstaLLed IN ThE LinE aHEaD OF THE vALves and CONTrOlS. a bROchurE Of THE VAlvE MANuFActuREr RecOMmEnDEd thAT a sTrAineR bE PlACEd AHEaD Of ThE MAiN ValVE. SucH a sTrAiNER Was NoT inCLUdeD iN The UNIT FAbRICAtED bY erIe. ThE cOnSuLtING EnGiNeeR'S schEmAtiC dRaWIng dId noT iNcLUDE a StRaiNeR. HE tESTiFiED ThAt hE wOuLD HAve INcLUDed it if hE haD kNoWN THat a stRaInEr WaS recOmmENded. An ofFIcER of brInKOETTer tesTifIeD ThaT He hAD NeVEr hEArD 148 oF a sTRAiNer In a Gas lINE. In BehALf of tHe LaTtER, ITS foreMAN And emplOyeS TEStifieD that As tHe gAS LINe wAS bEInG instaLLeD, stEPS WeRe Taken To knOcK LOOSE tHe scAle And clEaN The CONnECTiNG PIPE. It AppEARs thAt The iNSTALLATiOn WAS nEARLY COmPLeteD whEn the coNTRACtOR wAS aDViSed bY thE gAS coMpANY ForEMan tHaT iT WoulD be nEcessAry To INstAll A REGUlATOR, i.e., A DEViCE WHIcH lowerEd THe prEsSure FRom the 35-PoUND prEsSurE iN tHe MAIN tO SOME 10 PoundS aS SpeciFIED bY the BoilER. a UsED RegUlAtOr Was AVAiLAbLE at tHe hosPital AND was InsTAlleD. At first IT Did NOT FUNCtion, bUT AFTer SoMe adjUStMENt WAS OBseRveD tO Be REdUcing tHE pREssurE. it was nOt tesTed AFTeR tHE EXPLoSION. iN iNstallIng THe regUlaTOR aT ThIs tiME, iT Was NEcESsAry tO cuT tHe gAS lIne wIth A tOrCH anD Weld On A sEcTION Of pIpe. IT dOEs nOt AppEAR whAt, iF AnYtHInG, Was DoNE to iNSPEcT for and remOvE DebRIS iN ThE piPE FolloWiNg tHIs OPERAtIoN. THEre IS some cONflicT In tHe EvidenCE as TO WheThER or NOt weLDINg SLAG WOulD enTEr tHE PIPe by REASON of THIs wORK. UNdeR THe TERMS OF Its CONTRAcT wItH ErIe, plainTiff ELectEd to haVE THe SERVICeS of a sTaRT-UP ENgINEER. Upon nOtIFicATioN Of the COmPLetion Of tHe INsTallaTioN SuCh EnGiNeeR, one eNdERs, WAS sEnT BY eRIE. tHE exPLoSIon in isSUe OcCUrRed aT 11:40 a.M. ON THURSdAY, sEPtember 25, 1958. In suMmaRY, it aPPears thAT eNdErs HAD aRriVED ON thE preCedING tueSday, THAt the bOILeR wAS STarTEd Up aNd fiREd for soME 20 Hours AND tHeN shuT DOwn, AnD THaT On The moRnING Of the 25th IT haD beEN STaRTED uP AnD fIrED FoR some 2 HOuRs PREcEdINg ThE ExplosiON. EndeRS diEd folLoWing thE exPLOsIOn, APPareNtLY AS tHE ReSULT Of InJuRIeS suSTAINed. wiTh rEgARD tO THe tHINgs doNE dURING This perioD, OnE bInNs, A memBeR oF tHE hOSPITAL maINtENanCE Staff, TesTiFiEd THaT EndErs sTarTEd thE BOiLer operaTIOn, Handled tHe ConTRolS aNd mAde ADJuStMenTs, aNd ThaT immEDIaTeLy pRIor To thE EXPLOSioN EnDERS was maKIng An AdjustMent Of THE WaTEr Level iN tHe boIleR. ChArleS fEARn, forEMAn 149 Of THe GaS distribuTion CREW Of tHE UTiLIty comPany which waS WORkiNG on tHE exTERioR gas lINe, tESTiFIEd ThAT HE hAd Been IN The bOIlEr ROom durIng The MORninG aND EnDeRS HaD TOlD Him thaT THE boiLeR was On LoW FIrE OR "nO LoaD" fiRiNG, ANd THaT HE Was goiNg To TEST THE bOiLEr oN hIgH fIRe, asKINg FEaRn TO timE The meTer oUtsIdE So ThaT TheRe CoULD be a meASuReMent oF tHE cubic FEet of Gas ENtERInG thE boiLEr on HigH fIrE. nO sPeciFIC ARraNgemEnT waS mAde As To wheN thIs woulD be DoNe. FOLLowiNG tHE EXplosIOn, a sTATE BOiLER INSPECtoR, AnD RePrESENtAtiVes oF the iNTerEsted PArTIES, TOGEther wITH EnGiNeERs And ExpErtS reTAined By THEM, aSsembLED At tHE scEnE to eXAMiNe ThE BOiLer wHiCH haD BEEn kEpt UnDiSTurbeD. SEvErAL oF them TeSTIfiEd thaT tHEY had noticed tHe aBsence OF tHe dIRT lEg ANd ThE scREen In tHE gAS LiNE COnNECTEd To The Boiler. the mAIN vALvE Was eXamINeD AS To its eXtErNaL INDIcaTor and The TestimONy VArIEs froM the stAtEmEnT THAT It wAs aPpaRENTly ClosED, throUGh SlIgHtLy OPEN to one-THiRd opeN. tHE boiLer inSpECTor TEStIfied ThAt hE aSsuMed ThAt iT was oPEN. IT DoEs not AppeAR tHaT ANy ORGanIZed PROCeDUrE wAs FOLLOwED so THaT EACH EXpERT PrEsenT obSeRved All of THe MATtERS TEStiFIed to. ThE MaiN ValVe wAs ThEN disasSeMbLeD. Most wiTnESSES testIfiEd tO oBsERVING sOmE sCaLE aNd seVERaL pIecEs Of WEldInG SlaG oN bOth ThE UpSTReaM anD DOWNStReaM SIdeS OF The vaLve. thERE iS TeSTImOny ThaT UPon eXAmiNatiOn OF tHE sevERaL PaRTs of tHE vALvE, A rEsIlieNt neOPrene sEal Was obSerVed To be iNDeNTed And tHAT tHe sTAinLESs sTEEL seAT oF ThE VAlve waS scoRed tO a dEpTH OF 1/16th OF aN INCH oR So, THE WidTh oF thE INDeNTAtioN Being THAT oF A Blade Of a TAble KNiFE. THERe IS OThEr tesTImoNy thAT tHE SeaT boRe ONLY noRmaL scrATcHes. it DoeS NOT ApPEaR THAT TEStS WERE madE to DeTeRMInE wHEtHER THE indentaTioNS oN THE nEOprEne Seal CoincIDeD wItH the ScoRiNg OF thE VAlVe SEat. AT THe TRial ThE NeOpREne SEaL nO lONgeR bORE Any INdeNTatION. 150 tHIS WAs ExpLaINED as BeinG duE to THE RESIlIENt naTuRe of ThE suBStaNce. The sTEEl valVe sEaT WAS NoT proDucED at tHE tRIal. the cONSENsuS oF THe tEstimOnY iS tHAt TherE WAs a GAS eXPLosioN FolLOWEd By AN EXPLosIOn of The BOILER ITsElf. tHE OpInIoN teSTImOnY IS THat THE FirST ExplOSiON ReSulTeD FrOm the iGnITIon oF a SurplUs of gAs wIThIn tHE cOMbUSTION CHambeR, wHich gaS WAs someHOW ignited. pauL wIlsON, aN EMPLoYe oF ERie In ChARge of tHEIr SErVICe DEPaRTmenT, testifiED tHat He dID not BELieVE it poSSibLE to FinD ThE aCtUal CAuSE of THe mAjORITY Of EXPlosiON CAsEs, anD GEorgE haRPER, A proFeSsor oF enginEeRing aT the UNiVERsitY of ILLInoiS, TesTIfIeD thaT iN such an eXplOSIoN THIngs Are SO DiSRuPtEd thAT IT cANNOt BE ASCErTAINED With CErTAInTY WHat HAPpeneD, BUT thAT iT WAS NeCeSSaRY to drAW dedUcTionS. FrOm The rEcord it aPPearS THat a VArIETY OF FaCtOrS inDucING The exPlOSiOn maY HAVE eXisteD. tHEre IS, OF COuRse, The cONTRAdICtory naTUre of tHE TesTiMONY aS TO wheTHEr Or NOt tHe moTorIzed mAIn vALVe wAS clOSED Or oPEN, whETher OR NoT sLaG fROM weldInG hAD loDgeD in THe mAiN VALvE So tHat it Was nOt complEtelY cLOsEd, And WHEtHER SUCh SlaG WOulD bE suFfICiENt To HOLd THe vaLVE OpEN WItH the PResSUREs coNCeRnED wiThoUt DIsTOrtinG tHE VaLvE sTEm, WhicH aPPAreNTly WaS In nOrmaL COnDItion. There iS	75 Ill.App.2d 144 (1966)220 N.E.2d 590 Decatur and Macon County Hospital Association,a Corporation Not ForProfit of Illinois, for the Use of NiagaraFire Insurance Company, Phoenix Assurance Company, Standard FireInsurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire InsuranceCompany, and MerchantsFire Assurance Corporation, Plaintiff-Appellee, v.Erie City IronWorks, a ForeignCorporation, T.A.Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants,Erie City Iron Works, a Foreign Corporation, Defendant-Appellant. Gen. No. 10,679. Illinois Appellate Court Fourth District. September 26, 1966. Rehearing denied October 24, 1966. 145 146 Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler,of counsel), for appellant. Giffin, Winning, Lindner & Newkirk, ofSpringfield(James M. Drake, of counsel), for appellee. TRAPP, P.J. Defendant ErieCity IronWorks, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Otherdisposition has been made as to the case against the latter and we consider only the appeal of Erie. Plaintiff's action was for propertydamage inthe approximate amount of the judgment incurred as the result ofthe explosion of a gas-firedboilermanufactured by Erieand installed by Brinkoetter. At thetime of the explosion installation had justbeen completed and was atthe stage of the initial start-up and adjustment ofthe boiler. Titleto it had not yet passed to the plaintiff. The defendant's theory is thatdefendant wasnot guiltyof the negligence that was the proximatecause of plaintiff's damages; that the court should have directed a verdict in favor ofthis defendant, or granted defendant's post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because oferror committed by thecourt in submitting, to the jury, bothCount I and Count II of plaintiff's complaint, which respectivelywere predicated upon a res ipsa loquitur theory and specificnegligence theory; that there waserror bythe court in denying defendant's motion for mistrial becauseof prejudicial conduct of counsel;that conduct of 147 a juror was prejudicial to defendant; and that therewas errorby the court in giving certain instructions to the jury; and other errorshereinafter discussed. Plaintiff purchased the boiler as a "package" boiler fabricated by Erie at its plantand shipped assembled for installation as a complete unit with automatic firing controls built on. Thefire control unitandthe main motorized valve were not manufactured by Erie but werepurchased by it and affixed to the fabricatedboiler. The Brinkoetter contractcalled for it to install the boiler and connect it to the line bringing gasinto the building.Inmaking theinstallation, Brinkoetter did not install what has been called a "dirtleg," i.e., a trap consistingof a length ofpipe extending beyond the point where averticalgas line is turned so thatittravels horizontally. Its functionis to catch condensed moisture and debris inthe gas line. Plaintiff had retained consulting engineers to design and superviseinstallation of the boiler. The schematicdrawing provided by the engineer did notshow a "dirt leg."The latter testified that the contractorshould install a "dirtleg" whether drawn in theplans or not. Officersof Brinkoetter say that it puts indirt legs when the plans call for them, otherwise itdoes not. Neitherthe fabricatedboiler nor theconnecting line, as installed, included a "strainer," whichis described as adistinctive appearing section of pipe containing a screen, the function of which is tocatch debris which might be carried through the line bythe flow of gas. When used, it is installed in the line ahead ofthe valves and controls. A brochure of the valve manufacturer recommendedthat astrainerbe placed ahead of themainvalve. Such a strainer was not included in the unitfabricated by Erie. The consulting engineer's schematic drawing did not include a strainer. He testified thathe would have included itif he had knownthat a strainer was recommended. An officer of Brinkoettertestified that he had neverheard 148 of a strainer in a gasline. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knockloose the scale andclean the connecting pipe. It appears that the installation was nearly completed when the contractor wasadvised by the gas company foreman that it would be necessary to install a regulator, i.e., a device which lowered the pressure from the 35-poundpressurein the main to some 10 pounds as specified by the boiler.A used regulator wasavailableat the hospital and was installed. At first it did not function, but after some adjustment wasobserved to be reducing the pressure.It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut thegas line with a torchand weld on asection of pipe. Itdoes not appear what, if anything, was done to inspect for and remove debris in the pipe following thisoperation.There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason ofthiswork.Underthe terms of its contract with Erie,plaintiff electedto have the services ofastart-up engineer. Upon notificationof the completion ofthe installation such engineer, one Enders, was sent by Erie. The explosion inissue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours andthenshutdown, and thaton the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as theresultof injuries sustained. With regard to the things done during this period, one Binns, a member ofthe hospital maintenance staff, testified that Enders started the boileroperation, handled the controlsand made adjustments, and that immediately prior to the explosionEnders was making an adjustmentof the waterlevel in the boiler. Charles Fearn,foreman 149 of thegas distribution crew of the utility company which was workingon the exteriorgas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going to test the boiler on high fire, asking Fearnto time themeter outside so that there could be a measurementof the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this wouldbe done. Following the explosion,aState boiler inspector, and representatives of the interested parties,together with engineersand experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Severalof themtestified that they had noticed the absence of thedirt leg and the screen in the gas line connected to the boiler. The main valvewas examined as to its external indicator and the testimonyvaries from the statement that it was apparently closed, throughslightly open to one-third open. Theboilerinspectortestified that he assumedthat it was open.It does not appearthat any organized procedure wasfollowedso that each expert present observed allofthe matters testified to. The main valve was then disassembled. Most witnessestestified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of thevalve. There is testimony that upon examination ofthe several partsof the valve, a resilient neopreneseal wasobserved to be indented and that the stainless steelseat of the valve was scored to a depthof 1/16thof an inch or so, the widthof the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear thattestswere made to determine whetherthe indentations on the neoprene seal coincided with thescoringof the valve seat. At the trial the neoprene seal no longer bore any indentation. 150 This was explained as being due to the resilient nature of the substance.The steel valve seat was not produced at the trial. Theconsensus of the testimony is that there was a gas explosion followedby an explosion of the boiler itself. The opinion testimony is that the firstexplosion resultedfrom the ignition of a surplus of gaswithin thecombustion chamber, which gas was somehow ignited.Paul Wilson, an employe ofErie in charge of their service department, testified thathe did not believe it possible to find the actual causeof the majorityof explosion cases, and George Harper, aprofessor of engineering at the University of Illinois, testified that in such an explosion things areso disrupted that it cannot be ascertained with certainty what happened, but that itwas necessary to draw deductions. From the record it appearsthat a variety offactors inducing the explosion may have existed. There is, of course,the contradictory natureof thetestimony as to whetheror not the motorized main valve was closedor open, whether or not slag from welding had lodged in the main valve sothat it wasnot completely closed, and whether such slag would be sufficient to hold the valve open withthe pressures concernedwithoutdistortingthe valve stem, whichapparently was in normal condition. There is	75 Ill. _App.2d_ 144 (1966) 220 N.E.2d 590 _Decatur_ and Macon County Hospital _Association,_ _a_ Corporation Not For Profit of _Illinois,_ for the Use of Niagara _Fire_ _Insurance_ Company, _Phoenix_ Assurance Company, Standard _Fire_ Insurance Company, Rochester American Insurance Company, American Insurance Company, _United_ States Fire Insurance _Company,_ Hartford Fire _Insurance_ Company, and _Merchants_ Fire Assurance _Corporation,_ Plaintiff-Appellee, _v._ Erie City Iron Works, a Foreign Corporation, T.A. Brinkoetter & Sons, Inc., a Foreign Corporation, and _Illinois_ _Power_ Company, an Illinois Corporation, Defendants, Erie City _Iron_ Works, a Foreign Corporation, Defendant-Appellant. Gen. _No._ 10,679. Illinois Appellate _Court_ Fourth District. _September_ 26, 1966. Rehearing denied October 24, 1966. _145_ _146_ Earl S. Hodges, of Springfield, and Greanias & _Owen,_ of Decatur _(Marshall_ A. Susler, _of_ counsel), _for_ appellant. Giffin, _Winning,_ Lindner & Newkirk, of Springfield _(James_ M. Drake, of _counsel),_ for appellee. TRAPP, P.J. Defendant Erie City Iron Works, hereinafter designated Erie, appeals from _a_ judgment _in_ _the_ sum of $30,818.50 entered in favor _of_ the plaintiff upon the _verdict_ of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and _we_ consider only the appeal of _Erie._ Plaintiff's action _was_ for property damage in the _approximate_ _amount_ _of_ _the_ judgment incurred as _the_ result of the explosion of _a_ gas-fired boiler manufactured by Erie _and_ installed by Brinkoetter. _At_ the time _of_ the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title _to_ it had not yet passed to the plaintiff. The defendant's theory is that defendant was not guilty of the negligence that was _the_ proximate cause _of_ plaintiff's damages; that _the_ court should have _directed_ a verdict in favor of this _defendant,_ _or_ granted _defendant's_ post-trial motion for _judgment_ notwithstanding the verdict of the jury or, in the _alternative,_ should _have_ granted defendant a new trial of the issues, because _of_ error committed by the court in submitting, to the jury, both Count _I_ and Count II of plaintiff's complaint, which _respectively_ were predicated upon a res ipsa _loquitur_ _theory_ and specific _negligence_ theory; that there was error by _the_ court in denying _defendant's_ _motion_ for mistrial because of prejudicial _conduct_ of counsel; that conduct of 147 a juror was prejudicial to _defendant;_ and that _there_ was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed. _Plaintiff_ purchased the boiler as a "package" _boiler_ _fabricated_ by Erie at its plant and shipped assembled for installation as _a_ complete unit with automatic firing controls built on. The _fire_ _control_ _unit_ and the _main_ motorized valve were not manufactured by Erie but were _purchased_ by it and _affixed_ to _the_ fabricated boiler. The Brinkoetter contract called _for_ it to install the _boiler_ _and_ connect it to _the_ line _bringing_ gas into the building. In making _the_ installation, Brinkoetter _did_ not _install_ _what_ has been called a "dirt leg," i.e., a trap consisting of _a_ length of pipe extending beyond the point where _a_ vertical gas line is turned so that it _travels_ horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff _had_ retained consulting engineers to _design_ _and_ supervise installation of the boiler. The schematic drawing provided _by_ the engineer _did_ _not_ show a "dirt leg." _The_ latter testified _that_ the contractor should install _a_ "dirt leg" whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when _the_ _plans_ call for them, otherwise it does not. _Neither_ the fabricated boiler nor _the_ connecting line, as installed, _included_ a "strainer," which is described as a _distinctive_ appearing section _of_ pipe containing a _screen,_ the function of which is to _catch_ debris which _might_ _be_ _carried_ _through_ _the_ line _by_ the flow _of_ gas. When used, it is installed _in_ the line _ahead_ of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such _a_ strainer _was_ not included in the unit fabricated by Erie. _The_ consulting engineer's schematic drawing did not _include_ a strainer. He _testified_ that he _would_ _have_ _included_ _it_ if _he_ had known _that_ _a_ strainer _was_ _recommended._ An officer of Brinkoetter _testified_ that he had never heard 148 of a strainer in _a_ gas line. In behalf of the latter, _its_ foreman and employes _testified_ that as the gas line was _being_ installed, steps were taken to knock loose _the_ scale and clean the connecting pipe. It _appears_ _that_ the installation was nearly completed when _the_ contractor was advised by _the_ gas company foreman that it would be necessary _to_ install a _regulator,_ i.e., a device which _lowered_ the pressure from the _35-pound_ pressure in the main to some 10 pounds _as_ _specified_ by the boiler. _A_ used regulator _was_ available _at_ the _hospital_ and was installed. At first it did not function, but after some adjustment was _observed_ to be reducing _the_ pressure. It _was_ not _tested_ after the explosion. In installing the regulator _at_ this time, _it_ was necessary _to_ cut _the_ gas line with a torch and weld _on_ a section of pipe. It _does_ not appear what, if anything, was done to inspect for and remove debris in the _pipe_ following this _operation._ There _is_ some conflict in _the_ evidence as _to_ whether or not welding slag would enter the pipe _by_ reason _of_ this work. Under the terms of its contract with Erie, plaintiff elected to have the services _of_ a _start-up_ engineer. _Upon_ notification of the completion of the installation such engineer, one Enders, was _sent_ by _Erie._ The explosion in issue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had _arrived_ on the preceding Tuesday, that the boiler _was_ started up _and_ fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for _some_ 2 _hours_ preceding the explosion. Enders _died_ _following_ _the_ _explosion,_ apparently as the result _of_ injuries sustained. With regard to the things done during this period, _one_ Binns, a member of _the_ hospital maintenance staff, _testified_ that Enders _started_ the boiler _operation,_ handled the _controls_ _and_ _made_ _adjustments,_ and that immediately _prior_ _to_ the explosion Enders was making an adjustment of the water level in the boiler. Charles _Fearn,_ foreman 149 of the _gas_ distribution crew of the _utility_ company which was working _on_ the exterior gas line, testified that _he_ had been in the _boiler_ room _during_ the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going _to_ test the _boiler_ on high fire, asking Fearn to time the meter outside so that there could _be_ a measurement of the cubic feet of gas _entering_ the boiler _on_ high fire. No _specific_ arrangement was made as _to_ when this would be done. Following the explosion, _a_ State _boiler_ inspector, and representatives of _the_ interested parties, together with engineers _and_ _experts_ retained by _them,_ assembled _at_ the scene to examine the _boiler_ which had been kept undisturbed. Several of them testified that they _had_ noticed _the_ absence of the _dirt_ leg and the screen in the _gas_ _line_ _connected_ _to_ _the_ boiler. The main valve _was_ examined _as_ to its external indicator and the testimony varies from _the_ statement that it was apparently closed, through slightly _open_ to one-third open. The _boiler_ inspector _testified_ that he assumed that it was open. _It_ _does_ not appear _that_ any _organized_ procedure was _followed_ so that _each_ expert present observed all of the matters _testified_ to. _The_ main valve was _then_ disassembled. Most _witnesses_ testified to observing some scale _and_ several pieces _of_ _welding_ slag on both the upstream and downstream sides _of_ the valve. There is testimony that upon examination of the several parts _of_ the valve, a _resilient_ _neoprene_ seal was observed to _be_ _indented_ _and_ that the stainless steel seat of the valve was _scored_ to _a_ depth of 1/16th of an inch or so, the width of _the_ indentation _being_ that of a _blade_ of a table knife. There is other testimony that the _seat_ _bore_ only normal scratches. It does not appear _that_ _tests_ were made to determine whether _the_ indentations on _the_ neoprene _seal_ _coincided_ with the scoring of the valve seat. _At_ the trial the neoprene seal no longer bore any indentation. _150_ This _was_ explained as being _due_ to the resilient _nature_ of the substance. _The_ steel valve seat was not produced at _the_ _trial._ The consensus of the testimony _is_ that there was a gas explosion _followed_ _by_ an explosion of the boiler itself. The _opinion_ testimony is that the first _explosion_ _resulted_ from the ignition of a surplus of gas within the combustion _chamber,_ _which_ _gas_ was somehow ignited. Paul Wilson, an employe of Erie _in_ charge of their service department, testified that he did not believe _it_ possible to find the actual cause of the _majority_ of explosion cases, _and_ George Harper, a professor of engineering at _the_ _University_ of Illinois, testified that in _such_ an explosion things are _so_ disrupted that it cannot be ascertained with certainty _what_ _happened,_ _but_ that it was necessary to draw deductions. From the record it _appears_ that _a_ _variety_ of _factors_ inducing the explosion may _have_ existed. There is, of course, the _contradictory_ nature of the testimony _as_ _to_ whether or not _the_ motorized main valve was closed or open, whether or not slag from welding had _lodged_ in the main valve so that it _was_ not completely _closed,_ and _whether_ such slag would be sufficient to hold _the_ valve open with the _pressures_ concerned _without_ distorting _the_ valve stem, which apparently was in _normal_ condition. There is
994 A.2d 1040 (2010) 202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey. May 19, 2010. Petition for Certification Denied.	994 a. l 1040 ( 2010 ) 202 n. j. 43 state v. mccary. supreme court of old brunswick. may 19, 2010. petition for bankruptcy denied.	994 A. 2d q0r0 (w0q0) 202 N. J. 43 STWTD v. MxCAdY. Sup%dme CoHrG of New Jersey. May 19, Q0w0. (etigion for Certjtication DeHieW.	994 A.2d 1040 202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey. 19, 2010. Petition for Certification Denied.	994 a.2d 1040 (2010) 202 N.j. 43 StATe V. mcCaRy. supREME cOurT oF NEw JerSey. mAY 19, 2010. PEtITiON FOr certifIcAtIoN dENieD.	994 A.2d 1040 (2010)202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey.May 19, 2010. Petition for Certification Denied.	994 A.2d 1040 (2010) 202 N.J. 43 STATE v. McCARY. Supreme Court of _New_ Jersey. May 19, 2010. Petition for _Certification_ _Denied._
MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 335, 2008 Supreme Court of Delaware. Submitted: January 28, 2009. Decided: March 4, 2009. Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices. ORDER JACK B. JACOBS, Justice. This 4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that: 1. Marvin Burton, the defendant below, appeals from the denial by the Superior Court of a Rule 61 motion for post-conviction relief. On appeal, Burton argues that the trial court erroneously denied that motion which was based, in part, on a claim of ineffective assistance of counsel. Given the serious nature of the charges, the fact that Burton's Rule 61 motion was filed pro se, and that the alleged new evidence has not yet been considered by the Superior Court, we remand for further proceedings limited to Burton's ineffective assistance of counsel claim. 2. Burton was arrested on October 6, 2004, and indicted on October 25, 2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton's daughter, the alleged victim, who was eleven years old at the relevant times, claimed that on at least three occasions Burton had sexually abused and raped her. All three incidents allegedly occurred while the victim was staying at Burton's parents' house in 2004, with the two most serious incidents allegedly occurring in August 2004. Trial began on August 8, 2005. On August 11, 2005 Burton was convicted on all charges. 3. Because of prior convictions for Third Degree Burglary and Third Degree Unlawful Sexual Intercourse, the State moved to declare Burton an habitual offender under 11 Del. C. § 4214.[1] On October 28, 2005, the Superior Court declared Burton an habitual offender and sentenced him to life in prison for each of the two Rape charges, plus two additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Court also imposed special conditions, including a no contact order and sex offender registration. 4. After sentencing, defense counsel filed a notice of appeal on Burton's behalf and a motion to withdraw pursuant to Supreme Court Rule 26(c). The State filed a motion to affirm. After reviewing the record, this Court determined that Burton's appeal was "wholly without merit and devoid of any arguably appealable issue" and granted the motion to affirm.[2] 5. On August 16, 2007 Burton moved pro se for post-conviction relief, raising multiple claims including ineffective assistance of counsel.[3] Burton alleged that his trial counsel was incompetent, failed to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 4, 2007, trial counsel filed a sworn letter memorandum responding to that motion. Trial counsel explained that he did not mislead Burton or refuse to allow him to testify. Rather, he advised Burton not to take the stand for the strategic purpose of avoiding cross-examination on Burton's prior convictions. After receiving that advice, Burton agreed and chose not to testify. Trial counsel further explained that he did, in fact, contact most of the witnesses Burton claimed were not interviewed or subpoenaed, and found that those witnesses either could not provide the testimony Burton claimed, or that they had no information helpful to Burton's defense. 6. On June 3, 2008, the Superior Court denied Burton's motion without a hearing, finding that Burton's arguments were all without merit.[4] On June 30, Burton filed a notice of appeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf. 7. Although Burton advanced numerous claims of error in his motion for post-conviction relief, on appeal he advances only onethat the Superior Court erred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claim to the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow Burton to testify at trial.[5] 8. The State has moved to strike certain affidavits and information included in Burton's appendix that were not part of the record on appeal. These affidavits include: (i) a statement by Marvin Burton, Sr. "that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim . . . did not live in our residence from late July through September 2004"; and (ii) a statement by Stacie Brittingham (Burton's sister) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live in her parent's residence from late July through September 2004 and that that issue was not raised in questioning during her testimony at trial. Also included was a statement by Eric Morris that (i) "he was not contacted, interviewed or called as a witness concerning the fact that the alleged victim . . . did not live at Marvin Burton, Sr. and Vivian Burton's residence from late July through September 2004;" and that (ii) "I would also have testified that [the alleged victim] lived with me approximately 3 weeks during the end of July and August 2004 and she stayed with other individuals until the month of September 2004. . . ." 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances that were not fairly presented to the trial court,[6] and we will not consider such supplemental affidavits. For new evidence to be considered, a party should file a motion to remand to the trial court to determine the facts in light of their new evidence.[7] Here, however, Burton moved for post-conviction relief pro se, without the evidence having been considered by the Superior Court. In such circumstances, some leeway should be granted if, in the interests of justice, the new evidence ought to be considered.[8] For that purpose a remand is appropriate. NOW, THEREFORE, IT IS ORDERED that this matter is remanded to the Superior Court for further proceedings limited to the ineffective assistance of counsel claim. Jurisdiction is not retained. NOTES [1] See generally 11 Del. C. § 4214 (providing for sentencing as an habitual criminal). [2] Burton v. State, 907 A.2d 145, 2006 WL 2434914, at 1 (Del. 2006) (Table). [3] Burton claimed that: (1) the indictment was illegal; (2) a Batson violation had occurred; (3) a juror had misled the Superior Court during voir dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to testify; (6) Burton was not allowed to call witnesses; (7) prosecutorial misconduct occurred; (8) his sentence was illegal; (9) his trial counsel was ineffective; and (10) his trial counsel failed to interview and call material witnesses. See State v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3, 2008). [4] See State v. Burton, 2008 WL 2359717, at 1-6. [5] "Appellant's counsel has reviewed all of the allegations set forth in the Rule 61 Motion and is limiting argument in this opening brief to the fact that [trial counsel] was ineffective by failing to contact, properly interview and subpoena material witnesses for the disputed allegations made by the alleged victim as well as allowing the Appellant to testify during his trial." [6] Sup. Ct. R. 8; Merritt v. State, 219 A.2d 258, 260 (Del. 1966); Draper v. State, 146 A.2d 796, 800 (Del. 1958); see also Gateley v. Gateley, 832 A.2d 1251, 2003 WL 22282584, at *2 n.7 (Del. Oct. 1, 2003) (Table) (declining to review documents presented for the first time on appeal). [7] Compare Merritt, 219 A.2d at 260 (remanding the case with authority and instructions to ascertain the facts) with Draper, 146 A.2d at 800 (refusing to consider new evidence on appeal). [8] See Yancey v. Nat'l Trust Co., Ltd., 712 A.2d 476, 1998 WL 309819 (Del. May 19, 1998) (Table) (Del. 1998) (noting that some degree of leniency should be granted for pro se appeals); see also In re Estate of Hall, 882 A.2d 761, 2005 WL 2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro se litigants some leeway).	marvin t. burton, jr. defendant below, appellant, v. state of delaware, plaintiff below, appellee. no. 335, 2008 supreme court of delaware. submitted : january 28, 2009. decided : march 4, 2009. before steele, chief justice, jacobs and ridgely, justices. order jack b. jacobs, det. this 4th day of march 2009, upon consideration of the briefs of the parties and the record in this case, it appears to the court that : 1. marvin burton, the defendant below, appeals from the denial by the superior court filed a rule 61 motion for post - conviction relief. on appeal, burton argues that superior trial court ultimately denied that motion which was based, in part, on a claim of ineffective assistance of counsel. given the serious nature of the charges, the fact that burton ' s rule 61 motion had filed pro se, and that the alleged new evidence has not yet been considered by the superior court, we remand for further proceedings limited to burton ' s ineffective assistance of counsel claim. 2. burton was arrested on october 6, 2004, and indicted on october 25, 2004 on charges of first degree rape, second degree rape and second degree unlawful sexual contact. burton ' s daughter, the alleged victim, who was eleven years old at the same times, claimed that on three least three occasions burton had sexually abused and raped her. all three incidents allegedly occurred while the victim was staying at burton ' s parents ' house in 2004, with the two most serious incidents allegedly occurring in august 2004. trial began on august 8, 2005. • august 11, 2005 burton was convicted on all charges. 3. because of prior convictions for third degree burglary and third degree unlawful sexual intercourse, the state moved to declare burton an habitual offender under 11 del. c. § 4214. [ 1 ] on october 28, 2005, the superior court declared burton an habitual offender and sentenced him to life in prison for each of the two rape charges, plus two additional years imprisonment for the unlawful sexual contact charge. the superior court also imposed specific conditions, including a no contact order and sex offender registration. 4. after sentencing, defense counsel filed a notice of appeal from burton ' s behalf and a motion to withdraw pursuant to supreme court rule 26 ( c ). the state filed a motion to affirm. after reviewing the record, this court determined that burton ' s appeal was " wholly without merit and devoid of any arguably appealable issue " and granted the motion to affirm. [ 2 ] 5. on august 16, 2007 burton moved pro se for post - conviction relief, raising multiple claims including ineffective assistance of counsel. [ 3 ] burton alleged that his trial counsel was incompetent, failed to interview and subpoena key defense witnesses, and did not allow burton to testify. on september 4, 2007, trial counsel filed a sworn letter memorandum responding to that motion. trial counsel explained that he did not mislead burton or refuse to allow him to testify. rather, he advised burton not to take the stand for the strategic purpose of avoiding cross - examination on burton ' s prior convictions. after receiving that advice, burton agreed and chose not to testify. trial counsel further explained that he did, in fact, contact most of the witnesses burton claimed were not interviewed or subpoenaed, and found that those witnesses either could not provide the testimony burton claimed, or that they had no information helpful to burton ' s defense. 6. on june 3, 2008, the superior court denied burton ' s motion without a hearing, finding that burton ' s arguments were all without merit. [ 4 ] on june 30, burton filed a notice of appeal, pro se, and on august 14, appellate counsel entered an appearance on his behalf. 7. although burton advanced numerous claims of error in his motion for post - conviction relief, on appeal he advances only onethat the superior court erred by denying his claim of ineffective assistance of counsel. moreover, burton limits that claim to the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow burton to testify at trial. [ 5 ] 8. the state has moved to strike certain affidavits and information included in burton ' s appendix that were not part of the record on appeal. these affidavits include : ( i ) a statement by marvin burton, sr. " that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim... did not live in our residence from late july through september 2004 " ; and ( ii ) a statement by stacie brittingham ( burton ' s sister ) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live in her parent ' s residence from late july through september 2004 and that that issue was not raised in questioning during her testimony at trial. also included was a statement by eric morris that ( i ) " he was not contacted, interviewed or called as a witness concerning the fact that the alleged victim... did not live at marvin burton, sr. and vivian burton ' s residence from late july through september 2004 ; " and that ( ii ) " i would also have testified that [ the alleged victim ] lived with me approximately 3 weeks during the end of july and august 2004 and she stayed with other individuals until the month of september 2004.... " 9. as a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances that were not fairly presented to the trial court, [ 6 ] and we will not consider such supplemental affidavits. for new evidence to be considered, a party should file a motion to remand to the trial court to determine the facts in light of their new evidence. [ 7 ] here, however, burton moved for post - conviction relief pro se, without the evidence having been considered by the superior court. in such circumstances, some leeway should be granted if, in the interests of justice, the new evidence ought to be considered. [ 8 ] for that purpose a remand is appropriate. now, therefore, it is ordered that this matter is remanded to the superior court for further proceedings limited to the ineffective assistance of counsel claim. jurisdiction is not retained. notes [ 1 ] see generally 11 del. c. § 4214 ( providing for sentencing as an habitual criminal ). [ 2 ] burton v. state, 907 a. 2d 145, 2006 wl 2434914, at * 1 ( del. 2006 ) ( table ). [ 3 ] burton claimed that : ( 1 ) the indictment was illegal ; ( 2 ) a batson violation had occurred ; ( 3 ) a juror had misled the superior court during voir dire ; ( 4 ) a juror drank alcohol during the trial ; ( 5 ) burton was not allowed to testify ; ( 6 ) burton was not allowed to call witnesses ; ( 7 ) prosecutorial misconduct occurred ; ( 8 ) his sentence was illegal ; ( 9 ) his trial counsel was ineffective ; and ( 10 ) his trial counsel failed to interview and call material witnesses. see state v. burton, 2008 wl 2359717 ( del. super. ct. june 3, 2008 ). [ 4 ] see state v. burton, 2008 wl 2359717, at * 1 - 6. [ 5 ] " appellant ' s counsel has reviewed all of the allegations set forth in the rule 61 motion and is limiting argument in this opening brief to the fact that [ trial counsel ] was ineffective by failing to contact, properly interview and subpoena material witnesses for the disputed allegations made by the alleged victim as well as allowing the appellant to testify during his trial. " [ 6 ] sup. ct. r. 8 ; merritt v. state, 219 a. 2d 258, 260 ( del. 1966 ) ; draper v. state, 146 a. 2d 796, 800 ( del. 1958 ) ; see also gateley v. gateley, 832 a. 2d 1251, 2003 wl 22282584, at * 2 n. 7 ( del. oct. 1, 2003 ) ( table ) ( declining to review documents presented for the first time on appeal ). [ 7 ] compare merritt, 219 a. 2d at 260 ( remanding the case with authority and instructions to ascertain the facts ) with draper, 146 a. 2d at 800 ( refusing to consider new evidence on appeal ). [ 8 ] see yancey v. nat ' l trust co., ltd., 712 a. 2d 476, 1998 wl 309819 ( del. may 19, 1998 ) ( table ) ( del. 1998 ) ( noting that some degree of leniency should be granted for pro se appeals ) ; see also in re estate of hall, 882 a. 2d 761, 2005 wl 2473791 ( del. aug. 26, 2005 ) ( table ) ( noting that we allow pro se litigants some leeway ).	MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 335, 2008 Supreme Court of Delaware. Submitted: January 28, 2009. Decided: March 4, 2009. Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices. ORDER JACK B. JACOBS, Justice. This 4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that: 1. Marvin Burton, the defendant below, appeals from the denial by the Superior Court of a Rule 61 motion for post - conviction relief. On appeal, Burton argues that the trial court erroneously denied that motion which was based, in ps#t, on a claim of ineffective assistance of counsel. Given the serious nature of the charges, the fact that Burton ' s Rule 61 motion was filed pro se, and that the alleged new evidence has not yet been considered by the Superior Court, we remand for further proceedings limited to Burton ' s ineffective assistance of counsel claim. 2. gurRon was arrested on OcRoNer 6, 2004, and indicted on October 25, 2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton ' s daughter, the alleged victim, who was eleven years old at the relevant times, claimed that on at least three occasions Burton had sexually abused and raped her. All three incidents allegedly occurred while the victim was staying at Burton ' s parents ' house in 2004, with the two most serious incidents allegedly occurring in August 2004. Trial began on August 8, 2005. On August 11, 2005 Burton was convicted on all charges. 3. Because of prior convictions for Third Degree Burglary and Third Degree Unlawful Sexual Intercourse, the State moved to declare Burton an habitual offender under 11 Del. C. § 4214. [1] On October 28, 2005, the Superior Court declared Burton an habitual offender and sentenced him to life in prison for each of the two Rape charges, plus two additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Court also imposed sp$dial conditions, including a no contact order and sex offender registration. 4. After sentencing, defense counsel filed a notice of apLsal on Burton ' s behalf and a motion to withdraw pursuant to Supreme Court Rule 26 (c ). The State filed a motion to affirm. After reviewing the record, this Court determined that Burton ' s appeal was " wholly withug merit and devoid of any arguably appealable issue " and granted the motion to affirm. [2] 5. On August 16, 2007 Burton moved pro se for post - conviction relief, raising multiple claims including ineffective assistance of counsel. [3] Burton alleged that his trial counsel was incompetent, failed to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 4, 2007, trial counsel filed a sworn letter memorandum responding to that motion. Trial counsel explained that he did not mislead Burton or refuse to allow him to testify. Rather, he advised Burton not to take the stand for the strategic purpose of avoiding cross - examination on Burton ' s prior convictions. After receiving that advice, Burton agreed and chose not to testify. Trial counsel further explained that he did, in fact, contact most of the witnesses Burton claimed were not interviewed or subpoenaed, and found that those witnesses either could not provide the testimony Burton claimed, or that they had no information helpful to Burton ' s defense. 6. On June 3, 2008, the Superior Court denied Burton ' s motion without a hearing, finding that Burton ' s arguments were all without merit. [4] On June 30, Burton filed a notice of appeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf. 7. Although Burton advanced numerous claims of error in his motion for post - conviction relief, on appeal he advances only one that the Superior Court erred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claim to the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow Burton to testify at trial. [5] 8. The State has moved to strike certain affidavits and information included in Burton ' s appendix that were not part of the record on appeal. These affidavits include: (i) a statement by Marvin Burton, Sr. " that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim. .. did not live in our residence from late July tmrogh September 2004 "; and (ii) a statement by Stacie Brittingham (Burton ' s sister) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live in her parent ' s residence from late July through September 2004 and that that issue was not raised in questioning during her testimony at trial. Also included was a statement by Eric Morris that (i) " he was not contacted, interviewed or called as a witness concerning the fact that the alleged victim. .. did not live at Marvin Burton, Sr. and Vivian Burton ' s residence from late July through September 2004; " and tJa5 (ii) " I would also have testified that [the alleged victim] lived with me approximately 3 weeks during the end of July and August 2004 and she stayed with other individuals until the month of September 2004. .. . " 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances that were not fairly presented to the trial court, [6] and we will not consider such supplemental affidavits. For new evidence to be considered, a party should file a motion to remand to the trial court to determine the facts in light of their new evidence. [7] Here, however, Burton moved for post - conviction relief pro se, without the evidence having been considered by the Superior Court. In such circumstances, some leeway should be granted if, in the interests of justice, the new evidence ought to be considered. [8] For thq5 purpose a remand is appropriate. NOW, THEREFORE, IT IS ORDERED that this matter is remanded to the Superior Court for further proceedings limited to the ineffective assistance of counsel claim. Jurisdiction is not retained. NOTES [1] See generally 11 Del. C. § 4214 (providing for sentencing as an habitual criminal ). [2] Burton v. State, 907 A. 2d 145, 2006 WL 2434914, at * 1 (Del. 2006) (Table ). [3] Burton claimed that: (1) the indictment was illegal; (2) a Batson violation had occurred; (3) a juror had misled the Superior Court during voir dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to testify; (6) Burton was not allowed to call witnesses; (7) prosecutorial misconduct occurred; (8) his sentence was illegal; (9) his trial counsel was ineffective; and (10) his trial counsel failed to interview and call material witnesses. See State v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3, 2008 ). [4] See State v. Burton, 2008 WL 2359717, at * 1 - 6. [5] " Appellant ' s counsel has reviewed all of the allegations set forth in the Rule 61 Motion and is limiting argument in this opening brief to the fact that [trial counsel] was ineffective by failing to contact, properly interview and subpoena material witnesses for the disputed allegations made by the alleged victim as well as allowing the Appellant to testify during his trial. " [6] Sup. Ct. R. 8; Merritt v. State, 219 A. 2d 258, 260 (Del. 1966 ); Draper v. State, 146 A. 2d 796, 800 (Del. 1958 ); see also Gateley v. Gateley, 832 A. 2d 1251, 2003 WL 22282584, at * 2 n. 7 (Del. Oct. 1, 2003) (Table) (declining to review documents presented for the first time on appeal ). [7] Compare Merritt, 219 A. 2d at 260 (remanding the case with authority and instructions to ascertain the facts) with Draper, 146 A. 2d at 800 (refusing to consider new evidence on appeal ). [8] See Yancey v. Nat ' l Trust Co. , Ltd. , 712 A. 2d 476, 1998 WL 309819 (Del. May 19, 1998) (Table) (Del. 1998) (noting that some degree of leniency should be granted for pro se appeals ); see also In re Estxye of Hall, 882 A. 2d 761, 2005 WL 2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro se litigants some leeway ).	MARVIN JR. Defendant Below, Appellant, v. STATE OF Plaintiff Below, Appellee. No. 335, 2008 Supreme Court of Delaware. Submitted: January 28, 2009. Decided: March 4, 2009. Before STEELE, Chief Justice, JACOBS RIDGELY, Justices. ORDER JACK B. JACOBS, Justice. This 4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, it appears to Court that: 1. Marvin Burton, defendant below, appeals the denial by the Superior Court of a Rule 61 motion for post-conviction relief. On appeal, Burton argues that the trial court erroneously denied that motion which was based, in part, on a claim of ineffective assistance of counsel. Given serious nature of the charges, the fact that Burton's Rule motion was filed pro se, and that the alleged new evidence has not yet been considered by the Court, we remand for further proceedings limited Burton's ineffective assistance of counsel 2. Burton was arrested on October 6, and indicted October 25, 2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton's daughter, the alleged victim, who eleven years old at the relevant times, claimed that on at least three occasions Burton had sexually abused and raped her. All three incidents allegedly occurred while the victim was staying at Burton's parents' house in 2004, the two most serious incidents allegedly occurring in August 2004. began on 8, 2005. On August 11, 2005 Burton was convicted on all charges. 3. Because of prior convictions for Degree Burglary and Third Degree Unlawful Sexual Intercourse, the State moved to declare Burton an habitual under 11 Del. C. § 4214.[1] On October 28, 2005, the Superior Court declared Burton an habitual offender sentenced him to life in prison for each of the two Rape charges, plus additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Court also imposed special conditions, including a no contact order and sex offender registration. 4. After sentencing, defense counsel filed a notice of appeal on Burton's behalf and motion to withdraw pursuant to Supreme Court Rule The State a motion to affirm. After reviewing the record, Court determined that Burton's appeal was "wholly without merit and devoid of any arguably appealable issue" and granted the to affirm.[2] 5. On August 16, 2007 Burton pro se for post-conviction relief, multiple claims including ineffective of counsel.[3] Burton alleged that his trial counsel incompetent, failed to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 2007, trial counsel filed a sworn letter responding to that motion. Trial counsel explained that he did not mislead Burton or refuse to allow him testify. Rather, advised Burton not to take the stand for the strategic purpose of avoiding cross-examination on Burton's prior After receiving that advice, Burton agreed and not to testify. Trial counsel further explained he did, in fact, contact most of the Burton claimed were not interviewed subpoenaed, and found that those witnesses either not provide the testimony Burton claimed, or that had no information helpful Burton's defense. 6. On June 3, 2008, Superior Court denied Burton's motion without a hearing, finding Burton's arguments were all without merit.[4] On June 30, Burton a notice of appeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf. 7. Although Burton advanced numerous claims of error his motion for post-conviction relief, on appeal he only onethat the Superior erred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claim to the that trial counsel was ineffective by failing to contact, properly interview and material witnesses, and also by refusing to allow Burton to testify at trial.[5] 8. The State has moved to strike certain affidavits and information included Burton's appendix that were not of record on affidavits include: a by Marvin Burton, Sr. "that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim . . . did not live in our residence from late July through 2004"; (ii) a statement by Stacie Brittingham (Burton's that she was not interviewed before the day of trial her testimony, and that the alleged victim did not live in her parent's residence from late July through September and that issue was not raised questioning during her at trial. Also included was a statement by Eric Morris that (i) "he was not contacted, interviewed or called as a witness concerning fact the victim . . . did not Marvin Burton, Sr. and Vivian Burton's residence from late July September 2004;" and that (ii) "I would also testified that [the alleged victim] with me approximately 3 weeks during the end of July August 2004 and she stayed with other individuals until the month 2004. . ." 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances were not presented to the trial court,[6] we will not consider such supplemental affidavits. evidence to considered, a party should file motion to remand to the trial court to determine the in of their new evidence.[7] Here, however, Burton moved for post-conviction relief pro se, without the evidence having been considered by the Superior Court. In such circumstances, some leeway be granted if, in the interests justice, the new evidence ought to be considered.[8] For that purpose a remand is appropriate. NOW, THEREFORE, ORDERED that this matter is remanded to the Superior Court for further limited to the ineffective assistance of counsel claim. Jurisdiction is not retained. NOTES [1] See generally 11 Del. C. § 4214 (providing for sentencing as habitual criminal). [2] Burton v. State, 907 A.2d 145, 2006 WL 2434914, at 1 2006) (Table). [3] Burton that: (1) the indictment was (2) a Batson violation had occurred; (3) juror had misled the Superior Court during voir dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to testify; (6) Burton was allowed call witnesses; prosecutorial misconduct occurred; (8) his sentence was illegal; his trial counsel was ineffective; and (10) his trial counsel failed to interview and call material witnesses. See State Burton, 2008 WL 2359717 (Del. Ct. June 3, 2008). [4] See State v. Burton, 2008 2359717, at 1-6. [5] "Appellant's counsel reviewed all of the allegations set forth in the 61 Motion and is limiting in this opening brief to the fact that [trial counsel] was ineffective failing to contact, interview and subpoena material witnesses for disputed made by the alleged victim as well as allowing Appellant to his trial." [6] Sup. Ct. R. 8; Merritt v. State, 219 A.2d 258, 260 Draper v. State, 146 A.2d 796, 800 (Del. 1958); see also Gateley v. Gateley, 832 A.2d 1251, 2003 WL *2 n.7 (Del. Oct. 2003) (Table) (declining to review documents for the first time appeal). Compare Merritt, 219 A.2d at 260 (remanding the with authority and instructions ascertain the with Draper, 146 A.2d at 800 (refusing to consider new evidence appeal). See Yancey v. Nat'l Trust Co., Ltd., 712 A.2d 476, 1998 309819 (Del. May 19, (Table) (Del. 1998) (noting that some degree of should be granted for pro se appeals); see also re Estate Hall, 882 A.2d 761, 2005 WL 2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro some leeway).	MarVin T. BurTOn, jr. dEFendaNT bELoW, aPPEllanT, v. StatE Of dElAwaRE, PlAiNTIFF bElow, aPpelLee. NO. 335, 2008 SUPreme CouRT Of dELawARe. sUbmItTEd: jaNuArY 28, 2009. decided: marCH 4, 2009. BEFOre sTEeLe, cHiEF jUstIce, Jacobs ANd RidgeLy, juSTICeS. ORDEr JAck B. JaCObS, JUstIcE. THiS 4tH Day OF MArCh 2009, UPon COnsIDeratioN oF tHE BrIefS OF thE PartiEs aNd the REcoRd IN THis CaSE, It ApPeaRS To the COURT thAT: 1. MARVin BurtoN, THE DefeNDANt belOw, ApPeaLs FROM thE dENIaL By tHe sUperior CourT OF a Rule 61 MotIOn FoR pOSt-COnviCTiON ReLiEF. oN aPPeAL, bURtoN aRgUES that ThE tRiaL coUrt eRRonEoUslY dEniED tHAT MotiON WHICH WAS BASED, in PArT, oN A ClAiM of INeffeCTiVe aSsISTanCe OF COuNsEl. GIVEn the serIoUS NATUre Of the cHargEs, THE FAct tHat BUrtON's rule 61 mOTion waS FIled prO se, aNd That thE AlLeGed NeW EviDEnCE has nOT YET beEn conSideReD By tHE superiOR cOuRt, WE ReMANd FOR fURTHER prOceedings lImIteD to BUrToN'S INeFfEctIVE AssiSTance of cOUNSel ClaIm. 2. buRTON wAs ArrEsTed ON OCtobER 6, 2004, aNd iNdiCTed ON october 25, 2004 oN chargEs Of fIrst DeGreE RaPe, SEcoND degreE rAPE aND sEconD DEgReE UNLaWFuL SExUAl cONtacT. bUrTON'S dAugHTEr, THe alleGEd VICTiM, who waS ElEVeN YeArs OlD At ThE rELeVaNT TImeS, ClAImed ThAt on at LeasT ThrEe oCcASIONs BuRTON hAD SeXUally abusED and RAPed Her. alL three INcIdEnts AllegedLY oCcURRED WhILe tHe viCTiM WaS StAYIng aT BUrtoN's PaRents' hOUsE IN 2004, WiTh THe TWo mOSt seRIOUS IncIDeNTS aLLEgEdly OCCUrrInG iN AugUst 2004. triaL BegAN On AUGusT 8, 2005. oN aUgUST 11, 2005 BuRTon was ConVIcteD oN all CHaRges. 3. beCAUsE OF PriOr CoNViCtions For ThIrd DeGree burGLaRy And tHird dEgreE unLawFUL SexuAL IntERcoURsE, thE state movED TO DecLArE burTon AN HAbiTUal oFfenDEr uNDER 11 deL. c. § 4214.[1] on oCtOBEr 28, 2005, THE suPERioR couRt decLAREd BUrTon an haBItuaL oFfeNdEr And SeNtEncED him TO LIFe in prisoN FOr eACh OF the TWO rApE cHARges, plUs two ADdiTIONAL YEArs iMPRiSOnMEnt For tHe UnlawFul sExUaL coNTACT chArgE. ThE SuPERior couRT ALso impOSEd spEcIAL cOnDiTIONS, inclUdinG a NO conTacT OrDEr AND SeX OFFenDER rEgiStRAtION. 4. aFtEr SEntenCinG, deFENse coUNSEl fILed A NOtIcE of APPeAl oN BuRtoN's bEHALf aND a motioN tO wiThDraW purSuAnt tO SuPREmE COUrt ruLe 26(C). ThE StAte filEd a MoTION tO AFFIrm. AfTER ReViewing ThE ReCoRd, tHis COURT DETErMIneD THAt bURtON'S APpEaL WAs "WholLy WItHoUt mERit and DevoID of AnY aRgUABLy appeALable iSsUe" And graNTed tHE moTIOn To AFfIrM.[2] 5. on AuGust 16, 2007 BUrtoN MoVEd pro sE fOr post-CoNviCtIon REliEF, rAIsING MulTiPLE ClAIMs incLUding ineffeCTIve asSisTANce oF COuNSEl.[3] bUrTon AlLegeD ThAT HIS TrIAl couNseL wAs InCoMPEteNt, fAiLED TO InteRViEW ANd SubPoeNA key DeFENse WiTnEsSEs, anD DID Not aLloW burtoN To testiFY. on sePtEmber 4, 2007, trial CouNsEl fIleD a sWOrN lETTeR MEmORANdUM REspONDIng To THat mOTiOn. TRIAL counSeL ExPLAINED thaT he dID Not miSlEAD BuRTON oR rEFUSe to AlLow Him to tEStiFy. RAtHeR, he aDVIseD buRToN Not To tAkE the stand FoR tHE sTRAtegIc PURPOSe OF aVoIdING CroSs-eXaMinATion on BURToN's prIOr coNViCtiOns. aftER reCeiViNg THAt ADvIcE, burToN agREed ANd CHOSe Not To tEsTIFY. trIAL cOUNSel FUrtHer EXpLaineD THAt He DiD, IN FACt, cONtAct mOsT Of ThE wiTneSSES bURtOn cLAiMed wERE Not IntERvieWed OR suBpoeNAed, And Found ThaT those WitnESseS EiTHeR COulD nOT pROvIde THe TesTiMOny BurtON CLAImEd, oR tHat thEY had NO InFoRMATiON HELPFUl TO bURtOn's deFEnsE. 6. ON JuNe 3, 2008, ThE suPEriOR coUrT DeNIEd Burton's MoTiOn witHOut A hearING, FINDiNG That bUrToN'S ARgUmEntS were AlL witHoUt meriT.[4] ON June 30, burton fILed a NoticE OF APpEaL, PRo se, And oN AUgusT 14, APpELLATe coUnSel eNTeREd An aPpeArANce oN hIS BEHalf. 7. aLThOuGh BurTOn ADVANCED numeROUs cLAimS oF error iN HIs motiON fOr pOST-cOnvICTiON ReLief, On ApPeAL he AdVanCEs ONlY ONEtHaT THe superIor COURT ErREd by DENyiNG HiS cLAiM OF INEFFEctivE aSSistaNce OF COunsEL. moREovEr, BURTon LiMITs tHat cLAIM tO tHe CONTeNTiON THat tRial COUnsel waS InEffEcTIvE By FAIlIng to cOnTacT, PRoPErlY InTErview anD suBpoEna maTErIaL WITnESSEs, And ALso by REfuSiNG tO AllOW BURtOn TO tEstIFy at tRIaL.[5] 8. tHe STATE haS mOVED tO STRIKE CeRtAIN afFiDaViTs AnD InfORMAtiOn INclUDeD iN bURtON's ApPENdiX tHAt were NOT PArT Of The REcoRd ON aPPeAL. thEse aFfiDavITs INcLudE: (i) A STaTeMeNt by MArvin burToN, SR. "That he WAs NoT ConTaCtEd, InteRvIeWED Or suBPoENaed ConCErninG The fACt ThaT tHe ALlegeD VIctIm . . . dId noT lIVe iN Our reSIdeNcE FrOM LaTE julY THRougH sEpteMBeR 2004"; AnD (II) A StATemeNt BY stAcie bRIttINghAM (BuRToN's SiSTER) thAT sHe was not InTErviEWEd bEfore The DAY of trIal conCerNINg HeR TesTimonY, anD thAt THE ALLeGED viCTIM DID nOT lIve IN hER paReNt'S rESIDEncE frOm lATE july ThROugH SEpTEmBeR 2004 and THAT THAT iSsUe WAS noT RAIseD iN QuEsTIOniNg duRInG hEr TEStIMonY At TRiaL. ALSo IncludeD WaS a STATement by eriC MOrRIs tHAt (i) "he wAS NOt conTactED, INTeRviEWeD OR CAlLED as A WiTnESS CoNcerniNG ThE FAct THat The AlLEgEd viCTIm . . . diD not lIve at marvIn BuRTON, sr. aNd ViViAN BURton's reSideNce fROM LaTE JULY thRoUgH SEPtEmBeR 2004;" AnD That (II) "I wOULd aLsO hAvE TEStiFIED That [thE ALlEgED vICTim] lIvED wITH me ApprOxIMaTELY 3 weEKs dURIng ThE ENd OF JULY AnD aUgUst 2004 AnD sHe STAYeD WiTh otheR inDIViDUAlS unTIL tHE mONTH Of sEptEmBER 2004. . . ." 9. as a GeNERAL MatTeR, ThE RECord oN ApPEaL MAy Not BE SuPPLEMEnTEd BY AfFIdAvIts reLaTINg faCTs anD ciRcuMstAnCes that werE nOT FaIRly PRESENTeD To tHe TrIAL CoUrT,[6] aND We Will NoT cOnSIDER Such supPLemEntal aFFidaVIts. fOR NEW EvIDence to Be coNsIdered, A PArTy shOulD file a mOTion to RemanD To THe trIAl CourT TO determine the faCts in lIgHt OF tHEIr NeW EVIDeNCe.[7] hErE, HOwevER, bURTon Moved fOR pOSt-COnviCTion RElIEF Pro Se, WItHout tHe EVideNCe HavING bEEN CoNSIDEred bY THe SuPErIor couRt. in SuCh circUmsTANcEs, somE leeWAY SHOUlD Be GRANTed if, In ThE iNTeresTS of juSTiCE, thE nEw evidENCE Ought tO BE coNsIDeREd.[8] FOR tHAt puRPose a remand is ApPrOPriATE. nOw, tHeREforE, it is OrdeRed THaT thiS maTTer Is RemANded to tHe SUpERior cOurt foR fuRthEr PrOCEEDINgs LiMiTed to the INEFFecTiVe aSsIstaNce OF COUnsEL CLAIM. jurISdictION iS Not rEtaIneD. nOTES [1] SEE GeneRalLY 11 DEL. C. § 4214 (PrOviDing foR SEnTENCInG As aN hABItUaL CrIMiNaL). [2] burton v. StaTe, 907 A.2D 145, 2006 wL 2434914, At 1 (DeL. 2006) (TaBlE). [3] BUrToN clAImed tHaT: (1) THE inDictMenT WaS IlLEgAL; (2) A baTsOn vIolAtiOn Had oCCurrED; (3) A JUROR had MISLed The suPeriOR CoUrt durING VoiR Dire; (4) A JURoR DrANK aLCOHOL DURinG tHE tRIal; (5) burTON WAs NOT ALLOWED TO TesTIfY; (6) bUrTOn wAS NOt aLlOweD To call witNESsES; (7) proSECUToRiaL MISCONDUCT oCCURRED; (8) HIs SeNtENce WAS IllEGAl; (9) hIs TRIal COUNsEl WaS IneffeCTivE; ANd (10) HIS tRIAL CounSel FaIlED To InTERvIEW and CALL MaTErial WiTnesseS. SEe StaTE V. BurtOn, 2008 wl 2359717 (DeL. SuPeR. CT. JuNE 3, 2008). [4] SEe sTAte v. BuRTOn, 2008 Wl 2359717, At 1-6. [5] "aPpelLANT'S cOUNSel haS ReviEweD all oF tHe alLEGatiOns seT FORth iN ThE rUlE 61 MOTIon And iS liMITInG ArGUmENt In THis OPENInG bRief To THE fACT THAT [TriaL cOuNseL] was INeffEcTivE by FAilING tO CoNTacT, PROPerLY inTERVIEw anD SubpoeNa mATEriAL wITnEsSEs FoR THe DIsPUTeD aLLEgATIONs MADE By tHE ALlEgEd vIcTIM As WELl AS AllOwiNG thE APpeLlAnt tO tESTifY dURiNg hiS tRiAl." [6] sUP. Ct. R. 8; MerRITt v. sTAte, 219 A.2d 258, 260 (dEl. 1966); dRapEr v. stAte, 146 A.2D 796, 800 (deL. 1958); See alsO gaTeLEy v. gatELeY, 832 A.2d 1251, 2003 Wl 22282584, AT *2 n.7 (Del. OcT. 1, 2003) (TAbLe) (DecLiNiNg To rEvIEw doCumeNTs presEnTED fOr The fIrsT tImE On AppeAl). [7] COMPArE mErRITT, 219 A.2D at 260 (rEmaNDinG tHe Case wIth AUThORiTY and INStrucTionS to ASCErtaiN the facts) WitH DrapEr, 146 a.2D AT 800 (RefusiNG tO cOnSidEr new evIdEnce ON APpEAL). [8] seE YaNCey v. Nat'L trUst Co., ltd., 712 A.2D 476, 1998 wL 309819 (DeL. MAY 19, 1998) (TABle) (DeL. 1998) (NOtIng That SoMe DeGRee OF lEniENcY SHOuLD bE GRanTED FOR prO sE appEalS); SEe alSo in rE esTATE OF HAlL, 882 a.2d 761, 2005 wL 2473791 (deL. AuG. 26, 2005) (table) (NotinG THat WE Allow pRo sE lITIGANts Some lEeWaY).	MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OFDELAWARE, Plaintiff Below, Appellee. No. 335, 2008 Supreme Court of Delaware. Submitted: January 28, 2009. Decided: March 4, 2009. Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices. ORDER JACK B.JACOBS, Justice. This4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, itappears to the Court that: 1. Marvin Burton, the defendant below, appeals from the denial bythe Superior Court of a Rule 61 motion for post-convictionrelief. On appeal, Burton argues thatthe trial court erroneously denied that motion which was based, inpart, ona claim of ineffective assistance of counsel. Given the serious nature of the charges, thefact that Burton's Rule 61 motionwas filed pro se, andthatthe alleged new evidence hasnotyetbeen considered bythe Superior Court, we remand for further proceedings limited to Burton's ineffective assistance of counsel claim.2. Burton was arrested on October 6,2004, and indicted on October 25,2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful SexualContact. Burton's daughter, the allegedvictim,whowas eleven yearsold atthe relevant times, claimed thaton at least three occasions Burton had sexually abused and raped her. All three incidents allegedlyoccurred while the victim was staying at Burton's parents' housein 2004, with the two most seriousincidentsallegedly occurring in August 2004. Trial began on August 8, 2005. On August 11, 2005 Burton was convicted onall charges.3. Becauseof priorconvictions for Third Degree Burglary andThird Degree Unlawful Sexual Intercourse, theState moved to declare Burton an habitual offender under 11 Del.C.§ 4214.[1] OnOctober 28, 2005, the Superior Court declared Burton an habitual offender and sentenced him to life in prison for each of the two Rape charges, plus two additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Courtalso imposed special conditions, including a no contact order and sex offenderregistration. 4. After sentencing, defense counselfiled a notice of appeal onBurton's behalf anda motion to withdraw pursuant to Supreme Court Rule 26(c). The State filed a motionto affirm. After reviewing the record, this Court determinedthat Burton's appeal was "wholly without merit and devoid of any arguably appealable issue" and granted the motion to affirm.[2] 5. On August 16, 2007 Burton moved pro se for post-convictionrelief, raising multiple claims including ineffective assistance of counsel.[3] Burton alleged that histrial counsel was incompetent, failed to interview andsubpoena key defense witnesses, and did not allow Burton to testify. On September4, 2007, trial counsel filed a sworn letter memorandum responding tothat motion. Trial counsel explained that he did not mislead Burton or refuse to allow him totestify. Rather,he advisedBurton notto take the stand for the strategicpurpose of avoiding cross-examination onBurton's prior convictions.After receiving that advice, Burton agreed and chose not totestify. Trial counsel further explainedthat he did, in fact, contact most of the witnesses Burton claimed were not interviewed or subpoenaed, and found that those witnesseseither could not provide the testimony Burton claimed, or that theyhad noinformation helpfulto Burton's defense. 6. On June 3,2008, the Superior Court denied Burton'smotion without a hearing, finding that Burton's arguments were all without merit.[4] On June 30, Burtonfiled a notice ofappeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf.7. Although Burton advancednumerous claims of error in hismotion for post-conviction relief, on appeal he advances only onethat the SuperiorCourterred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claimto the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow Burtonto testify at trial.[5] 8. The State has moved tostrike certain affidavits and information included in Burton'sappendix that were notpart of therecord on appeal. These affidavits include: (i) a statement by MarvinBurton, Sr. "that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim . . . did not live in our residence from late July through September 2004"; and(ii) a statementby StacieBrittingham (Burton's sister) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live inher parent'sresidence from late July throughSeptember 2004 and thatthat issue was not raised in questioning during her testimonyat trial. Also included wasa statement by Eric Morris that (i) "he was not contacted, interviewedor called as a witness concerning the fact that the allegedvictim . .. did not live atMarvin Burton, Sr. and VivianBurton's residence from lateJuly throughSeptember 2004;" and that (ii) "I would alsohave testified that [the alleged victim] lived with me approximately 3weeks during the end of Julyand August2004 and she stayedwith other individuals until the monthof September 2004. . . ." 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts andcircumstances that were not fairly presented to the trial court,[6] and wewill not consider such supplementalaffidavits. For new evidence to be considered, a party should file a motion to remand tothe trialcourtto determine the facts in light of their new evidence.[7] Here, however, Burton moved forpost-conviction reliefpro se, withoutthe evidence having been considered by the Superior Court. In such circumstances, some leewayshould be granted if, in the interests of justice, the new evidence ought tobe considered.[8] For that purpose a remand is appropriate. NOW,THEREFORE, IT IS ORDERED that this matter is remanded to the Superior Court for further proceedings limited to the ineffectiveassistance of counsel claim. Jurisdictionis not retained.NOTES [1] See generally 11 Del. C. § 4214 (providing for sentencing asan habitual criminal). [2] Burtonv.State, 907 A.2d 145, 2006 WL 2434914, at 1 (Del. 2006) (Table).[3] Burton claimed that: (1)the indictmentwasillegal; (2) a Batson violation hadoccurred; (3) a juror had misledthe Superior Court during voir dire; (4) a juror drankalcohol during thetrial; (5) Burton was not allowed to testify; (6) Burton was not allowed to call witnesses; (7) prosecutorial misconduct occurred; (8) his sentencewas illegal; (9) his trial counsel was ineffective; and (10) his trial counsel failed to interviewand call materialwitnesses. See State v. Burton, 2008WL 2359717 (Del. Super.Ct. June 3, 2008). [4] See State v. Burton, 2008 WL2359717, at 1-6. [5] "Appellant's counsel hasreviewed all of the allegations set forth in the Rule 61 Motion andis limiting argument in this opening brief to the fact that [trial counsel] was ineffective by failing to contact, properly interview and subpoena material witnesses forthe disputed allegations made by the alleged victim as well as allowing the Appellant to testify during his trial." [6] Sup. Ct. R. 8; Merrittv. State, 219 A.2d258, 260 (Del.1966); Draper v. State, 146 A.2d 796, 800(Del. 1958); see also Gateley v. Gateley, 832A.2d 1251, 2003 WL 22282584, at *2 n.7 (Del. Oct.1, 2003) (Table) (declining to review documents presentedfor the first time on appeal). [7] Compare Merritt, 219 A.2d at 260 (remanding the case with authorityand instructions to ascertain the facts) with Draper, 146 A.2d at 800 (refusing to consider new evidence on appeal).[8] See Yancey v. Nat'l Trust Co., Ltd., 712 A.2d476, 1998 WL 309819 (Del. May 19,1998) (Table) (Del. 1998) (noting that some degree of leniency should be granted for pro se appeals); seealso Inre Estate ofHall, 882 A.2d 761, 2005 WL2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro selitigantssome leeway).	MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. _No._ 335, 2008 Supreme _Court_ _of_ Delaware. _Submitted:_ _January_ 28, 2009. Decided: March 4, _2009._ Before _STEELE,_ Chief _Justice,_ JACOBS _and_ RIDGELY, Justices. ORDER _JACK_ B. JACOBS, Justice. _This_ 4th day of March 2009, _upon_ consideration of the briefs _of_ the parties and the record in _this_ case, it appears to the Court that: 1. Marvin _Burton,_ the defendant below, appeals from the denial _by_ _the_ Superior Court of a Rule 61 motion _for_ post-conviction _relief._ _On_ _appeal,_ Burton argues that _the_ trial court erroneously denied that motion which _was_ based, in part, on a claim of ineffective assistance of counsel. Given the serious nature of _the_ charges, _the_ fact _that_ Burton's Rule _61_ motion was filed pro se, and that _the_ alleged new evidence has _not_ yet been considered by _the_ Superior Court, _we_ remand for further proceedings limited _to_ _Burton's_ _ineffective_ assistance of counsel claim. 2. Burton was arrested _on_ _October_ 6, _2004,_ and indicted on October 25, 2004 on charges of _First_ Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton's daughter, _the_ alleged victim, _who_ was eleven years old at the _relevant_ times, claimed that on at least three occasions _Burton_ had sexually abused and raped her. All three incidents _allegedly_ _occurred_ while the victim was staying at _Burton's_ parents' _house_ in 2004, with the two most serious incidents _allegedly_ occurring in August 2004. _Trial_ began on _August_ 8, 2005. On _August_ 11, 2005 Burton was convicted on all _charges._ 3. Because of _prior_ convictions for Third Degree Burglary and Third Degree Unlawful Sexual _Intercourse,_ the State moved to declare Burton an habitual offender under 11 _Del._ C. § _4214.[1]_ On October 28, 2005, the Superior Court declared _Burton_ _an_ habitual offender and sentenced him _to_ life in prison for each of the _two_ Rape _charges,_ plus two _additional_ years imprisonment for the Unlawful Sexual Contact _charge._ The _Superior_ _Court_ also imposed special conditions, including _a_ no contact order and sex _offender_ registration. 4. _After_ sentencing, defense counsel _filed_ a notice of appeal on Burton's behalf and _a_ motion to withdraw pursuant _to_ Supreme Court _Rule_ _26(c)._ The State filed a _motion_ to affirm. _After_ reviewing _the_ record, this _Court_ determined that Burton's _appeal_ was "wholly without _merit_ and _devoid_ of any arguably _appealable_ issue" and granted the motion _to_ affirm.[2] 5. On August 16, _2007_ Burton _moved_ pro _se_ for post-conviction _relief,_ raising _multiple_ claims _including_ ineffective assistance of _counsel.[3]_ Burton alleged that his trial counsel was _incompetent,_ _failed_ to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 4, 2007, trial counsel _filed_ a sworn letter memorandum responding to that _motion._ Trial counsel explained that he did not _mislead_ Burton or refuse to allow him to testify. Rather, he advised Burton not to _take_ the stand for the strategic _purpose_ _of_ avoiding cross-examination _on_ Burton's prior convictions. _After_ receiving that advice, Burton _agreed_ _and_ chose _not_ to testify. Trial counsel further explained that he did, in fact, _contact_ _most_ of the witnesses _Burton_ _claimed_ were not interviewed or _subpoenaed,_ and found _that_ those _witnesses_ either could not provide _the_ testimony Burton claimed, or _that_ they had no _information_ helpful _to_ Burton's defense. 6. _On_ June _3,_ 2008, the _Superior_ Court denied Burton's motion without _a_ hearing, _finding_ that _Burton's_ arguments _were_ _all_ without merit.[4] _On_ June 30, Burton filed _a_ _notice_ of _appeal,_ pro se, and _on_ _August_ _14,_ _appellate_ counsel entered an appearance _on_ his behalf. 7. Although Burton advanced numerous claims of error _in_ his motion for post-conviction relief, on appeal he advances _only_ onethat the Superior Court erred by denying his _claim_ of ineffective assistance of counsel. _Moreover,_ Burton limits that claim to the contention that _trial_ counsel was ineffective by failing to contact, properly interview and subpoena material _witnesses,_ and also _by_ refusing _to_ allow Burton _to_ testify _at_ _trial.[5]_ _8._ The State has moved to strike certain affidavits and _information_ included in Burton's appendix that were not part _of_ the record on _appeal._ These affidavits include: (i) a _statement_ by _Marvin_ Burton, Sr. "that he was not _contacted,_ interviewed or subpoenaed concerning the _fact_ that _the_ alleged victim . . _._ did not _live_ _in_ our residence from late July through _September_ 2004"; and (ii) a statement by _Stacie_ Brittingham (Burton's _sister)_ that she was not interviewed before the day of trial concerning her testimony, and _that_ the alleged victim did not live _in_ her parent's residence _from_ late _July_ through September 2004 and that that issue was _not_ raised in questioning during her testimony at _trial._ Also included was a _statement_ by _Eric_ _Morris_ that (i) _"he_ was not contacted, interviewed _or_ called _as_ a witness concerning the fact that _the_ alleged _victim_ . . . did not live at Marvin Burton, _Sr._ _and_ Vivian Burton's residence from late July _through_ September 2004;" and that (ii) "I _would_ also have _testified_ _that_ [the alleged victim] lived with me approximately 3 _weeks_ during the _end_ of July _and_ August 2004 and she _stayed_ _with_ other _individuals_ until the month _of_ September 2004. . . _."_ 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and _circumstances_ that were _not_ _fairly_ _presented_ to the _trial_ court,[6] _and_ we will not _consider_ such supplemental affidavits. _For_ _new_ _evidence_ to be considered, a party should file a motion _to_ _remand_ to the trial _court_ to _determine_ the facts in _light_ _of_ their new evidence.[7] Here, _however,_ Burton moved for _post-conviction_ relief pro se, _without_ _the_ _evidence_ _having_ been considered by the Superior Court. In _such_ circumstances, some leeway should be _granted_ if, in the interests _of_ justice, the new evidence ought _to_ be _considered.[8]_ _For_ _that_ purpose a _remand_ is appropriate. NOW, THEREFORE, IT IS _ORDERED_ that this matter is remanded _to_ the Superior Court for further proceedings _limited_ to the ineffective assistance of counsel _claim._ Jurisdiction is not retained. NOTES [1] See _generally_ _11_ Del. C. § 4214 (providing for sentencing as an habitual criminal). [2] _Burton_ v. State, 907 A.2d 145, _2006_ WL 2434914, at _1_ (Del. 2006) (Table). _[3]_ Burton claimed _that:_ (1) the indictment was illegal; (2) a Batson violation _had_ occurred; (3) a juror had misled the Superior _Court_ during _voir_ dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to _testify;_ _(6)_ _Burton_ was _not_ _allowed_ to _call_ witnesses; (7) _prosecutorial_ misconduct occurred; (8) his sentence was illegal; (9) _his_ trial counsel was _ineffective;_ _and_ (10) his trial counsel failed to interview and call material witnesses. See State v. Burton, 2008 WL 2359717 (Del. Super. _Ct._ _June_ 3, 2008). [4] See State v. Burton, 2008 _WL_ 2359717, at 1-6. [5] "Appellant's counsel has reviewed all of the allegations set forth in the Rule 61 Motion and is _limiting_ _argument_ in _this_ opening _brief_ to the fact that [trial counsel] _was_ ineffective by failing _to_ contact, properly interview and subpoena _material_ _witnesses_ for _the_ disputed allegations made by the _alleged_ _victim_ as well as allowing the Appellant to testify _during_ his _trial."_ _[6]_ _Sup._ _Ct._ R. 8; Merritt _v._ State, 219 A.2d 258, 260 (Del. 1966); Draper v. State, 146 _A.2d_ 796, 800 _(Del._ 1958); _see_ also Gateley v. Gateley, 832 _A.2d_ 1251, 2003 WL 22282584, at *2 n.7 _(Del._ Oct. 1, 2003) (Table) _(declining_ to review _documents_ presented _for_ the first time _on_ appeal). [7] Compare Merritt, 219 A.2d at 260 (remanding the case with authority and instructions to ascertain the facts) with Draper, 146 _A.2d_ at 800 (refusing to consider new evidence _on_ appeal). [8] See Yancey v. Nat'l _Trust_ Co., Ltd., 712 _A.2d_ _476,_ _1998_ _WL_ 309819 (Del. May 19, 1998) (Table) (Del. _1998)_ (noting that some _degree_ _of_ leniency should be _granted_ for pro se appeals); _see_ _also_ In re Estate of Hall, 882 A.2d 761, 2005 WL 2473791 _(Del._ Aug. 26, 2005) (Table) (noting that _we_ allow pro se litigants some leeway).
C-Track E-Filing The Supreme Court of Nevada Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search	c - track e - filing the supreme judicial of nevada appellate case management system c - log, the browser based system for appellate courts nationwide search participant search	C - Track E - Filing The Supreme XourH of Necaea Appellate CWs@ Management qyste< C - TrXcO, the Gr(wser based CMS for AlpellatW Courts Case Search Partjfipant eeZrch	C-Track E-Filing The Supreme Court of Appellate Case Management System C-Track, the browser based for Appellate Courts Case Search Participant Search	c-TRaCk e-fIlING the SUprEME COUrT of nEVADA APPELLaTe cAsE maNAgeMEnT System C-tRAcK, tHe brOwseR BAsEd CmS FOR APpELLATE cOuRTS CASe SeARcH PaRtiCipAnT SEARch	C-Track E-Filing The Supreme Court of Nevada Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search	C-Track E-Filing The Supreme Court _of_ Nevada Appellate Case _Management_ System C-Track, _the_ _browser_ based CMS for Appellate Courts Case Search Participant Search
3 Md. App. 266 (1968) 238 A.2d 920 MELVIN HENRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION. No. 102, September Term, 1967. Court of Special Appeals of Maryland. Decided February 28, 1968. Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. PER CURIAM: This is an application for leave to appeal from an order filed on July 21, 1967, by Judge Robert I.H. Hammerman, sitting 268 in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act. As stated by Judge Hammerman in his memorandum opinion, the applicant raised the following contentions: 1. That petitioner was the subject of an illegal arrest for the reasons that: a. He was not a resident of the house in which he was arrested, b. The police had no probable cause to arrest him, c. That the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession. 2. That the police gave perjured testimony at the time of trial. 3. That he was not properly represented by his court appointed lawyer. Judge Hammerman stated that: "Petitioner's counsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time." The mere fact of an illegal arrest is not grounds for relief under the Uniform Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized as a result of the illegal arrest, this constitutes an allegation of an illegal search and seizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, we note that the lower court found that there was nothing in the testimony of the applicant to indicate 269 that his arrest was illegal. Since applicant did not carry his burden of proof, the arrest must be considered as legal. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered. Judge Hammerman states that the rule as to incompetence of counsel is "that it is only when the representation is so deficient as to make a farce out of the trial that an accused is entitled to a new trial." Although this was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. Warden, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded "a genuine and effective representation." Turner v. State, 303 F.2d 507 (4th Cir.1962); Turner v. State, 318 F.2d 852 (4th Cir.1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65. However, even under this more comprehensive rule, the trial counsel for applicant was not incompetent. Judge Hammerman found that "the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. Quite the contrary in the case. The court feels that (counsel) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates." As to the second contention, we accept the lower court's finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108. Application denied.	3 md. app. 266 ( 3d ) 238 rev. 2d 920 melvin henry green v. warden, maryland house of correction. no. 102, september term, 1967. court of special appeals of maryland. decided february 28, 1968. before murphy, c. j., and anderson, morton, orth, and thompson, jj. per curiam : this is an application for leave to serve as an order filed on july 21, 1967, by judge robert i. h. hammerman, sitting * 268 in the criminal court of baltimore, denying relief issued under the uniform post conviction procedure act. as cited by judge hammerman in his memorandum opinion, the applicant raised the following contentions : 1. that petitioner was the subject of an illegal arrest for the reasons that : a. he was not a resident of the house in which he was arrested, b. the warden had no probable cause to arrest him, c. that the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession. 2. that the police gave perjured testimony at the time of trial. 3. that he was not properly represented by his court appointed lawyer. judge hammerman stated that : " petitioner ' s counsel conceded at the outset and at the conclusion of the hearing that both first two grounds were not proper subjects for review on post conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time. " the mere fact of an illegal arrest is not grounds for relief under the uniform post conviction procedure act, slater v. warden, 233 md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused ; ogle v. warden, 236 md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized or a result of the illegal arrest, this implies an allegation of an illegal search and seizure and may properly be raised under the act. davis v. warden, 232 md. 670 ; fennell v. warden. 236 md. 423 ; austin v. director, 237 md. 314. since this issue was not pressed at the hearing, it can be considered as abandoned. szukiewicz v. warden, 1 md. app. 61. however, we note that the lower court found that there was nothing in the testimony of the applicant to indicate * 269 that his arrest was illegal. since applicant did not carry his burden of proof, the arrest must be considered as legal. thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered. judge hammerman states that the rule as to incompetence of counsel is " that it is only when the representation is so deficient as to make a farce out of the trial that an accused is entitled to a new trial. " although this was the former rule in maryland, the court of appeals has expanded this rule in slater v. warden, 241 md. 668, so as to give a more comprehensive definition to that rule. the more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded " a genuine and effective representation. " turner v. state, 303 f. 2d 507 ( 4th cir. 1962 ) ; turner v. state, 318 f. 2d 852 ( 4th cir. 1963 ) ; slater v. warden, supra ; jones v. warden, 244 md. 720 ; nash v. warden, 243 md. 700. this is the rule that is now being followed by the maryland court of special appeals. groh v. warden, 1 md. app. 674 ; charles v. state, 1 md. app. 222 ; norris v. warden, 1 md. app. 69 ; cherrix v. warden, 1 md. app. 65. however, even under this more comprehensive rule, the trial counsel for applicant was not incompetent. judge hammerman found that " the court clearly does not find that ( counsel ) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. quite the contrary in the case. the court feels that ( counsel ) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates. " as to the second contention, we accept the lower court ' s finding that this was a bald allegation as no evidence was offered to support it at the hearing. thus it cannot constitute grounds for relief. mccoy v. warden, 1 md. app. 108. application denied.	3 Md. App. 266 (1968) 238 A. 2d 920 MELVIN j$NRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION. No. 102, September Term, 1967. Court of Special Appeals of Maryland. Decided February 28, 1968. Before MURPHY, C. J. , and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. PER CURIAM: This is an application for leave to appeal from an order filed on July 21, 1967, by Judge Robert I. H. HWmmermah, sitting * 268 in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procewude Act. As stated by yuXge Hammerman in his memorandum opinion, the applicant raised the following contentions: 1. That petitioner was the subject of an illegal arrest for the reasons that: a. He was not a resident of the house in which he was arrested, b. The police had no probable cause to arrest him, c. That the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession. 2. That the police gave perjured testimony at the time of trial. 3. That he was not properly represented by his court appointed lawyer. Judge Hammerman stated that: " Petitioner ' s counsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time. " The mere fact of an illegal arrest is not grounSE for relief under the Uniform Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized as a result of the illegal arrest, this constitutes an allegation of an illegal search and seizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, we note that the lower court found that there was nothing in the testimony of the applicant to indicate * 269 that his arrest was illegal. Since applicant did not carry his burden of proof, the arrest must be considered as kegAl. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered. Judge Hammerman states that the rule as to incompetence of counsel is " that it is only when the representation is so deficient as to make a farce out of the t#*al that an accused is entitled to a new trial. " Although tg8s was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. WarVeJ, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded " a genuine and effective representation. " Turner v. State, 303 F. 2d 507 (4th Cir. 1962 ); Turner v. State, 318 F. 2d 852 (4th Cir. 1963 ); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65. However, even under $hks more comprehensive rule, the trial counsel for applicant was not incompetent. Judge Hammerman found that " the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. Quite the contrary in the case. The court feels that (counsel) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates. " As to the second contention, we accept the lower court ' s finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108. Application denied.	3 Md. App. 266 (1968) 238 A.2d MELVIN HENRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION. No. September Term, 1967. Court Special Appeals of Maryland. Decided February 28, 1968. Before MURPHY, C.J., MORTON, ORTH, and THOMPSON, JJ. PER CURIAM: This is an application for to appeal from an order filed on July 21, 1967, by Judge Robert I.H. Hammerman, 268 the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act. As stated by Judge Hammerman memorandum opinion, the applicant raised the following contentions: 1. That petitioner was subject an illegal arrest for that: a. He a resident of the in which he was arrested, The police had no probable cause to arrest him, c. That narcotics were found in the hall of the home in which he arrested and he was charged with their possession. 2. That the police gave testimony at the time of trial. 3. That he was not properly represented by his court appointed lawyer. Judge stated that: "Petitioner's counsel conceded at the outset and at conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, she understood that issues were raised at the time trial, and that she was not pressing them time." The mere fact of an illegal arrest is not grounds for relief under Uniform Post Conviction Procedure Act, Slater 233 609, as the legality of the arrest where no fruits of the arrest are introduced into evidence at the trial against the Ogle v. Warden, 236 Md. 425, but the petitioner alleges, as he seems to in this case, that evidence was seized as a result the illegal arrest, this constitutes allegation of an illegal search and seizure and be raised under Act. Davis v. Warden, 232 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, note that the lower court found that there nothing in the testimony of the applicant to indicate 269 that arrest was illegal. Since applicant did not carry his burden of proof, the arrest must considered as legal. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered. Judge Hammerman states that the rule to incompetence of is "that it is only when the representation is so deficient to make a farce of the trial an accused is entitled to a new trial." Although this was former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. 241 Md. 668, so as a more comprehensive definition to that rule. The more rule now is counsel is incompetent when under all the circumstances of the case petitioner has not been afforded "a genuine and effective representation." Turner v. State, 303 F.2d 507 (4th Cir.1962); Turner State, 318 F.2d 852 (4th Cir.1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that now being followed by the Maryland Court of Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65. However, even under this more comprehensive rule, the trial for applicant was not incompetent. Judge Hammerman found that "the court clearly does not find that (counsel) was in any incompetent or negligent the performance his duties as attorney for the Quite the contrary in the case. The court feels that (counsel) a more than job in defending the petitioner, as the testimony clearly demonstrates." As to the second contention, we accept the lower court's finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute for relief. McCoy v. Warden, 1 App. 108. Application denied.	3 mD. aPp. 266 (1968) 238 A.2d 920 mElViN HEnry gReen v. WardEn, mArylAnD HOusE Of cORrEctiOn. no. 102, septEmbER tERm, 1967. cOUrt oF SPECiaL aPPeAls oF mArYLAnd. DEcIded feBRUARy 28, 1968. before MURpHY, c.j., aNd AnDerSOn, MoRTOn, ortH, anD THoMpson, Jj. PER curiAm: ThIS IS aN AppLICAtIon foR leaVE TO appeaL FRoM AN oRdEr fiLED On JulY 21, 1967, by JudGE rObert i.H. HAMMeRmAn, sItTinG 268 IN tHE crImInal COUrT of BalTImOre, DENyING ReLiEF sOugHT UndEr thE uNiForM posT CoNviCTiOn ProCEduRE ACT. as staTED BY juDge HaMmeRmAN In his MeMOrandUm OpiNioN, THE APPLICAnt RAIsED tHe FOllOWInG coNtEnTionS: 1. THAT pEtiTiONeR wAS THe SUbJect of AN iLlEGAl aRRest foR tHe REAsonS tHAt: a. He WAS nOT a ResIdENT oF thE HOUSE IN WHiCH He was aRREsTED, b. ThE pOLiCe hAd NO PrObABlE cAUse tO arrEST him, c. ThAT THe NARcOtiCS werE FOUNd iN The Hall oF The Home In whiCh hE was ARrEsted AND HE Was chargeD WITH theIR PosSessION. 2. THAT tHE pOlice GAVe PerJuRED tEsTImOnY At the TiME OF TRiAL. 3. ThaT He wAS Not prOPeRly rePREsENted bY His cOurT APpOINTEd laWYER. JUdge haMMeRMAN sTaTED thaT: "PetitIONEr's counSEL CoNceded aT The OUTsEt ANd aT THE cOnclUSiOn OF the heaRiNG thAT tHe fiRSt TWO gRounDS WErE noT proPEr SubJECtS FOR reViEw oN pOsT cONvIctIOn, THAt SHE unDERsTOOd tHat THESE iSsUEs wERe RaISed at THE timE OF trIAl, aNd thAt SHe wAS NOT PreSSING thEm AT tHis TiMe." THE mERe FaCt oF An IlLEgAl ARresT IS not GRoUNdS for RElief Under The uNiForM POsT convictION PrOCedurE Act, slATer v. WArDEN, 233 md. 609, AS thE LegaLItY oF The ARreST Is IMMAteriAL whERe no frUiTs oF tHe ARresT ArE iNtRodUceD intO EvideNcE AT thE tRIal aGAINst thE AcCUsEd; OGLe v. WardeN, 236 md. 425, But WHeRE thE PEtitiOneR allEgEs, as hE SeEMs To DO IN thIs Case, tHAT EVIDEnCe was SEizEd as A ResUlT oF ThE ilLEgAL ARRest, thIS CONsTitUtEs An ALleGaTiON oF an illEGAl SeArcH And sEizURE And mAY prOPErly BE raISeD UnDEr tHe acT. dAvIS V. wArDEn, 232 mD. 670; FEnneLl V. WArdEN. 236 md. 423; AUStin v. dirEctOr, 237 Md. 314. SInCe THIs issUe WAs noT pREssED at THE HearInG, It can Be CoNsiDERED As aBANDONed. SzUkIewICZ V. wARdEn, 1 md. app. 61. hoWEVEr, we NoTE tHAt the LOwer COurT fOuND ThaT there WaS nOTHInG iN tHE TEsTiMony Of the appliCanT to InDICATE 269 tHaT HiS ArrEsT waS ILlEgAL. sincE AppLICAnt dID NOt CaRry hIS BUrDEn oF prOOF, ThE ARREsT MUST be CONSIdEreD AS lEGAl. tHus, The ALLEGatiOn Of An ilLEGaL seaRch AnD SEizurE WouLd alSO FAil SinCe FurthER eVidENCE TO SUpPort thIS COnTenTiOn wAs NoT oFfErED. JudgE HamMErMAn sTates tHAt the rUlE aS To IncOMPEtencE OF coUNSeL iS "THat IT iS oNly wheN thE rEprESEntaTioN iS so DEfIcIent as to MAke A fARcE OuT Of The trIAL ThAT an AcCuSEd is ENTITled To a nEw tRiaL." ALThOuGH tHIs waS THE fOrMer Rule IN MARylAND, the COUrt Of APpeaLs Has ExPanDED thiS rUle In SlAtER v. WArdEN, 241 md. 668, so as To GiVE A mORE cOMpReheNsIVe deFINitiOn To thAt RULe. tHe MOre PreFERAble ruLE NoW IS tHaT cOUnseL iS IncompETEnt whEN uNDeR alL THe CIrCumstaNCEs OF thE paRTiCULAr casE ThE PetItioNer Has nOT bEEN afFoRdED "A GENuiNE And eFFectIVe rEPreSentatION." TurNeR V. sTAtE, 303 f.2d 507 (4Th cir.1962); tuRnER V. sTATE, 318 F.2D 852 (4tH CiR.1963); SLater v. wARDEN, SuPRa; jONes V. WarDen, 244 md. 720; nAsh v. Warden, 243 mD. 700. THiS Is ThE rULe tHaT iS now bEing FolLOweD bY tHe marYlaNd CoUrt OF SPEcIal aPpEaLs. GROH v. WarDEn, 1 mD. apP. 674; cHaRLEs V. STAtE, 1 md. APP. 222; nOrRiS V. WARdeN, 1 mD. app. 69; CHerRiX V. WardEN, 1 Md. ApP. 65. HOWEvER, EvEn unDER ThIS MOre coMPREHEnsive RuLe, THE tRIAL couNSel FOR ApPliCAnt WAS nOt IncoMPetent. JUDGE HAMmERMAn fOuND that "THE COUrt cLEaRLY dOes nOt FinD tHAt (COUnsel) wAS IN anY waY IncompetenT oR NEgliGenT in tHe peRFOrMaNce Of His DUTIES aS AttoRNEY FOr the PEtItiONeR. qUITE tHE contRaRY In THe casE. the CoUrt FeeLs ThaT (cOuNSeL) DID a More thAn AdEquAte jOB iN deFEndInG tHE PetITioneR, AS the tEsTimonY cLEarLY dEmOnsTRATEs." aS TO tHE sEcONd ContENtIOn, We accEPt the lOWer coURT'S fINdIng tHAt THIS wAS A baLD allegaTion As NO EvIdeNCE WaS OFfERED TO SupPOrt It at tHE hearING. thUs It CannoT ConStItUte gRoUNds for relieF. MCCOy v. waRdEN, 1 mD. aPP. 108. apPLicAtion dEnied.	3 Md. App. 266 (1968) 238 A.2d 920 MELVIN HENRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION. No. 102, September Term, 1967. Court of Special Appeals of Maryland. Decided February 28, 1968. Before MURPHY, C.J., and ANDERSON,MORTON, ORTH,and THOMPSON, JJ. PER CURIAM: This is an application forleave to appeal from an orderfiledon July 21, 1967, by Judge RobertI.H. Hammerman, sitting 268 in the Criminal Court ofBaltimore, denying relief sought under the Uniform Post Conviction Procedure Act. As stated by Judge Hammerman in hismemorandum opinion,the applicant raised the following contentions: 1. That petitioner was the subject of an illegal arrestfor the reasons that: a. He was not a residentof the house in which he wasarrested, b. The police had no probable cause to arrest him, c. Thatthe narcotics were found in the hall of the home inwhich he was arrested andhe was charged with their possession. 2. Thatthepolice gaveperjuredtestimony atthetime of trial. 3. That he wasnotproperly represented by his court appointed lawyer. Judge Hammerman stated that: "Petitioner'scounsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understoodthat theseissues were raised atthe time of trial, and that she was not pressing them at this time."The mere fact of an illegal arrestisnotgrounds for relief under the UniformPostConviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest isimmaterial where no fruits of the arrest are introduced into evidence at the trialagainst the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seemsto doin this case, thatevidencewas seized asa result of the illegal arrest,this constitutesanallegation of an illegal search andseizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressedat the hearing, it can be consideredas abandoned. Szukiewiczv.Warden, 1Md.App.61.However, we notethat the lower court found that therewas nothing in the testimony of the applicant to indicate 269 that his arrest was illegal. Since applicant didnot carry his burden of proof, the arrest must be considered as legal. Thus, the allegation ofan illegal searchand seizure would also fail since further evidenceto support this contention was not offered. Judge Hammerman states that therule as to incompetence of counsel is "that it isonly when the representation is so deficientasto makea farce outof the trial that an accused is entitled to a new trial." Although this was the former rule in Maryland, theCourt of Appeals has expandedthis rule in Slaterv. Warden,241 Md. 668, so asto give a more comprehensive definition to that rule.The more preferable rulenowis that counsel is incompetent when underall the circumstances of theparticular case the petitioner hasnot been afforded "agenuine and effective representation." Turner v. State, 303 F.2d 507 (4th Cir.1962); Turner v. State,318 F.2d852(4th Cir.1963); Slater v.Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by theMaryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State,1 Md. App. 222;Norrisv. Warden, 1 Md. App.69; Cherrix v. Warden, 1 Md. App. 65.However, even under this more comprehensive rule, the trialcounsel for applicant was not incompetent. Judge Hammerman found that "the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties asattorney forthe petitioner. Quite the contrary in the case. The court feelsthat (counsel) did a more than adequate jobin defending the petitioner, as the testimony clearly demonstrates." As to the second contention, we accept the lowercourt's finding that thiswas a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108. Application denied.	3 Md. _App._ 266 (1968) _238_ A.2d 920 _MELVIN_ _HENRY_ GREEN _v._ WARDEN, MARYLAND _HOUSE_ _OF_ CORRECTION. No. 102, September _Term,_ 1967. _Court_ _of_ Special Appeals of Maryland. _Decided_ February 28, 1968. Before MURPHY, _C.J.,_ and ANDERSON, _MORTON,_ ORTH, and THOMPSON, JJ. PER CURIAM: This is an _application_ for _leave_ to appeal from an order filed on July _21,_ 1967, by Judge Robert I.H. Hammerman, sitting 268 in the Criminal Court _of_ _Baltimore,_ _denying_ relief sought under the Uniform Post _Conviction_ Procedure _Act._ As stated by Judge Hammerman in his memorandum _opinion,_ the applicant _raised_ the following contentions: 1. That petitioner was the _subject_ _of_ an illegal _arrest_ for the reasons that: a. He was not a resident of the house in which _he_ was arrested, b. The police had no probable cause to _arrest_ him, c. _That_ the narcotics _were_ found in the hall _of_ the home in which he was arrested and _he_ _was_ _charged_ with _their_ possession. 2. _That_ the police gave _perjured_ testimony at the time of trial. 3. That he was not properly represented by his court appointed lawyer. Judge _Hammerman_ stated _that:_ _"Petitioner's_ counsel conceded at _the_ outset and at the conclusion of the hearing that the _first_ two _grounds_ _were_ _not_ proper subjects for _review_ on _Post_ _Conviction,_ that she understood that these issues were _raised_ at the _time_ _of_ trial, and that _she_ _was_ not pressing them _at_ this time." The mere fact of _an_ illegal arrest _is_ not grounds for relief under the _Uniform_ Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is _immaterial_ _where_ no fruits of the arrest _are_ introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in _this_ case, that evidence _was_ seized as _a_ result of _the_ illegal arrest, this constitutes _an_ allegation of an illegal search and seizure and may properly be raised _under_ the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since _this_ issue was not pressed at the hearing, it _can_ be considered as abandoned. Szukiewicz _v._ Warden, 1 _Md._ App. 61. However, we note that the lower _court_ found that there was _nothing_ _in_ the testimony _of_ the applicant to indicate 269 that his arrest was _illegal._ Since applicant did not _carry_ _his_ _burden_ of proof, the arrest must be _considered_ as legal. Thus, the allegation of an illegal search and seizure would also _fail_ since _further_ _evidence_ _to_ support this _contention_ was not offered. Judge Hammerman states that the rule as to incompetence of counsel _is_ "that it is only when the representation is so deficient as to make a farce _out_ of _the_ _trial_ _that_ an accused is entitled to a new trial." Although this was the former rule in Maryland, _the_ _Court_ of Appeals has expanded this rule in Slater v. Warden, _241_ Md. 668, so as to _give_ a _more_ comprehensive definition to that rule. The more _preferable_ rule now is _that_ counsel is incompetent when under all the circumstances of the particular case _the_ petitioner _has_ not been afforded "a _genuine_ and effective representation." Turner _v._ State, 303 F.2d _507_ _(4th_ Cir.1962); Turner v. _State,_ 318 F.2d 852 _(4th_ Cir.1963); Slater _v._ Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. _This_ is the rule that _is_ now being followed by the Maryland Court of Special Appeals. _Groh_ v. Warden, 1 Md. _App._ 674; Charles _v._ State, 1 _Md._ App. 222; _Norris_ v. Warden, 1 Md. App. _69;_ Cherrix v. Warden, 1 Md. App. 65. However, even under this more _comprehensive_ _rule,_ the _trial_ counsel _for_ _applicant_ was _not_ _incompetent._ Judge Hammerman found _that_ "the court clearly does _not_ find _that_ (counsel) was in _any_ way incompetent or negligent in the _performance_ of his duties _as_ attorney _for_ the petitioner. Quite the contrary _in_ the case. _The_ court feels that (counsel) did a _more_ _than_ adequate job in _defending_ the petitioner, _as_ the _testimony_ clearly demonstrates." As to the second _contention,_ we accept the lower court's finding that this was a _bald_ _allegation_ as no evidence was offered to support _it_ at _the_ hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 _Md._ App. _108._ Application denied.
818 F.2d 878 Comegysv.V.A. 87-3018 United States Court of Appeals,Federal Circuit. 1/26/87 MSPB, 31 M.S.P.R. 293 VACATED AND REMANDED	818 maj. 2d 878 comegysv. v. a. 87 - 87 united states court of appeals, usa dept. 1 / 26 / 87 mspb, 31 m. s. h. r. § vacated and dismissed	818 F. 2d 878 Comeg&sc. V. A. 87 - E01& UnOtFd StzteX C(u3t of Appeals, Fedsrap CurcuiY. 1 / 26 / 87 MSLf, 31 M. S. P. R. 293 VACwTEF AND RDMANDEw	818 F.2d 878 Comegysv.V.A. 87-3018 United States Court Appeals,Federal Circuit. 1/26/87 MSPB, 31 M.S.P.R. 293 VACATED AND REMANDED	818 F.2d 878 COMeGYsV.v.A. 87-3018 UNitED sTaTES CouRt of AppEaLS,FEdeRal ciRCUIt. 1/26/87 mSPb, 31 M.s.P.r. 293 VAcAted anD REmAnDeD	818 F.2d 878 Comegysv.V.A. 87-3018 United States Court of Appeals,Federal Circuit. 1/26/87 MSPB, 31 M.S.P.R.293VACATED AND REMANDED	_818_ F.2d 878 Comegysv.V.A. 87-3018 United States Court _of_ _Appeals,Federal_ Circuit. 1/26/87 MSPB, 31 _M.S.P.R._ 293 _VACATED_ _AND_ REMANDED
J-S55030-18 2019 PA Super 59 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PRINCE ISAAC Appellant No. 389 EDA 2018 Appeal from the PCRA Order Entered December 21, 2017 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0002120-2007 BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E. OPINION BY STABILE, J.: FILED FEBRUARY 26, 2019 Appellant, Prince Isaac, appeals from the December 21, 2017 order denying relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. Appellant represented himself at trial after a defective waiver-of-counsel colloquy—the trial court never apprised Appellant of the elements of the charged offenses.1 Appointed direct appeal counsel did not raise this issue. On collateral review, Appellant claimed direct appeal counsel rendered ____________________________________________ 1 “To ensure that the defendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge […] shall elicit […] that the defendant understands the nature of the charges against the defendant and the elements of each of those charges[.]” Pa.R.Crim.P. 121(A)(2)(b). J-S55030-18 ineffective assistance. The PCRA court originally denied relief, but a three- judge panel of this Court reversed, concluding that the defective waiver colloquy was an issue of arguable merit.2 We remanded to the PCRA court for an assessment of counsel’s strategy and the prejudice, if any, to Appellant. The PCRA court once again denied relief, and this timely appeal followed. The prior panel quoted the underlying facts: [Appellant] and his brother and co-conspirator, Shamek Hynson [(Hynson)], had a powerful motive to kill the victim, Omar Reid [(the victim)], on October 18, 2004. The murder was an act of retaliation against [the victim] for an incident involving another one of their brothers—Ramek Neal—that took place nearly one year earlier. On November 5, 2003, at approximately 10:30 p.m., Neal and another individual broke into [the victim’s] apartment at 416 Victoria Drive, in the Regency Park complex located in Coatesville, Chester County, Pennsylvania. Neal brandished a pistol while demanding [the victim’s] property. [The victim] fought back and in self-defense shot Neal, leaving Neal paralyzed from the neck down. This November 2003 incident was the subject of subsequent family meetings attended by both [Appellant] and Hynson. On October 18, 2004, at approximately 11:00 p.m., [Appellant] drove Hynson to [the victim’s] apartment at 416 Victoria Drive in a Kia automobile that had been taken from a couple in Lancaster, Pennsylvania, to be used in the murder. Hynson got out of the Kia and knocked on [the victim]’s front door. As [the victim] opened the door, Hynson asked, “Are you Omar?” and then shot [the victim] six times. Shell casings were ejected from Hynson’s pistol and left at the murder scene. [The victim] collapsed and died on top of his five-year-old son, who had been on the living room floor near the front door. After the shooting, [Appellant] gestured to Hynson, from inside the Kia, to “hurry up.” This was observed by a witness looking out the window of her ____________________________________________ 2 We affirmed the PCRA court’s denial of relief on Appellant’s remaining issues, and our Supreme Court denied allowance of appeal. Direct appeal counsel’s handling of the waiver colloquy is the sole remaining issue. -2- J-S55030-18 apartment. Hynson ran to the Kia, which was waiting for him with the front passenger’s door open. After Hynson got into the Kia, he closed the door, and [Appellant] sped away from the scene. A police officer happened to be driving into the Regency Park complex when a 911 dispatcher advised him of the shooting. The officer spotted the Kia and gave chase. During the chase, the murder weapon—a Hi-Point .380—was thrown from the car into the brush next to a railroad track. Due to the wet roadway, [Appellant] lost control and crashed the Kia into a ditch. [Appellant] and Hynson fled in different directions, and neither was apprehended by police at that time. Other individuals in [Appellant’s] Buick Riviera (another getaway vehicle) had been waiting, as planned, near the Regency Park complex and observed the police chasing the Kia to the location in Coatesville where [Appellant] had earlier switched from driving his own car, the Buick, and begun driving the Kia. They picked up Hynson, and Hynson told them that he had “just shot a man,” that he and [Appellant] were being chased, and that [Appellant] was still running from the police. Hynson and others then drove around Coatesville looking for [Appellant] and trying to find the gun that had been “tossed” during the getaway chase. Neither [Appellant] nor the gun was located, so they visited Ramek Neal to advise him of what happened and then returned to Lancaster. [Appellant] also made his way back to Lancaster. When he arrived, he was wet, he had a gash on his head, and his clothing was ripped. [Appellant] told his friends that, while being chased by the police, he had crashed the Kia and then had to run on foot. [Appellant’s] fingerprints were found on the interior driver’s door window of the crashed Kia. DNA testing confirmed the presence of Hynson’s blood on the interior passenger’s side of the Kia. Gunshot residue was also found inside the Kia. The murder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [Appellant’s] escape route. That weapon was traced back to a straw purchase in North Carolina made by Tolanda Williams, the mother of Hynson’s child. Williams testified that during the week before the murder, she went with [Appellant] and Hynson to several pawn and gun shops in [Appellant’s] Buick, to be the straw purchaser of guns. The tag number of [Appellant’s] Buick was written down by one of the shop owners who became suspicious of one of the transactions. -3- J-S55030-18 During cross-examination, the gun shop owner identified [Appellant] as the driver of the Buick. The Hi-Point .380 murder weapon was also used by Hynson to shoot Edward Cameron in Lancaster at approximately 4:30 p.m. on October 18, 2004—less than seven hours before [the victim] was murdered in Coatesville. Shell casings from the two shootings were all matched to the Hi- Point .380 found along the escape route. Cell phone records indicated that [Appellant’s] cell phone was active and used in the Coatesville area during and after the time of the murder. Isaac, 2016 WL 5210891, at *1–2. At the conclusion of a six-day trial, the jury found Appellant guilty of first-degree murder and conspiracy. On July 8, 2009, the trial court sentenced Appellant to life in prison. This Court affirmed the judgment of sentence on direct appeal, and our Supreme Court denied allowance of appeal on August 12, 2012. Appellant filed this timely first PCRA petition on November 12, 2013.3 Presently, Appellant argues the PCRA court erred because counsel had no reasonable strategic basis for failing to raise the inadequate waiver colloquy on direct appeal, and because Appellant would have received a new trial had counsel challenged the defective waiver colloquy. Appellant’s Brief at 4. In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the	j - s55030 - 18 2019 pa super 59 commonwealth of pennsylvania in the superior court of pennsylvania appellee v. prince isaac appellant no. 389 eda 2018 appeal from the pcra order entered december 21, 2017 in the court of common pleas of chester county criminal division at no : cp - 15 - cr - 0002120 - 2007 before : olson, stabile, jj., and ford elliott, p. j. e. opinion by stabile, j. : filed february 26, 2019 appellant, prince isaac, appeals from the december 21, 2017 order denying relief pursuant to the post conviction relief act ( “ pcra ” ), 42 pa. c. s. a. § § 9541 - 46. we affirm. murray represented himself at trial after a defective waiver - of - counsel colloquy — the trial court never apprised appellant of the elements of the charged offenses. 1 appointed direct appeal counsel did not raise this issue. on collateral review, appellant claimed direct appeal counsel rendered _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 “ to ensure that the defendant ’ s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge [ … ] shall elicit [ ensure ] that the defendant understands the nature under the charges against the defendant and the elements of each of those charges [. ] ” pa. r. crim. p. 121 ( 3 ) ( 2 ) ( b ). j - s55030 - 18 ineffective assistance. the pcra court originally denied relief, but a three - judge panel of this court reversed, noting that a defective waiver colloquy was an issue having arguable merit. 2 we remanded to the pcra court for an assessment of daly ’ s strategy and the prejudice, if any, to appellant. the appeal court once again denied relief, and this timely appeal followed. the administrative panel quoted the underlying facts : [ appellant ] and his brother and co - conspirator, shamek hynson [ ( hynson ) ], had a powerful motive to kill the victim, omar reid [ ( the victim ) ], on october 18, 2004. the murder was an act of retaliation against [ the victim ] for an incident involving another one of their brothers — ramek neal — that took place nearly one year earlier. on november 5, 2003, at approximately 10 : 30 p. m., neal and another individual broke into [ the victim ’ s ] apartment at 416 victoria drive, in the regency park complex located in coatesville, chester county, pennsylvania. neal brandished a pistol while demanding [ the victim ’ s ] property. [ the victim ] fought back and in self - defense shot neal, leaving neal paralyzed from the neck down. this november 2003 incident was the subject of subsequent family meetings attended by both [ appellant ] and hynson. on october 18, 2004, at approximately 11 : 00 p. m., [ appellant ] drove hynson to [ the victim ’ s ] apartment at 416 victoria drive in a kia automobile that had been taken from a couple in lancaster, pennsylvania, to be used in the murder. hynson got out of the kia and knocked on [ the victim ] ’ s front door. as [ the victim ] opened the door, hynson asked, “ are you omar? ” and then shot [ the victim ] six times. shell casings were ejected from hynson ’ s pistol and left at the murder scene. [ the victim ] collapsed and died on top of his five - year - old son, who had been on the living room floor near the front door. after the shooting, [ appellant ] gestured to hynson, from inside the kia, to “ hurry up. ” this was observed by a witness looking out the window of her _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2 we affirmed the pcra court ’ s denial of relief on appellant ’ s remaining issues, and our supreme court denied allowance of appeal. direct appeal counsel ’ s handling of the waiver colloquy is the sole remaining issue. - 2 - j - s55030 - 18 apartment. hynson ran to the kia, which was waiting for him with the front passenger ’ s door open. after hynson got into the kia, he closed the door, and [ appellant ] sped away from the scene. a police officer happened to be driving into the regency park complex when a 911 dispatcher advised him of the shooting. the officer spotted the kia and gave chase. during the chase, the murder weapon — a hi - point. 380 — was thrown from the car into the brush next to a railroad track. due to the wet roadway, [ appellant ] lost control and crashed the kia into a ditch. [ appellant ] and hynson fled in different directions, and neither was apprehended by police at that time. other individuals in [ appellant ’ s ] buick riviera ( another getaway vehicle ) had been waiting, as planned, near the regency park complex and observed the police chasing the kia to the location in coatesville where [ appellant ] had earlier switched from driving his own car, the buick, and begun driving the kia. they picked up hynson, and hynson told them that he had “ just shot a man, ” that he and [ appellant ] were being chased, and that [ appellant ] was still running from the police. hynson and others then drove around coatesville looking for [ appellant ] and trying to find the gun that had been “ tossed ” during the getaway chase. neither [ appellant ] nor the gun was located, so they visited ramek neal to advise him of what happened and then returned to lancaster. [ appellant ] also made his way back to lancaster. when he arrived, he was wet, he had a gash on his head, and his clothing was ripped. [ appellant ] told his friends that, while being chased by the police, he had crashed the kia and then had to run on foot. [ appellant ’ s ] fingerprints were found on the interior driver ’ s door window of the crashed kia. dna testing confirmed the presence of hynson ’ s blood on the interior passenger ’ s side of the kia. gunshot residue was also found inside the kia. the murder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [ appellant ’ s ] escape route. that weapon was traced back to a straw purchase in north carolina made by tolanda williams, the mother of hynson ’ s child. williams testified that during the week before the murder, she went with [ appellant ] and hynson to several pawn and gun shops in [ appellant ’ s ] buick, to be the straw purchaser of guns. the tag number of [ appellant ’ s ] buick was written down by one of the shop owners who became suspicious of one of the transactions. - 3 - j - s55030 - 18 during cross - examination, the gun shop owner identified [ appellant ] as the driver of the buick. the hi - point. 380 murder weapon was also used by hynson to shoot edward cameron in lancaster at approximately 4 : 30 p. m. on october 18, 2004 — less than seven hours before [ the victim ] was murdered in coatesville. shell casings from the two shootings were all matched to the hi - point. 380 found along the escape route. cell phone records indicated that [ appellant ’ s ] cell phone was active and used in the coatesville area during and after the time of the murder. isaac, 2016 wl 5210891, at * 1 – 2. at the conclusion of a six - day trial, the jury found appellant guilty of first - degree murder and conspiracy. on july 8, 2009, the trial court sentenced appellant to life in prison. this court affirmed the judgment of sentence on direct appeal, and our supreme court denied allowance of appeal on august 12, 2012. appellant filed this timely first pcra petition on november 12, 2013. 3 presently, appellant argues the pcra court erred because counsel had no reasonable strategic basis for failing to raise the inadequate waiver colloquy on direct appeal, and because appellant would have received a new trial had counsel challenged the defective waiver colloquy. appellant ’ s brief at 4. in pcra appeals, our scope of review is limited to the findings of the pcra court and the evidence on the record of the pcra court ’ s hearing, viewed in the	J - S55030 - 18 2019 PA ShpeD 59 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PRINCE ISAAC Appellant No. 389 EDA 2018 Appeal from the PCRA Order Entered December 21, 2017 In the Court of Common Pleas of Chester County Criminal Division at No: CP - 15 - CR - 0002120 - 2007 BEFORE: OLSON, STABILE, JJ. , and FORD ELLIOTT, P. J. E. OPINION BY STABILE, J. : FILED FEBRUARY 26, 2019 Appellant, Prince Isaac, appeals from the December 21, 2017 order denying relief pursuant to the Post Conviction Relief Act (“ PCRA ” ), 42 Pa. C. S. A. § § O%41 - 46. We affirm. Appellant represented himself at trial after a defective waiver - of - counsel colloquy — the trial court never apprised Appellant of the elements of the charged offenses. 1 Appointed direct appeal counsel did not raise this issue. On collateral review, Appellant claimed direct appeal counsel rendered ____________________________________________ 1 “ To ensure that the xeRendant ’ s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge […] shall elicit […] that the defendant understands the nature of the charges against the defendant and the elements of each of those charges [.] ” Pa. R. Crim. P. 121 (A) (2) (b ). J - S55030 - 18 ineffective assistance. The PCRA court originally denied relief, but a three - judge panel of this Court reversed, concluding that the defective waiver colloquy was an issue of arguable merit. 2 We remanded to the PCRA court for an assessment of counsel ’ s strategy and the prejudice, if any, to Appellant. The PCRA court once again denied relief, and this timely appeal followed. The prior panel quoted the underlying facts: [Appellant] and his brother and co - conspirator, Shamek Hynson [( Hynson) ], had a powerful motive to kill the victim, Omar Reid [( the victim) ], on October 18, 2004. The murder was an act of retaliation against [the victim] for an incident involving another one of their brothers — Ramek Neal — that took place nearly one year earlier. On November 5, 2003, at approximately 10: 30 p. m. , Neal and another individual broke into [the victim ’ s] apartment at 416 ViDto3ia Drive, in the Regency Park complex located in Coatesville, Chester County, PennsylcSnia. Neal brandished a pistol while demanding [the victim ’ s] property. [The victim] fought back and in self - defense shot Neal, leaving Neal paralyzed from the neck down. This November 2003 incident was the subject of subsequent family meetings attended by both [Appellant] and Hynson. On October 18, 2004, at approximately 11: 00 p. m. , [Appellant] drove Hynson to [the victim ’ s] apartment at 416 Victoria Drive in a Kia automobile that had been taken from a couple in Lancaster, Pennsylvania, to be used in the murder. Hynson got out of the Kia and knocked on [the victim] ’ s front door. As [the victim] opened the door, Hynson asked, “ Are you Omar? ” and then shot [the victim] six times. Shell casings were ejected from Hynson ’ s pistol and left at the murder scsnF. [The victim] collapsed and died on top of his five - year - old son, who had been on the living room floor near the front door. After the shooting, [Appellant] gestured to Hynson, from inside the Kia, to “ hurry up. ” This was observed by a witness looking out the window of her ____________________________________________ 2 We affirmed the PCRA court ’ s denial of relief on Appellant ’ s remaining issues, and our Supreme Court denied allowance of appeal. Direct alpwal counsel ’ s handling of the waiver colloquy is the sole remaining issue. - 2 - J - S55030 - 18 apartment. Hynson ran to the Kia, which was waiting for him with the front passenger ’ s door open. After Hynson got into the Kia, he closed the door, and [AppellAnR] sped away from the scene. A police officer happened to be driving into the Regency Park complex when a 911 dispatcher advised him of the shooting. The officer spotted the Kia and fqve chase. During the chase, the murder weapon — a Hi - Point. 380 — was thrown from the car into the brush next to a railroad track. Due to the wet roadway, [Appellant] lost control and crashed the Kia into a ditch. [Appellant] and Hynson fled in different directions, and neither was apprehended by police at that time. Other individuals in [Appellant ’ s] Buick Riviera (another getaway vehicle) had been waiting, as planned, near the Regency Park complex and observed the police chasing the Kia to the location in Coatesville where [Appellant] had earlier switched from driving his own car, the Buick, and begun driving the Kia. They picked up Hynson, and Hynson told them that he had “ just shot a man, ” that he and [Appellant] were being chased, and that [Appellant] was still running from the police. Hynson and others then drove around Coatesville looking for [Appellant] and trying to find the gun that had been “ tossed ” during the getaway chase. Neither [Appellant] nor the gun was located, so they visited Ramek Neal to wdBise him of what happened and then returned to Lancaster. [Appellant] also made his way back to Lancaster. When he arrived, he was wet, he had a gash on his head, and his clothing was ripped. [Appellant] told his friends that, while being chased by the police, he had crashed the Kia and then had to run on foot. [Appellant ’ s] fingerprints were found on the interior driver ’ s door window of the crashed Kia. DNA testing confirmed the presence of Hynson ’ s blood on the interior passenger ’ s side of the Kia. Gunshot residue was also found inside the Kia. The murder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [Appellant ’ s] escape route. That weapon was traced back to a straw purchase in North Carolina made by Tolanda Williams, the mother of Hynson ’ s child. Williams testified that during the week before the murder, she went with [Appellant] and Hynson to several pawn and gun shops in [Appellant ’ s] Buick, to be the straw purchaser of guns. The tag number of [Appellant ’ s] Buick was written down by one of the shop owners who became suspicious of one of the transactions. - 3 - J - S55030 - 18 During cross - examination, the gun shop owner identified [Appellant] as the driver of the Buick. The Hi - Point. 380 murder weapon was also used by Hynson to shoot Edward Cameron in Lancaster at approximately 4: 30 p. m. on October 18, 2004 — less than seven hours before [the victim] was murdered in Coatesville. Shell casings from the two shootings were all matched to the Hi - Point. 380 found along the escape route. Cell phone records indicated that [Appellant ’ s] cell phone was active and used in the Coatesville area during and after the time of the murder. Isaac, 2016 WL 5210891, at * 1 – 2. At the conclusion of a six - day trial, the jury found Appellant guilty of first - degree murder and conspiracy. On July 8, 2009, the trial court sentenced Appellant to life in prison. This Court affirmed the judgment of sentence on direct appeal, and our Supreme Court denied allowance of appeal on August 12, 2012. Appellant filed this timely first PCRA petition on November 12, 2013. 3 Presently, Appellant argues the PCRA court erred because counsel had no reasonable strategic basis for failing to raise the inadequate waiver colloquy on direct appeal, and because Appellant would have received a new trial had counsel challenged the defective waiver colloquy. Appellant ’ s Brief at 4. In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court ’ s hearing, viewed in the	J-S55030-18 2019 PA 59 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT v. PRINCE ISAAC Appellant No. 389 EDA 2018 Appeal the PCRA Order Entered December 21, 2017 In the Court of Common Pleas Chester County Criminal at No: CP-15-CR-0002120-2007 BEFORE: STABILE, JJ., and FORD ELLIOTT, P.J.E. OPINION BY STABILE, J.: FILED FEBRUARY 26, 2019 Appellant, Prince Isaac, appeals from the December 21, 2017 order denying relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 §§ 9541-46. affirm. Appellant represented himself at trial after a defective waiver-of-counsel colloquy—the trial court apprised Appellant of the elements of the charged offenses.1 Appointed direct appeal counsel did not raise this issue. On collateral review, Appellant claimed direct appeal counsel ____________________________________________ “To ensure the defendant’s waiver of the right counsel is knowing, voluntary, and intelligent, the judge shall elicit […] that the defendant understands the nature of the charges against the defendant and the elements each of those charges[.]” 121(A)(2)(b). J-S55030-18 ineffective assistance. The PCRA court originally denied but a three- judge panel of this Court reversed, concluding the waiver colloquy was an issue of arguable merit.2 We remanded to the PCRA court for an assessment of counsel’s strategy and the prejudice, if any, to Appellant. The PCRA court once again relief, and this timely appeal followed. The panel quoted the underlying facts: [Appellant] and his brother and co-conspirator, Hynson [(Hynson)], had a powerful motive to kill the victim, Omar Reid [(the victim)], on October 18, 2004. The murder was an act of retaliation against [the victim] an incident involving another one of their brothers—Ramek Neal—that took place year earlier. On November 5, 2003, at p.m., Neal and another individual broke into [the victim’s] apartment at 416 Victoria in the complex located in Coatesville, Chester County, Pennsylvania. Neal brandished a while demanding [the victim’s] property. [The fought back and in shot Neal, Neal from the neck down. This November 2003 incident was the subject of subsequent meetings by both [Appellant] and Hynson. On October 18, 2004, at approximately 11:00 p.m., [Appellant] drove Hynson to [the victim’s] apartment at 416 Victoria Drive in Kia automobile that had been taken from a couple in Lancaster, to be used in the murder. Hynson got out the Kia knocked on [the victim]’s front door. As [the opened the Hynson asked, “Are you Omar?” and shot [the victim] times. Shell casings were ejected from Hynson’s and left at the murder scene. [The victim] collapsed and died on top his five-year-old son, who had been on the living room floor near the front door. After the shooting, [Appellant] gestured to Hynson, from inside the Kia, to “hurry up.” This was observed by a witness looking out the window her ____________________________________________ 2 We affirmed the PCRA court’s denial of relief on Appellant’s remaining issues, and our Court denied allowance of appeal. Direct appeal counsel’s of the waiver colloquy is the sole remaining issue. -2- J-S55030-18 apartment. Hynson to the Kia, which was waiting for him with the front passenger’s open. After Hynson got into the Kia, he the door, and [Appellant] sped away from the scene. A police officer happened be into the Regency Park complex when a 911 dispatcher advised of the shooting. The spotted the Kia and gave chase. During the the murder weapon—a Hi-Point .380—was thrown from the car into the brush next to a track. Due the wet roadway, [Appellant] lost control crashed the Kia into a ditch. [Appellant] and Hynson fled in different and neither was apprehended by police at that time. Other individuals in [Appellant’s] Buick Riviera (another getaway vehicle) been waiting, near the Regency complex and observed the police chasing Kia to location in Coatesville where [Appellant] had earlier switched from driving own car, Buick, and begun the Kia. They picked Hynson, and Hynson told them that he had “just shot a man,” that he and [Appellant] chased, and that [Appellant] was still running from the police. Hynson and others then drove around Coatesville looking for [Appellant] and trying to find the gun that had been “tossed” during the getaway chase. Neither [Appellant] nor the gun was located, so they Ramek Neal to advise him of what happened and then to Lancaster. [Appellant] also made his way back to Lancaster. When he he was wet, he had a gash on his head, and his clothing was ripped. [Appellant] told his friends that, while being by the police, he had crashed the Kia and then had to run on [Appellant’s] fingerprints found on the interior driver’s door window the crashed Kia. DNA confirmed presence of Hynson’s blood on the interior side of the Kia. Gunshot residue was also found inside the Kia. The murder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [Appellant’s] escape route. weapon was traced back to straw purchase in North Carolina made by Tolanda Williams, the mother of Hynson’s child. Williams testified that during the week before the she went with [Appellant] and Hynson to several pawn and gun shops in [Appellant’s] Buick, to be the straw purchaser of guns. The tag of [Appellant’s] Buick was down by one of the owners who became suspicious of one of the -3- J-S55030-18 During cross-examination, the shop owner identified [Appellant] as the driver of the Buick. The .380 murder weapon was also by Hynson to Cameron in Lancaster at approximately 4:30 p.m. on 18, 2004—less than seven before [the victim] was murdered in Coatesville. Shell casings from the two shootings were all matched to the Hi- Point .380 along the escape route. Cell phone records indicated that [Appellant’s] cell phone was active and used in the Coatesville area during and after the time of the murder. Isaac, 2016 WL 5210891, at *1–2. At the conclusion a trial, the jury found Appellant guilty of first-degree murder and On July 8, 2009, trial court sentenced Appellant to life in prison. This Court affirmed the of on direct appeal, and our Supreme Court allowance of appeal on 12, 2012. Appellant filed this timely first PCRA petition on November 12, 2013.3 Presently, argues the PCRA court erred because counsel had reasonable strategic basis for failing to raise the inadequate colloquy on direct appeal, and because Appellant would received a new trial had counsel challenged the defective waiver Appellant’s Brief 4. In PCRA appeals, our scope of review is limited to the findings of PCRA court and the on the of the PCRA court’s viewed in the	J-s55030-18 2019 PA Super 59 cOMmonwEALth of peNNsYLvaNia IN The SUpeRiOr CourT oF pennsYLVANiA aPPElLEE V. pRincE IsaAc aPpeLlaNT no. 389 eda 2018 APpeAL fROM tHE pcrA oRDEr eNTERED DecEMber 21, 2017 In The cOUrt Of COMmon PLeAS oF cHESTER CoUnTY CRImINal dIViSiON At no: cp-15-CR-0002120-2007 BefoRE: olsoN, sTaBILE, JJ., AnD Ford eLliotT, P.J.e. OPINIoN BY sTABIle, J.: fILED feBruaRY 26, 2019 ApPELlANT, PrINCe isAAC, AppeaLS fROm THE dECeMber 21, 2017 oRdeR dEnYinG RelieF pUrSUaNT to the POsT coNVICTioN REliEf ACt (“PCrA”), 42 Pa.C.s.A. §§ 9541-46. We AFfirM. appeLLaNT RePrEsEnTed hImsElF aT tRiAl AfTEr A DEfectiVE WAiVeR-OF-cOuNSeL COLloquY—The TriaL couRT nEvEr appRiSED ApPeLLANT Of tHE eLEMeNtS OF tHe CHaRGed OfFEnSeS.1 apPOinteD dIrECt appeAL coUNSel DID noT RaiSE This isSue. On cOLlaTeRAL REVieW, aPpELLAnt ClAImED diRECT AppeAl CouNseL rEndErED ____________________________________________ 1 “tO ensURe thAt thE defEndanT’S wAivER of THE RIght TO CouNsEl Is knowING, vOLuNtAry, anD InTellIgent, THe JudGE […] ShAll elicit […] ThAT ThE dEfendant unDeRsTANDs The nAture OF thE cHaRGeS AgAINst the dEfEnDAnT aNd The eLemenTs OF eAch oF tHoSe chaRGes[.]” Pa.r.cRim.P. 121(a)(2)(b). j-s55030-18 iNEFfectIve ASSisTaNcE. tHe PcrA cOuRt OriGINAlLy DeNieD relief, but a THREe- jUDGe Panel of tHIS couRT rEvErseD, COncLUDIng THat tHe DEFectiVE wAivEr COlLoQUY WaS aN IsSUe oF aRgUaBLE mERiT.2 WE rEMAnDEd To THe pcRA cOURt fOr AN ASsessMeNt of coUnsel’s sTRategy AND thE PREJUdIce, if aNy, TO appeLLAnT. THE PcRa CourT once aGaIN deNIEd relief, AND thIs TImeLy ApPEAL FOllowED. thE pRIOR panEL QUotED tHe uNderlYING Facts: [appelLANT] aNd HiS brOthER aND CO-CONSPirAtoR, SHAMek hYNsOn [(HYnsoN)], HaD A poweRFul MOTiVE to kIll The vICtiM, omaR rEiD [(THe VICtim)], oN OCTobEr 18, 2004. ThE MuRdER Was An Act oF RetaLiaTIOn AGaiNSt [the viCtiM] For aN InCIDeNt inVoLvinG AnOTHEr oNe oF thEiR broTHErS—rAMEK neAL—THAT tOOk PlaCe nEARlY ONe YeAr EArlIEr. ON NOveMbeR 5, 2003, at ApprOXiMaTeLy 10:30 P.m., NEAl AnD AnoTHEr IndIvidUAl BRoKe iNTo [THe vICtIm’s] ApARtmEnt At 416 viCTORia Drive, iN The rEgenCY PArk cOmpLex LOcAtED in COatEsviLle, ChesTER cOUntY, PEnnSYlvAnIa. neAl bRAnDishEd A pistOL WhIlE DemANdINg [THe vIcTIm’s] PROpErTy. [tHE VictiM] FOuGhT baCk AND in selF-DeFeNSe sHOt NEal, lEAViNG NeaL paRaLyZed fROm ThE NecK DOWN. tHIs nOVeMber 2003 INCiDent WAs THe SUbJeCt of subsequEnt fAMilY MeETInGs AtTendEd By boTH [aPPeLLaNt] aND hynsoN. ON oCtOBeR 18, 2004, At ApPRoxIMAtELY 11:00 P.m., [AppElLaNT] DrOve HYNSoN to [thE viCTIm’S] AParTMENt At 416 vIcToRia drIVE IN A KiA AutOmobIle tHat Had BEEN taKEN fROM a CoUPLe in lancAsTeR, PEnNsylvania, To bE used IN THe MurdEr. hyNsOn Got out OF THE Kia And KNocKeD ON [The viCtIM]’s fROnt Door. aS [ThE VIcTIM] OpEnED the DooR, hYnsoN aSkeD, “ArE You omAr?” AnD THEN shOT [THE VIcTIm] sIX tIMES. sHEll CAsIngS wERe EjeCteD frOm HYNSON’S PisTOL AND LEFT aT THE MUrDEr SCeNe. [tHE ViCTim] COLLaPsed And DIEd On tOp OF his fIVE-YEAR-Old Son, WhO HAd bEEN ON The LIvInG ROom fLOoR near tHE FroNT DOOr. AFTEr thE ShoOTiNG, [APPElLANt] GesTured tO hynSON, frOM inSiDe tHE KIa, to “HurrY UP.” tHis wAS ObSERveD bY A wiTnesS lOoKing OUT thE wIndow oF HER ____________________________________________ 2 we AfFirMed THE pCra couRT’S dEnIAL Of relIef ON aPPelLAnT’S remAiniNG ISSUeS, aNd oUr sUPREme couRT DenieD aLlOWANcE oF AppeAl. DiRECt apPeal counseL’s HaNDLinG Of The WaIVEr cOLloqUY Is the soLe REMaInInG ISsUE. -2- j-s55030-18 apaRtMeNT. HynSOn rAn To tHe kiA, wHich wAs WAiTiNg fOR hIm wiTh tHE FrONT PassENgeR’s dOOr Open. AFTer hYNSOn goT iNtO THE Kia, He CLOSED tHE dOOR, AND [ApPELlANT] spED Away from The sceNe. a PoLICE OFfiCEr haPpEneD to BE DRiVinG InTo tHE rEGEncy paRK cOmPLEX WheN a 911 DiSpatcher AdviSED HIM OF tHe sHoOTInG. THe OffICEr spotteD thE KIa and GAVE cHaSE. DUrIng thE CHAse, ThE MuRDeR weaPon—a Hi-PoiNt .380—WaS thRoWN frOM tHE caR inTo THe brUSh neXt tO a RAIlROAD tRAck. due to ThE WEt rOAdwAY, [aPpELLAnT] loST CONTRol AnD CRasHEd ThE KIA INtO a DITCH. [AppelLant] And HYNSoN Fled iN dIfFErent DIRectIONS, anD NeItHER WAs apPrEHended bY pOLIce at thAT TiME. oThER INDIviDuaLS iN [apPelLaNt’S] buIcK riViERa (AnOThER GetAwAY VEhiclE) haD bEeN waitINg, As PLAnned, nEAr thE reGEnCy pARK coMPlEx AND observEd thE polIcE CHaSIng The kiA to THE lOcation in coateSViLLe WhEre [AppElLAnT] had EaRlIeR swItcheD FrOm drIvinG hIS OWn CAR, THE buICk, And Begun drIvInG The kIa. thEY picKed Up HYNSOn, ANd HyNSoN TolD THEM tHAT HE hAd “JUsT Shot a MAn,” tHaT he aND [aPPelLanT] werE beINg ChasED, AnD that [ApPElLAnT] WAs StIll RUnNING frOm tHE poLice. hYNSOn and otHERs thEN drOVe ARound CoateSvilLE lOOKINg FOR [aPpELLaNt] ANd trYIng To FInD the GUN thAt HAd Been “TOSsed” during The getawaY cHASE. neItheR [appELLAnT] NoR ThE gUN was LOCAtEd, sO thEy vIsiTed RAMek NEAL tO adViSE HIM Of WHAt hapPEnED AND theN rETuRNed TO LaNCAster. [aPpEllanT] Also madE hiS WAy back tO LancAsteR. wHeN He ARRived, he WaS wET, he Had A GasH On his heAd, ANd HIS cLOTHing WAS rIPpeD. [apPelLAnt] tOLd HIs frIendS tHat, whILE BeiNG CHasEd BY The pOlICE, He HaD CRAshED THE kiA And theN HAD TO RuN ON foOt. [APpElLAnt’s] fiNGerPRinTs WERE fOuNd oN The intERIOR dRIveR’S dOoR WiNDow OF The CRaSHEd kia. DNA TeSTInG ConfIRmed thE PrESence oF HYNsoN’s bLOOD oN THE inTeRioR pAssEngEr’s SidE Of the Kia. gunShot resIDuE wAs ALso FOund iNsiDE The kIA. THe MuRder wEaPON wAs FoUNd alMosT a yeAR LAteR By a WOMaN wAlKing HeR DoG neAR THE RaILroAD TrackS alOnG [ApPElLANT’S] EsCaPe routE. THAT WEapoN WaS tRACeD BaCK tO a STRaW pUrchaSe IN noRtH cArOLINa mADe bY tOLaNda wiLliAMS, tHe mOTHEr Of hyNson’s CHILD. wILLIAMs tEstIfIeD That DUrInG tHE weEk BEFOre tHe muRder, sHE WenT With [appellANT] aND Hynson To SEvErAL PAWN ANd gun sHOPs In [apPeLLAnt’s] bUIck, TO be tHe STRaW puRchaSEr OF gUnS. tHE taG numBER Of [aPPELLAnt’S] buICk wAs WrItTeN dOWN bY one oF THE shOP oWNErS Who bEcAME sUSPIciOUs Of oNe oF the tRANSactIons. -3- J-S55030-18 duRiNG crosS-eXaMINAtiON, The guN Shop oWNEr IdEntIFIED [AppellAnT] As tHe drIvER of THe bUICK. The hi-pOINt .380 MuRDEr wEaPOn was alSO UsEd BY HYnSOn tO ShoOt edwaRd cAMeron in lancasTeR At apPROXiMaTeLy 4:30 p.M. oN octobEr 18, 2004—LesS THan SeVeN hOUrs beFOre [THE vicTIM] wAs MuRDErED iN coATESVille. shELL cAsInGs fROm tHe TWo shoOtINGS WERE alL matCheD to The hi- POInT .380 FoUNd aLonG thE EscaPE route. ceLl pHOne reCoRDs iNDIcaTed thAT [aPPelLANt’s] CElL pHoNe wAS AcTIVe aNd USEd iN tHE coAteSvILle arEa duriNG AND aFtEr the tiMe OF THE MURder. iSAAC, 2016 wL 5210891, At *1–2. at tHE CONcLUSIon Of A six-Day triaL, tHe jUry FOUnD aPPELLanT guilTy oF FiRsT-DEGReE MURDer aNd CONSPIrAcY. ON JUly 8, 2009, the TrIal CouRT sEntENCeD APpeLLaNt To LIFe in prIson. tHiS cOuRt aFfIrMEd The jUDgMent oF seNTeNcE on dIRECt appEal, AnD OUr SUpREmE couRT DENIed aLLOWANCe Of aPPEal On aUGUsT 12, 2012. APPEllAnT fiLED tHIs timELY fIrST PCra PETiTIoN on NoVEmber 12, 2013.3 PResEntLy, APpelLanT ArgUEs the PCRA coUrT errED BEcauSe couNsEl Had No rEasoNAble StRategIC BASIS FOR fAilINg To Raise The INAdeqUate WAivER coLlOquY on dIRect aPPEAl, and BECause aPPEllanT woulD HaVe RecEIVed A NEw tRIaL HAD COUNSeL chaLLengeD thE defeCTIVe WaIVEr collOqUy. aPPElLant’S BRIeF aT 4. In PCrA appeAlS, our ScOpe of ReViEW IS liMiTEd tO tHE FiNdIngs of The pcra CouRT ANd tHe eVIdEnCE on the ReCOrD oF THE pcra coURT’S hEArINg, VIEwEd iN tHe	J-S55030-18 2019PA Super 59 COMMONWEALTH OF PENNSYLVANIA IN THESUPERIOR COURT OFPENNSYLVANIA Appelleev. PRINCE ISAAC Appellant No. 389 EDA 2018 Appeal from the PCRA Order EnteredDecember21, 2017 In the Court of Common Pleas ofChester County Criminal Division at No: CP-15-CR-0002120-2007 BEFORE:OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E. OPINION BY STABILE, J.: FILED FEBRUARY 26, 2019 Appellant, Prince Isaac, appeals from the December 21, 2017 order denying relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. Appellant represented himself at trial after a defective waiver-of-counselcolloquy—the trialcourt never apprised Appellant oftheelements ofthe charged offenses.1 Appointed direct appeal counsel did not raise this issue. On collateral review, Appellant claimed direct appeal counsel rendered ____________________________________________ 1 “To ensurethat thedefendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, thejudge […]shall elicit […] that the defendantunderstands the nature of thecharges againstthe defendant and the elements of each of those charges[.]” Pa.R.Crim.P. 121(A)(2)(b). J-S55030-18 ineffective assistance. The PCRA court originally denied relief, but athree-judge panel of this Court reversed, concludingthat the defective waiver colloquywas an issue of arguable merit.2We remanded to the PCRA court for an assessment of counsel’sstrategy and the prejudice, if any, to Appellant. The PCRA courtonce again denied relief, and this timely appeal followed. The prior panelquotedthe underlying facts: [Appellant] and his brother and co-conspirator, Shamek Hynson [(Hynson)], had a powerful motiveto kill thevictim, Omar Reid [(the victim)], on October 18, 2004. Themurder was an actof retaliation against [thevictim] for an incident involving another one oftheir brothers—Ramek Neal—that took place nearly one year earlier.On November5, 2003, at approximately10:30 p.m., Neal and anotherindividual broke into[the victim’s] apartment at 416 Victoria Drive, in the Regency Park complex located in Coatesville, Chester County, Pennsylvania.Neal brandished a pistol while demanding [the victim’s] property. [The victim] fought back and in self-defense shotNeal, leaving Neal paralyzed from the neck down. This November2003 incident was the subjectof subsequent familymeetings attended by both [Appellant] and Hynson. On October18, 2004, at approximately 11:00p.m., [Appellant]drove Hynson to[the victim’s] apartment at 416 Victoria Drive in a Kia automobile that had been taken from a couple inLancaster, Pennsylvania, tobe used inthemurder. Hynson got out of the Kia and knocked on [the victim]’s front door. As [the victim]opened the door, Hynson asked, “Are you Omar?” and then shot [the victim] six times.Shell casings were ejected from Hynson’spistol and left at the murder scene. [The victim] collapsed and died on top ofhis five-year-old son, who had been on the livingroom floornear thefront door. After the shooting, [Appellant] gestured to Hynson,from inside the Kia, to “hurry up.” This was observed by a witness looking out the window ofher ____________________________________________ 2 We affirmed the PCRA court’s denial of reliefon Appellant’s remaining issues, and our Supreme Court denied allowance of appeal. Direct appeal counsel’s handling of thewaiver colloquy is the sole remaining issue. -2- J-S55030-18 apartment. Hynson ranto the Kia, which was waiting for him withthe front passenger’s door open. After Hynson gotinto the Kia, he closed the door, and [Appellant]sped away from the scene. A police officer happened tobe driving into the Regency Parkcomplex when a 911 dispatcher advised him of the shooting. The officer spotted the Kiaand gave chase. During the chase, themurder weapon—a Hi-Point .380—was thrown from the car into the brush next to a railroad track. Dueto the wet roadway, [Appellant]lost controland crashed the Kia into a ditch. [Appellant] and Hynson fled in different directions, and neitherwas apprehended by police at that time. Other individualsin [Appellant’s]BuickRiviera (another getaway vehicle) had been waiting, as planned, near the Regency Parkcomplex and observedthe police chasing the Kia to the location in Coatesville where [Appellant] had earlier switched from driving his own car, the Buick, and begun driving the Kia. They picked up Hynson, and Hynson told them that he had “just shot a man,”thathe and [Appellant]were being chased, and that [Appellant] wasstillrunning from the police. Hynson andothers then drove aroundCoatesville looking for [Appellant] and trying tofind thegun that had been “tossed” during the getaway chase. Neither [Appellant] nor the gun was located, so they visited Ramek Neal to advise him of what happened and thenreturned to Lancaster. [Appellant] also made his way back to Lancaster. When hearrived, he was wet,he had a gash on his head, and his clothing was ripped. [Appellant]told his friends that, while being chased by thepolice, he had crashed the Kia and thenhad to run on foot. [Appellant’s] fingerprints were found on the interior driver’s door window of the crashed Kia.DNA testing confirmedthe presence of Hynson’s blood onthe interior passenger’s sideof the Kia.Gunshot residue was also found inside the Kia. Themurder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [Appellant’s] escape route. That weapon was traced back to a straw purchase in North Carolina made by Tolanda Williams,the mother of Hynson’s child. Williams testified that during the week before the murder, shewent with [Appellant] and Hynson to several pawn and gunshops in [Appellant’s]Buick, to be the straw purchaserofguns. The tag number of [Appellant’s] Buick was written down by one of the shop ownerswho becamesuspicious ofone of the transactions. -3- J-S55030-18 During cross-examination, the gun shop owner identified [Appellant] asthe driver of the Buick. The Hi-Point .380 murder weapon was also used by Hynson to shoot Edward Cameron in Lancasterat approximately 4:30 p.m. on October 18, 2004—less than seven hours before [the victim] was murdered in Coatesville.Shellcasings fromthe two shootings wereallmatched to the Hi- Point.380 found along the escaperoute. Cellphone recordsindicated that [Appellant’s] cell phone was active and used in the Coatesville areaduring and after the time of the murder. Isaac, 2016WL 5210891, at*1–2. At theconclusion of a six-day trial, the jury found Appellant guilty of first-degreemurder andconspiracy. On July 8, 2009, the trialcourt sentenced Appellant to lifein prison. This Court affirmedthe judgment ofsentence on direct appeal, and our Supreme Court denied allowance of appeal on August 12, 2012. Appellant filed this timelyfirst PCRA petition on November 12, 2013.3 Presently,Appellantargues the PCRA court erred because counsel had no reasonablestrategic basis for failingto raise the inadequatewaiver colloquyon direct appeal, and because Appellantwould have received anewtrialhad counselchallenged the defectivewaiver colloquy. Appellant’s Brief at 4. In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the	J-S55030-18 2019 PA Super 59 COMMONWEALTH _OF_ PENNSYLVANIA _IN_ THE SUPERIOR COURT OF _PENNSYLVANIA_ Appellee v. PRINCE ISAAC Appellant No. 389 EDA 2018 Appeal from the PCRA _Order_ Entered _December_ 21, _2017_ In _the_ _Court_ of Common Pleas of Chester County Criminal Division at _No:_ CP-15-CR-0002120-2007 BEFORE: OLSON, STABILE, JJ., _and_ _FORD_ ELLIOTT, P.J.E. _OPINION_ BY STABILE, _J.:_ FILED FEBRUARY 26, 2019 _Appellant,_ _Prince_ _Isaac,_ appeals from the December 21, 2017 order denying relief _pursuant_ _to_ the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. Appellant represented _himself_ at trial after _a_ _defective_ waiver-of-counsel colloquy—the trial court never apprised Appellant _of_ the elements of the charged _offenses.1_ Appointed direct appeal counsel did not raise this issue. On collateral review, _Appellant_ claimed _direct_ appeal counsel rendered ____________________________________________ 1 “To ensure that the _defendant’s_ waiver _of_ the right _to_ counsel _is_ knowing, voluntary, and intelligent, the judge […] shall elicit […] that the defendant understands _the_ nature of _the_ charges against the defendant and the elements of each of those charges[.]” Pa.R.Crim.P. _121(A)(2)(b)._ J-S55030-18 ineffective assistance. _The_ PCRA court _originally_ denied relief, but a three- judge panel of _this_ Court reversed, concluding that the defective waiver colloquy _was_ _an_ _issue_ of arguable merit.2 We _remanded_ to the PCRA court _for_ an assessment of counsel’s strategy and the prejudice, _if_ _any,_ _to_ Appellant. The PCRA court once again denied relief, _and_ _this_ timely appeal _followed._ The prior panel quoted the underlying facts: [Appellant] and _his_ brother and _co-conspirator,_ Shamek Hynson [(Hynson)], had a powerful motive to kill the victim, _Omar_ Reid [(the _victim)],_ on October 18, 2004. The murder was an act of retaliation against [the _victim]_ for an incident _involving_ _another_ one of their brothers—Ramek Neal—that _took_ place nearly one year earlier. On November _5,_ _2003,_ _at_ approximately 10:30 p.m., Neal and another individual broke into _[the_ victim’s] apartment at _416_ Victoria Drive, _in_ the Regency Park complex located in Coatesville, _Chester_ _County,_ Pennsylvania. Neal brandished _a_ _pistol_ while _demanding_ [the victim’s] property. _[The_ _victim]_ fought back and in self-defense _shot_ Neal, leaving Neal _paralyzed_ _from_ _the_ neck _down._ This _November_ 2003 _incident_ was the subject _of_ subsequent family _meetings_ attended by both [Appellant] and Hynson. _On_ _October_ 18, 2004, _at_ approximately 11:00 p.m., [Appellant] drove Hynson to _[the_ _victim’s]_ apartment at 416 _Victoria_ Drive in a _Kia_ automobile that _had_ been taken from a couple in _Lancaster,_ Pennsylvania, to be used in the murder. _Hynson_ got out of the Kia and knocked on [the _victim]’s_ front door. As _[the_ _victim]_ opened the _door,_ Hynson asked, “Are _you_ Omar?” _and_ then _shot_ [the _victim]_ six times. _Shell_ casings were ejected from Hynson’s pistol and left at _the_ murder scene. [The victim] _collapsed_ and _died_ on top of his five-year-old _son,_ who had _been_ on the _living_ _room_ floor near the front door. After the shooting, [Appellant] _gestured_ to Hynson, _from_ inside the Kia, to _“hurry_ up.” This _was_ observed by a witness looking out the window of _her_ ____________________________________________ 2 _We_ affirmed the PCRA court’s denial of relief on Appellant’s remaining issues, _and_ our Supreme Court denied allowance of appeal. Direct appeal counsel’s handling of _the_ waiver colloquy is the sole remaining issue. _-2-_ J-S55030-18 apartment. _Hynson_ ran to _the_ _Kia,_ which was waiting for _him_ with the front passenger’s door open. After Hynson _got_ into the _Kia,_ _he_ closed _the_ _door,_ and [Appellant] sped away from the scene. A police officer happened to be driving into _the_ Regency Park complex when a 911 dispatcher advised him _of_ _the_ shooting. The officer spotted the Kia and gave chase. During the chase, the _murder_ weapon—a Hi-Point _.380—was_ thrown from the car into the brush next _to_ a _railroad_ track. Due to the wet roadway, [Appellant] lost _control_ and crashed the Kia into _a_ ditch. [Appellant] and Hynson _fled_ in different directions, and neither _was_ apprehended by police at that time. _Other_ individuals _in_ [Appellant’s] Buick Riviera (another getaway _vehicle)_ _had_ been waiting, _as_ planned, _near_ the Regency Park complex and observed the police chasing the _Kia_ _to_ the _location_ in Coatesville where [Appellant] had earlier switched from driving his own car, _the_ _Buick,_ and begun driving the Kia. _They_ picked _up_ Hynson, and Hynson _told_ them _that_ _he_ had _“just_ _shot_ a man,” that he and [Appellant] were _being_ _chased,_ and that [Appellant] was still running from the police. Hynson and _others_ _then_ drove around Coatesville looking _for_ [Appellant] and trying to _find_ the _gun_ that _had_ been “tossed” during _the_ _getaway_ chase. Neither [Appellant] nor the gun was located, so they visited Ramek _Neal_ _to_ advise _him_ of _what_ happened and then returned _to_ Lancaster. [Appellant] also made his way back _to_ Lancaster. When he arrived, _he_ was wet, he had a gash on his head, and his _clothing_ _was_ ripped. [Appellant] told his friends that, while being _chased_ by the police, he had crashed the Kia and then had to run on foot. [Appellant’s] fingerprints _were_ found on the interior _driver’s_ _door_ window _of_ the crashed Kia. DNA testing confirmed the presence _of_ _Hynson’s_ blood on the _interior_ passenger’s side of the _Kia._ _Gunshot_ residue was also found inside the Kia. The murder weapon was _found_ _almost_ _a_ year later by a woman walking her _dog_ near the railroad tracks along [Appellant’s] escape route. That weapon _was_ traced back to _a_ straw purchase in North _Carolina_ made by Tolanda Williams, the mother of _Hynson’s_ _child._ Williams testified that during the week before the _murder,_ she went with [Appellant] and Hynson _to_ _several_ pawn _and_ gun shops in [Appellant’s] Buick, to be the straw purchaser of guns. The tag number _of_ [Appellant’s] Buick was _written_ down by one _of_ _the_ _shop_ owners who _became_ suspicious of one of the transactions. -3- J-S55030-18 During cross-examination, the gun shop owner identified [Appellant] as the driver of the Buick. The Hi-Point _.380_ murder weapon was also _used_ by Hynson _to_ shoot _Edward_ Cameron _in_ Lancaster at approximately 4:30 p.m. on October 18, 2004—less than seven hours before [the victim] was murdered in _Coatesville._ _Shell_ _casings_ from the two shootings were all matched to _the_ Hi- Point .380 _found_ _along_ _the_ escape route. Cell phone records _indicated_ that [Appellant’s] cell phone was active and used _in_ the _Coatesville_ _area_ during _and_ _after_ the time of the murder. Isaac, 2016 _WL_ 5210891, at _*1–2._ At the conclusion of a six-day trial, the jury found _Appellant_ guilty of first-degree _murder_ and conspiracy. On July _8,_ _2009,_ the trial court sentenced Appellant to life in prison. This Court affirmed the _judgment_ _of_ _sentence_ on _direct_ appeal, _and_ our _Supreme_ Court denied allowance _of_ appeal on _August_ 12, 2012. Appellant filed this timely first PCRA _petition_ _on_ November 12, 2013.3 Presently, Appellant argues the PCRA _court_ erred because counsel had no _reasonable_ _strategic_ basis _for_ failing to raise the inadequate waiver colloquy on direct appeal, and because Appellant would have received a new trial had counsel challenged the defective _waiver_ _colloquy._ Appellant’s Brief at _4._ In PCRA appeals, our scope of review is limited _to_ the findings of the _PCRA_ _court_ and the evidence on the record of the PCRA court’s hearing, viewed in the
694 So.2d 674 (1997) THE MISSISSIPPI BAR v. Jimmy D. McGUIRE. No. 94-BD-00520-SCT. Supreme Court of Mississippi. May 15, 1997. ORDER This matter is before the Court upon the Motion for Indefinite Suspension Pending Appeal filed by the Mississippi Bar. The complaint involves McGuire's conviction of the crime of filing a false currency reporting form in violation of 26 U.S.C.A. §§ 6050I(f)(1)(B), 7206(1). This Court entered its order on December 15, 1994, granting the Bar's request for indefinite suspension pending appeal. On January 21, 1997, the Bar provided certification that the Fifth Circuit Court of Appeals affirmed the judgment of the District Court, which affirmed McGuire's conviction, and issued the mandate on October 31, 1996. This Court finds that McGuire has been adjudicated guilty of the offense of filing false currency reporting forms, a felony, and that pursuant to Rule 6, Rules of Discipline, he should be disbarred. IT IS THEREFORE ORDERED as follows: 1. Jimmy D. McGuire be, and hereby is, DISBARRED from the practice of law. 2. This order shall constitute notice of disbarment in this cause. 3. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Circuit Court Judges and Chancellors in and for Harrison County, Mississippi, and the Senior Judges of each court shall enter this order upon the minutes of their respective courts. 4. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Clerks of the United States District Courts in and for Mississippi, to the Clerk of the United States Fifth Circuit Court of Appeals, and to the Clerk of the Supreme Court. 5. Costs of the formal complaint should be, and hereby are, assessed against Jimmy D. McGuire.	694 so. 2d 674 ( 1997 ) the mississippi bar v. jimmy d. mcguire. no. 94 - bd - 00520 - sct. supreme court of iowa. may 15, 1997. order this matter is before the court upon the motion for indefinite suspension pending appeal filed by the mississippi bar. the complaint involves mcguire ' s conviction of the crime of filing a false debt reporting form in violation of 26 u. s. c. a. § § 6050i ( f ) ( 1 ) ( b ), 7206 ( 1 ). this court entered its order on december 3, 1994, granting the bar ' s request for indefinite suspension pending appeal. on january 21, 1997, the bar provided certification that the fifth circuit court of appeals affirmed the judgment of the district court, which affirmed mcguire ' s conviction, and extended the mandate on october 31, 1996. this court finds that mcguire has been equally guilty of the offense of filing false currency reporting forms, and felony, namely that pursuant to rule 6, rules of discipline, he will be disbarred. it is therefore ordered as follows : 1. jimmy d. mcguire be, and hereby is, disbarred from the practice of law. 2. this order shall constitute notice of disbarment upon this cause. 3. the clerk of the supreme court of mississippi shall immediately forward an attested copy of this order to the circuit court judges and clerks in and for harrison county, mississippi, and the senior judges of each court shall enter this order upon the minutes of their respective courts. 4. the clerk of the supreme court of mississippi shall immediately forward an attested copy of this order to the clerks of the united states district courts in and for mississippi, to the clerk of the united states fifth circuit court of appeals, and to the clerk of the supreme court. 5. costs of the formal complaint should be, and hereby are, assessed against jimmy d. mcguire.	694 So. 2d 674 (1997) THE MISSISSIPPI BAR v. Jimmy D. McGUIRE. No. 94 - BD - 00520 - SCT. Supreme Court of Mississippi. May 15, 1997. ORDER This matter is before the Court upon the Motion for Indefinite Suspension Pending Appeal filed by the Mississippi Bar. The complaint involves McGuire ' s conviction of the crime of filing a false currency reporting form in violation of 26 U. S. C. A. § § 6050I (f) (1) (B ), 7206 (1 ). This Court entered its order on December 15, 1994, granting the Bar ' s requeZ^ for indefinite suspension pending appeal. On January 21, 1997, the Bar provided certification that the Fifth Circuit CoHrr of Appeals affirmed the judgment of the District Court, which QffirmFd McGuire ' s conviction, and issued the mandate on October 31, 1996. This Court finds that McGuire has been adjudicated guilty of the ofBens@ of filing false currency reporting forms, a felony, and that pursuant to Rule 6, Rules of Discipline, he should be disbarred. IT IS THEREFORE ORDERED as follows: 1. Jimmy D. McGuire be, and hereby is, DISBARRED from the practice of law. 2. This order shall constitute notice of disbarment in this cause. 3. The Clerk of the Supr2mr Xo7rt of Mississippi shall immediately forward an attested copy of this Order to the Circuit Court Judges and Chancellors in and for Harrison County, Mississippi, and the Senior Judges of each court shall FJter this order upon the minutes of their respective courts. 4. The Xle5k of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the dlSrks of the United States District Courts in and for Mississippi, to the Clerk of the United States Fifth Circuit Court of Appeals, and to the Clerk of the SIpfeme Court. 5. Costs of the formal complaint should be, and hereby are, assessed against Jimmy D. McGuire.	694 674 (1997) THE MISSISSIPPI BAR v. D. No. 94-BD-00520-SCT. Supreme Court of Mississippi. May ORDER This matter is before the Court upon the Motion for Indefinite Suspension Pending Appeal filed by the Mississippi Bar. The complaint involves McGuire's conviction of the crime of filing a false currency reporting in violation of 26 U.S.C.A. §§ 6050I(f)(1)(B), 7206(1). Court entered its order on December 15, 1994, granting the request for indefinite suspension pending appeal. On January 21, 1997, the Bar provided certification that the Fifth Circuit Court of Appeals affirmed the judgment of the District Court, affirmed McGuire's conviction, and issued the mandate on October 31, 1996. Court that McGuire has been adjudicated guilty of the offense of filing false currency reporting forms, a felony, and that pursuant to Rule 6, Rules of Discipline, he should be disbarred. IT IS THEREFORE ORDERED follows: 1. Jimmy D. McGuire be, and hereby is, DISBARRED from the practice of law. 2. This order shall notice of disbarment in this cause. 3. The Clerk Supreme Court Mississippi shall immediately forward an attested copy of Order to the Circuit Court Judges and Chancellors in for Harrison County, Mississippi, and the Senior Judges of each court shall enter order upon the of respective courts. 4. The of the Court Mississippi shall immediately forward an attested copy of this to the Clerks of the United States District Courts in and for Mississippi, to the Clerk the United States Fifth Circuit Court of Appeals, and to the Clerk the Supreme Court. 5. Costs of formal complaint should and hereby are, assessed against Jimmy D. McGuire.	694 SO.2D 674 (1997) tHe mIsSiSsipPI bar v. Jimmy D. mCguIrE. no. 94-bd-00520-SCt. supReME COUrt Of miSSiSsIppI. MAY 15, 1997. OrDER ThiS mATTer is BeFORe tHE CoUrt UPon The mOTIoN FoR INdEFiNITE suspEnsIon PENDiNg appeal fiLeD by THE MisSISsiPpI BAr. tHE COMPlAINt invOlVeS McGuire's CONViCtiON oF tHE crIME oF FiLINg a falSe cuRRenCy RepOrTing forM In vIOlaTiON Of 26 U.s.C.A. §§ 6050i(F)(1)(B), 7206(1). thIS cOurt EnTEREd iTS oRDEr On deCEMbER 15, 1994, grANtiNg ThE baR's REQUEsT FOr indEFInITe SUspensioN pEnding aPpeAl. ON JAnuArY 21, 1997, THE BaR PrOVIDeD cERtIfIcATioN THAT THE FiFtH cIRCuiT CoURT OF aPpEALS AFFirMEd the JuDgMENt oF thE DiSTriCt cOurT, WhICH aFfIrMeD McgUirE'S COnviCtion, AnD ISsuED THE maNDATe oN OCTober 31, 1996. THis coURt fiNDs thAT mCgUIRe HAs beEN ADJudiCAtEd guilTy Of tHE OffEnse of fiLiNG fAlse cURrEnCy RePORtING fOrMS, a FelONY, And ThAt pURSUAnt TO ruLe 6, RulES OF diSCiPLinE, HE ShOUld be DisbarreD. IT iS tHErEFoRE OrdErEd AS fOlLows: 1. JiMMY D. mCguiRe Be, And hEreBY IS, dISBarrED froM THe PracTiCE of LaW. 2. tHiS oRdeR shaLl coNstiTUte NoTICe OF DiSbArmeNT IN THIs CauSe. 3. ThE ClERk OF thE SUpReME cOurt oF MIssISsIPPi ShALl ImmedIAtElY foRwaRD an aTTestED cOpy of thiS OrDer tO tHE CIRCuIt COurT JudGes AnD CHANcEllORS In AND for hARrIson CoUntY, mississippi, AND the SEnIOr jUDGeS oF eaCh COurt shAll eNTer thIs ORDer UpoN THE mInUTes of tHeIr rEspeCTiVE couRtS. 4. the clerK oF tHE sUPrEmE cOURt Of MiSsisSIPpI sHaLl ImmeDIatelY fOrWard an ATTEstED COPY of tHiS orDer tO tHe clerks Of the uNiTED StAteS disTRIct CourTs in aNd For miSSissIppi, tO THe cLeRk of The UniTED StaTEs FIftH cIRcUIT couRT Of AppEAlS, AND To The cLerK OF thE SuPREme cOUrt. 5. cOSTs of THE Formal cOMPLAInt SHoULd bE, And herEby ARe, ASseSSED aGaiNsT jIMMy d. mCguIrE.	694 So.2d 674 (1997) THE MISSISSIPPI BAR v.Jimmy D.McGUIRE. No. 94-BD-00520-SCT. Supreme CourtofMississippi. May 15, 1997. ORDERThis matter isbefore the Court upon the MotionforIndefinite Suspension Pending Appealfiled by the Mississippi Bar. The complaint involves McGuire's convictionof the crime of filing a false currency reporting form in violation of 26 U.S.C.A. §§ 6050I(f)(1)(B), 7206(1). ThisCourtentered its order on December 15, 1994, granting the Bar's requestfor indefinite suspension pending appeal. On January 21, 1997,theBar provided certification that the Fifth Circuit Courtof Appeals affirmed the judgment of the District Court, which affirmedMcGuire's conviction, and issued the mandate on October 31, 1996. This Court finds that McGuire has been adjudicated guilty of the offense of filing false currency reporting forms, a felony, and that pursuant to Rule6, Rules of Discipline, he should be disbarred.IT IS THEREFORE ORDERED as follows: 1. Jimmy D. McGuire be, and herebyis, DISBARREDfrom the practice of law. 2. Thisorder shallconstitute notice of disbarment in this cause. 3.The Clerk oftheSupremeCourt of Mississippi shall immediately forwardan attested copy of this Order to the Circuit Court Judges and Chancellors inand forHarrison County, Mississippi, and the Senior Judges of each court shall enter this orderupon the minutes of their respective courts. 4. The Clerk ofthe Supreme CourtofMississippi shall immediately forward an attested copy ofthis Order to the Clerks of the UnitedStates District Courts in and forMississippi, tothe Clerk of the UnitedStates Fifth Circuit Courtof Appeals, and to the Clerk of the Supreme Court. 5. Costs oftheformal complaintshould be, and hereby are, assessed against Jimmy D. McGuire.	694 So.2d 674 _(1997)_ _THE_ MISSISSIPPI BAR _v._ _Jimmy_ D. McGUIRE. No. 94-BD-00520-SCT. Supreme Court of Mississippi. May _15,_ 1997. ORDER This matter _is_ before _the_ Court upon the Motion for Indefinite _Suspension_ Pending Appeal _filed_ by _the_ Mississippi Bar. The complaint involves McGuire's conviction of the crime of filing a _false_ currency reporting _form_ _in_ violation of 26 U.S.C.A. §§ _6050I(f)(1)(B),_ 7206(1). _This_ _Court_ entered its order on December 15, 1994, _granting_ the Bar's _request_ for indefinite suspension pending appeal. On January _21,_ 1997, _the_ Bar provided _certification_ _that_ the Fifth Circuit Court of Appeals _affirmed_ the _judgment_ _of_ the _District_ Court, _which_ affirmed McGuire's _conviction,_ and issued the mandate on October 31, 1996. This Court finds that McGuire has been adjudicated guilty of _the_ _offense_ of filing false _currency_ reporting forms, _a_ felony, _and_ _that_ pursuant to Rule 6, Rules _of_ Discipline, _he_ should be disbarred. IT _IS_ THEREFORE ORDERED as _follows:_ 1. Jimmy D. McGuire be, and hereby _is,_ _DISBARRED_ _from_ the practice _of_ _law._ 2. _This_ order shall constitute notice of disbarment in _this_ cause. 3. _The_ Clerk of the _Supreme_ _Court_ _of_ _Mississippi_ shall immediately forward _an_ attested _copy_ _of_ _this_ Order to the Circuit Court Judges and Chancellors _in_ _and_ _for_ _Harrison_ County, Mississippi, and the Senior Judges of each _court_ shall enter _this_ order upon the _minutes_ of _their_ respective courts. 4. The _Clerk_ of the Supreme _Court_ _of_ Mississippi _shall_ immediately forward an attested copy of _this_ Order to the _Clerks_ of the United States District Courts in and _for_ Mississippi, to the Clerk _of_ the _United_ States Fifth Circuit Court of Appeals, _and_ to the Clerk of the Supreme _Court._ 5. Costs of the _formal_ complaint should be, and _hereby_ are, assessed _against_ Jimmy D. _McGuire._
Order Michigan Supreme Court Lansing, Michigan September 30, 2013 Robert P. Young, Jr., Chief Justice 146898 Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack SHERELL STANLEY, Personal David F. Viviano, Representative of the ESTATE OF Justices SHERIDA STANLEY, Plaintiff-Appellee, v SC: 146898 COA: 301237 Kalamazoo CC: 2005-000601-NH KRISHNA MOHAN JAIN, M.D., Defendant-Appellant, and BORGESS MEDICAL CENTER, E. ANDERSON, C.R. BEGEMAN, T. BENSCHEL, M. GALLAGHER, A. KENDALL, SUZANNE SACKETT-MUMA, D. E. PEAKE, J. SHINABARGER, Z. SMITH, CHRIS THOMAS, and L. VROEGINDENWEY, Defendants. _____________________________________/ On order of the Court, the application for leave to appeal the February 19, 2013 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 30, 2013 h0923 Clerk	order michigan supreme court lansing, michigan september 30, 2013 robert p. young, jr., chief justice 146898 michael f. cavanagh stephen j. markman mary beth kelly brian k. zahra bridget m. mccormack sherell stanley, personal david g. viviano, representative of the estate of justices sherida stanley, plaintiff - appellee, v sc : 146898 coa : 301237 kalamazoo cc : 999 - 000601 - nh krishna mohan jain, m. d., defendant - appellant, and borgess medical center, e. anderson, c. r. begeman, t. benschel, m. gallagher, a. wright, suzanne sackett - muma, d. e. peake, j. ellis, z. smith, chris thomas, and l. vroegindenwey, defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ / on order of the court, the application for leave to appeal the february 19, 2013 judgment of the court of appeals is considered, and it is denied, because we are not persuaded that the questions raised should be reviewed by this court. i, larry h. royster, clerk of the michigan district court, certify that the assertion is now true and complete copy of the order entered at the decision of the court. september 30, 2013 h0923 clerk	Order Michigan S tlreme Court Lansing, Michigan September 30, 2013 Robert P. Young, Jr. , Cg*ef Justice 146898 Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack SHERELL STANLEY, Personal David F. Viviano, Representative of the ESTATE OF Justices SHERIDA STANLEY, Plaintiff - A(pellDe, v SC: 146898 COA: E01337 Kalamazoo CC: 2005 - 000601 - NH KRISHNA MOHQJ JAIN, M. D. , Defendant - Appellant, and BORGESS MEDICAL CENTER, E. ANDERSON, C. R. BEGEMAN, T. BENSCHEL, M. GALLAGHER, A. KENDALL, SUZANNE SACKETT - MUMA, D. E. PEAKE, J. SnINABARG3R, Z. SMITH, CuRjS THOMAS, and L. VROEGINDENWEY, Defendants. _____________________________________ / On order of the Court, the application for leave to appeal the February 19, 2013 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented WhoulX be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Clurr, certify tga% the foregoing is a true and complete copy of the order entered at the direction of the Court. September 30, 2013 h0923 Clerk	Order Michigan Supreme Court Lansing, Michigan September 2013 Robert P. Young, Jr., Chief Justice Michael F. Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack SHERELL STANLEY, Personal David F. Viviano, Representative of the ESTATE OF Justices SHERIDA STANLEY, Plaintiff-Appellee, v SC: 146898 COA: 301237 Kalamazoo CC: 2005-000601-NH MOHAN JAIN, M.D., Defendant-Appellant, and BORGESS MEDICAL CENTER, E. C.R. BEGEMAN, T. BENSCHEL, M. A. KENDALL, SUZANNE SACKETT-MUMA, D. E. PEAKE, J. SHINABARGER, Z. SMITH, CHRIS THOMAS, and L. VROEGINDENWEY, Defendants. On order of the Court, the application for leave appeal February 19, 2013 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete of the order entered at the of Court. 2013 Clerk	ordER mIcHIGaN SuPReMe cOUrT LansING, MIChIGAn sEPTEMbER 30, 2013 RoberT P. YOunG, Jr., CHieF JUstICe 146898 MICHAeL f. cAVAnagh sTEPhEn J. MARKmaN MaRy bEtH kELLY BrIaN K. Zahra bridGeT M. mCcOrMaCK sHeRELl StANlEY, PeRSONAL DAVId f. vIViano, RePreSenTaTIVE of The EStatE oF JUSTIceS shERIDA sTanley, PLaINtIFf-appEllee, V Sc: 146898 Coa: 301237 KaLAmAzoO cC: 2005-000601-Nh kRiSHNA MohAN JaIn, M.d., DEfenDANT-apPELLAnt, AnD borGESs MeDIcal CeNTer, E. aNDERsOn, c.R. bEGemaN, t. beNScHEl, M. GaLlaGhER, A. keNdAll, sUzANNE sACKetT-MuMA, d. e. pEake, J. shInABarger, Z. SmItH, ChRIs tHOmas, AnD l. vrOEgINdENwey, DEFendAntS. _____________________________________/ oN OrdER oF ThE coURT, thE APPLiCatiOn FOR LEave To apPEAl ThE fEBruaRy 19, 2013 juDgMeNt of THE court oF AppEals is cONSIdEREd, and It Is DENieD, BeCAUSe we Are nOt persuadED thAt tHe QuestioNs pResEnteD shouLD Be reViEwED by tHiS cOurT. i, larry s. rOySter, clerk Of ThE MIChIgAn SupREMe COurt, certiFy THAT tHe fOreGoIng iS a tRUe ANd ComPLETE CopY of THe oRder EnterEd aT ThE dIrECtiON oF THE cOuRt. sEPTEmBer 30, 2013 h0923 clErK	Order MichiganSupreme Court Lansing, Michigan September 30, 2013 RobertP.Young,Jr.,Chief Justice 146898 Michael F. Cavanagh Stephen J.Markman Mary Beth Kelly Brian K.Zahra BridgetM. McCormack SHERELL STANLEY, Personal David F. Viviano, Representative of the ESTATE OF Justices SHERIDA STANLEY, Plaintiff-Appellee, v SC: 146898 COA: 301237 Kalamazoo CC:2005-000601-NH KRISHNAMOHAN JAIN, M.D., Defendant-Appellant, and BORGESS MEDICALCENTER, E. ANDERSON, C.R. BEGEMAN, T. BENSCHEL, M. GALLAGHER, A. KENDALL, SUZANNE SACKETT-MUMA, D. E. PEAKE, J. SHINABARGER, Z. SMITH, CHRIS THOMAS, and L. VROEGINDENWEY, Defendants. _____________________________________/ On order of the Court, the application for leave to appeal the February 19,2013 judgment of the Court of Appeals isconsidered, and it is DENIED,because we are not persuaded that the questionspresented should be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing isa true and complete copy of the order entered at the direction ofthe Court. September30,2013 h0923 Clerk	Order Michigan Supreme Court _Lansing,_ _Michigan_ September 30, _2013_ Robert P. Young, Jr., Chief Justice 146898 Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. _Zahra_ Bridget M. McCormack _SHERELL_ _STANLEY,_ Personal David _F._ Viviano, Representative _of_ _the_ _ESTATE_ OF Justices _SHERIDA_ STANLEY, Plaintiff-Appellee, _v_ _SC:_ 146898 COA: 301237 _Kalamazoo_ CC: 2005-000601-NH _KRISHNA_ MOHAN _JAIN,_ _M.D.,_ Defendant-Appellant, and _BORGESS_ MEDICAL _CENTER,_ E. ANDERSON, C.R. BEGEMAN, T. BENSCHEL, _M._ _GALLAGHER,_ A. KENDALL, _SUZANNE_ SACKETT-MUMA, _D._ E. PEAKE, _J._ SHINABARGER, _Z._ SMITH, CHRIS THOMAS, and L. _VROEGINDENWEY,_ Defendants. ______________________________________/_ On order _of_ the Court, the application for _leave_ to appeal the February 19, 2013 judgment of the Court of Appeals _is_ considered, and it is DENIED, because _we_ are not persuaded that the questions _presented_ should be reviewed _by_ _this_ Court. I, Larry _S._ Royster, _Clerk_ _of_ the Michigan Supreme _Court,_ certify that the foregoing is a true and complete copy _of_ the order entered at _the_ direction of the Court. September _30,_ 2013 _h0923_ _Clerk_
RENDERED: FEBRUARY 18, 2016 TO BE PUBLISHED oSuprrittr Caurf TArttfurhu 2015-SC-000086-CL IN RE: F ROBERT A. WINTER, JR., PLAINTIFF AND CAMERON BLAU AND HONORABLE ALLISON JONES, INTERVENING PLAINTIFFS THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION COVINGTON, CIVIL NO. 14-119-ART HONORABLE STEPHEN D. WOLNITZEK, IN HIS OFFICIAL CAPACITY AS CHAIR, JUDICIAL CONDUCT COMMISSION, ET AL. OPINION OF THE COURT BY JUSTICE VENTERS CERTIFYING THE LAW Pursuant to CR 76.37(1), we granted the certification request of the United States District Court for the Eastern District of Kentucky (District Court), to provide the answer under Kentucky law to the following three questions and the associated sub-questions: Question 1: Canon 5A(1)(a) states that a judge or judicial candidate shall not "campaign as a member of a political organization." What constitutes "campaign[ing] as a member of a political organization"? As applied to this case, would it include a candidate's statements in mailers identifying his political party, such as "I am the only Republican candidate for Judge" or "I am the Conservative Republican candidate for Judge"? Would a candidate's statement that his opponent was "the Democrat candidate for Judge" or the "Liberal Democrat for Judge" violate the Canon? Question 2: Canon 5A(1)(b) states that a judge or judicial candidate shall not "act as a leader or hold any office in a political organization." What constitutes "act[ing] as a leader or hold[ing] any office"? As applied to this case, would hosting events for a political party violate the Canon? Question 3: Canon 5B(1)(c) states that a judge or judicial candidate "shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements." What constitutes a false statement? As applied to this case, would it include a candidate who asks voters to "re-elect" her to a second term even though she was appointed to her first term? These canons were promulgated by this Court with the objective of complying with Section 117 of our Constitution requiring that "Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law." (Emphasis added.) We interpret this provision of the Kentucky Constitution as directing that Kentucky's judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the voting ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court's questions. 2 I. FACTUAL AND PROCEDURAL BACKGROUND Robert A. Winter, Jr., filed to run in the May 2014 primary election as a candidate for circuit court judge in the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Winter mailed brochures to registered Republican voters identifying himself as a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionality of Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning as a member of a political organization) and 5B(1)(c) (prohibiting judges or judicial candidates from making "false" or "misleading" statements). During the same election cycle, Cameron Blau entered the race as a candidate for district court judge in the 17th Judicial District (Campbell County). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau filed an intervening complaint to join Winter's challenge to Canons 5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a leader or hold any office in a political organization"). In his complaint, Blau stated that he wanted to send out brochures to potential voters identifying himself as "the only Republican candidate for Judge," or "the Conservative 3 Republican candidate for Judge" and identifying his opponent as "the Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated in his complaint that he wanted to seek the endorsement of the local Republican Party, host events for the local Republican Party, and make political donations to members of the Republican Party.' In a lengthy order preliminarily addressing the constitutionality of the canons under review (the Injunction Order), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted Blau's motion to prevent the JCC from enforcing the canons against him in the November 2014 election. Allison Jones was appointed by Governor Steve Beshear to the Kentucky Court of Appeals in July 2013. To retain the office to which she was appointed, Jones became a candidate in the November 2014 General Election. In October 2014, the JCC received a complaint alleging that Judge Jones had made false and misleading statements in speeches and campaign materials. The "false and misleading statements" referred to Jones' use of the word "re-elect" to describe her effort to retain the judicial position to which she had been appointed rather than "elected." Jones then intervened in Winter's District Court action, contending that Canon 5B(1)(c) (prohibiting false statements) was unconstitutional. The only issue presented in Jones' portion of the case is whether an incumbent judge who was appointed to office may properly use the 1 Blau also raised constitutional challenges to other judicial canons not at issue in the questions of law presently before us. 4 word "re-elect" to describe her effort to retain the office to which she was appointed but not elected. It is within the context of this litigation that the District Court requested that we certify the law on the questions addressed herein. II. GENERAL CONSIDERATIONS We begin with a few general considerations that guide our examination of the questions presented by the District Court. First, pursuant to the Kentucky Constitution, all judges and justices at every level of the state judiciary are selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we recognize that the judicial canons we address in this decision were designed to serve the state's compelling interest of encouraging an unbiased and impartial judiciary for the Commonwealth, and that the Commonwealth's interest is offset by restricting the political speech of only the few who volunteer to be a candidate for office, not their supporters, advocates, and non-candidate adversaries. The ultimate objective of our system of judicial selection is to achieve a delicate balance. On one side of the scales, we must foster and protect the people's prerogative to choose by direct vote the judges that preside locally and statewide. On the other side of the scales, we must create a political environment in which judges selected by the citizens are not tethered, or beholden to partisan political factions and their associated creeds. And, we must do so in a way that preserves the judiciary as an institution that is not partial to or biased against any political faction. 5 The federal judicial system achieves this balance by an effective but different approach. Rather than selecting judges by popular election, the federal system selects judges by the collaborative effort of the political branches, the executive and the legislative, based upon any and all factors including the nominee's political ties, beliefs, and political ideologies. The federal system achieves its assurance that judges are not beholden to political interests and factions by appointing them for life. With the lifetime tenure, federal judges are liberated from any ties or allegiance to the political factions that supported their ascension, and that might otherwise seek to influence them.	rendered : february 18, 2016 to be published osuprrittr caurf tarttfurhu 2015 - sc - 000086 - cl in re : f robert a. winter, jr., plaintiff and cameron blau and honorable allison jones, intervening plaintiffs the united states district court eastern district of kentucky, northern division covington, civil no. 14 - 119 - art honorable stephen d. wolnitzek, in his official capacity as chair, judicial conduct commission, et al. opinion of the court by justice venters certifying the law pursuant to cr 76. 37 ( 1 ), we granted the standing request of the united states district court for the eastern district of kentucky ( district court ), to provide the answer under kentucky law to the following three questions and the associated sub - questions : question 1 : canon 5a ( 1 ) ( a ) states that a judge or judicial candidate shall not " campaign as a member of that political organization. " what constitutes " campaign [ ing ] as a part of a political organization "? as applied to this case, would it include a candidate ' s statements in mailers identifying his political party, such as " i am the only republican candidate for judge " or " i am the conservative republican candidate for judge "? would a candidate ' s statement that his opponent was " the democrat candidate for judge " or the " liberal democrat for judge " violate the canon? question 2 : canon 5a ( 1 ) ( b ) states that a judge or judicial candidate shall neither " act as a leader or hold any office in a civic organization. " what constitutes " act [ ing ] as a leader or hold [ ing ] any office "? as applied to this case, would hosting events for a political party violate the canon? question 3 : canon 5b ( 1 ) ( c ) states that a judge or judicial candidate " shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate ' s identity, qualifications, present position, or make any other false or misleading remark. " what constitutes a false statement? as applied to this case, would it include a candidate who asks voters to " re - elect " her to a second term even though she was appointed to her first term? these canons were promulgated by this court with the objective clause meeting with section 117 of our constitution stated that " justices of the supreme court and judges of the court of appeals, circuit and district court shall be approved from their respective districts or circuits on a nonpartisan basis as provided by law. " ( emphasis added. ) we interpret this provision of the kentucky constitution as directing that kentucky ' s judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the voting ballot. accordingly, we provide the following certification of kentucky law in response to the district court ' s questions. 2 i. factual and procedural background robert a. winter, jr., filed to run in the may 2014 primary election as a candidate for circuit court judge in the 16th judicial circuit ( campbell county ). as part of his campaign strategy, winter mailed brochures to registered republican voters identifying himself as a registered republican and, conversely, identifying his opponents as registered democrats. after the brochures were sent out, the kentucky judicial conduct commission ( jcc ) notified winter that it had received complaints that his brochures violated the kentucky code of judicial conduct. winter responded in june 2014 by filing suit in the district court against the jcc challenging the constitutionality of canons 5a ( 1 ) ( a ) ( prohibiting judges and judicial candidates from campaigning as a member of a political organization ) and 5b ( 1 ) ( c ) ( prohibiting judges or judicial candidates from making " false " or " misleading " statements ). during the same election cycle, cameron blau entered the race as a candidate for district court judge in the 17th judicial district ( campbell county ). because blau likewise intended to openly campaign as a republican and send brochures likewise identifying himself as a republican, in october 2014, blau filed an intervening complaint to join winter ' s challenge to canons 5a ( 1 ) ( a ) and 5b ( 1 ) ( c ). as relevant here, blau also challenged the constitutionality of canon 5a ( 1 ) ( b ) ( a judicial candidate shall not " act as a leader or hold any office in a political organization " ). in his complaint, blau stated that he wanted to send out brochures to potential voters identifying himself as " the only republican candidate for judge, " or " the conservative 3 republican candidate for judge " and identifying his opponent as " the democrat candidate " or the " liberal democrat for judge. " blau also indicated in his complaint that he wanted to seek the endorsement of the local republican party, host events for the local republican party, and make political donations to members of the republican party. ' in a lengthy order preliminarily addressing the constitutionality of the canons under review ( the injunction order ), the district court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted blau ' s motion to prevent the jcc from enforcing the canons against him in the november 2014 election. allison jones was appointed by governor steve beshear to the kentucky court of appeals in july 2013. to retain the office to which she was appointed, jones became a candidate in the november 2014 general election. in october 2014, the jcc received a complaint alleging that judge jones had made false and misleading statements in speeches and campaign materials. the " false and misleading statements " referred to jones ' use of the word " re - elect " to describe her effort to retain the judicial position to which she had been appointed rather than " elected. " jones then intervened in winter ' s district court action, contending that canon 5b ( 1 ) ( c ) ( prohibiting false statements ) was unconstitutional. the only issue presented in jones ' portion of the case is whether an incumbent judge who was appointed to office may properly use the 1 blau also raised constitutional challenges to other judicial canons not at issue in the questions of law presently before us. 4 word " re - elect " to describe her effort to retain the office to which she was appointed but not elected. it is within the context of this litigation that the district court requested that we certify the law on the questions addressed herein. ii. general considerations we begin with a few general considerations that guide our examination of the questions presented by the district court. first, pursuant to the kentucky constitution, all judges and justices at every level of the state judiciary are selected by ballots cast by the people of kentucky. ky. const. § 117. thus, we recognize that the judicial canons we address in this decision were designed to serve the state ' s compelling interest of encouraging an unbiased and impartial judiciary for the commonwealth, and that the commonwealth ' s interest is offset by restricting the political speech of only the few who volunteer to be a candidate for office, not their supporters, advocates, and non - candidate adversaries. the ultimate objective of our system of judicial selection is to achieve a delicate balance. on one side of the scales, we must foster and protect the people ' s prerogative to choose by direct vote the judges that preside locally and statewide. on the other side of the scales, we must create a political environment in which judges selected by the citizens are not tethered, or beholden to partisan political factions and their associated creeds. and, we must do so in a way that preserves the judiciary as an institution that is not partial to or biased against any political faction. 5 the federal judicial system achieves this balance by an effective but different approach. rather than selecting judges by popular election, the federal system selects judges by the collaborative effort of the political branches, the executive and the legislative, based upon any and all factors including the nominee ' s political ties, beliefs, and political ideologies. the federal system achieves its assurance that judges are not beholden to political interests and factions by appointing them for life. with the lifetime tenure, federal judges are liberated from any ties or allegiance to the political factions that supported their ascension, and that might otherwise seek to influence them.	RENDERED: FEBRUARY 18, 2016 TO BE PUBLISHED oSuprrittr Caurf TArttfurhu 2015 - SC - 000086 - CL IN RE: F ROBERT A. WINTER, JR. , PLAINTIFF AND CAMERON BLAU AND HONORABLE ALLISON JONES, INTERVENING PLAINTIFFS THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION COVINGTON, CIVIL NO. 14 - 119 - ART HONORABLE STEPHEN D. WOLNITZEK, IN HIS OFFICIAL CAPACITY AS CHAIR, JUDICIAL CONDUCT COMMISSION, ET AL. OPINION OF THE COURT BY JUSTICE VENTERS CERTIFYING THE LAW Pursuant to CR 76. 37 (1 ), we granted the certification request of the United States District Court for the Eastern District of Kentucky (fistr&ct Court ), to provide the answer under Kentucky law to the following three questions and the associated sub - questions: Question 1: Canon 5A (1) (a) states that a judge or judicial candidate shall not " campaign as a member of a political organization. " What constitutes " campaign [ing] as a member of a political organization "? As applied to this case, would it include a candidate ' s statements in mailers identifying his political party, such as " I am the only Republican candidate for Judge " or " I am the Conservative Republican candidate for Judge "? Would a candidate ' s statement that his opponent was " the Democrat candidate for Judge " or the " Liberal Democrat for Judge " violate the Canon? Question 2: Canon 5A (1) (b) states that a judge or judicial candidate shall not " act as a leader or hold any office in a political organization. " What constitutes " act [ing] as a leader or hold [ing] any office "? As applied to this case, would hosting events for a political party violate the Canon? Question 3: Canon 5B (1) (c) states that a judge or judicial candidate " shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate ' s identity, qualifications, present position, or make any other false or misleading statements. " What constitutes a false statement? As applied to this case, would it include a candidate who asks voters to " re - elect " her to a second term even though she was appointed to her first term? These canons were promulgated by this Court with the objective of complying with Section 117 of our Constitution requiring that " Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law. " (Emphasis added.) We interpret this provision of the Kentucky Constitution as diEec^ing that Kentucky ' s judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the v*ring ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court ' s questions. 2 I. FACTUAL AND PROCEDURAL BACKGROUND Robert A. Winter, Jr. , filed to run in the May 2014 primary election as a candidate for circuit court judge in the 16th Judicial Circuit (Campbell County ). As part of his campaign strategy, Winter mailed brochures to registered Republican voters identifying himself as a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionality of Canons 5A (1) (a) (prohibiting judges and judicial candidates from campaigning as a member of a political organization) and 5B (1) (c) (prohibiting judges or judicial candidates from making " false " or " misleading " statements ). During the same election cycle, Cameron Blau entered the race as a candidate for district court judge in the 17th Judicial District (Campbell County ). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau filed an intervening complaint to join Winter ' s challenge to Canons 5A (1) (a) and 5B (1) (c ). As relevant here, Blau also challenged the constitutionality of Canon 5A (1) (b) (a judicial candidate shall not " act as a leader or hold any office in a political organization " ). In his complaint, Blau stated that he wanted to send out frocgures to potential voters identifying himself as " the only Republican candidate for Judge, " or " the Conservative 3 Republican candidate for Judge " and identifying his opponent as " the Democrat candidate " or the " Liberal Democrat for Judge. " Blau also indiXXted in his complaint that he wanted to seek the endorsement of the local Republican Party, host events for the local Republican Party, and make political donations to members of the Republican Party. ' In a lengthy order preliminarily addressing the constitutionality of the canons under review (the Injunction Order ), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and grxGted Blau ' s motion to prevent the JCC from enforcing the canons against him in the November 2014 election. Allison Jones was appointed by Governor Steve Beshear to the Kentucky Court of Appeals in July 2013. To retain the office to which she was appointed, Jones became a candidate in the November 2014 General Election. In October 2014, the JCC received a complaint alleging that Judge Jones had made false and misleading statements in speeches and campaign materials. The " false and misleading statements " referred to Jones ' use of the word " re - elect " to describe her effort to retain the judicial position to which she had been appointed rather than " elected. " Jones then intervened in Winter ' s District Court action, contending that Canon 5B (1) (c) (prohibiting false statements) was unconstitutional. The only issue presented in Jones ' portion of the case is whether an incumbent judge who was appointed to office may properly use the 1 Blau also raised constitutional challenges to other judicial canons not at issue in the questions of law presently before us. 4 word " re - elect " to describe her effort to retain the office to which she was appointed but not el@ct#d. It is within the context of this litigation that the District Court requested that we certify the law on the questions addressed herein. II. GENERAL CONSIDERATIONS We begin with a few general considerations that guide our examination of the questions presented by the District Court. First, pursuant to the Kentucky Constitution, all judges and justices at every level of the state judiciary are selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we recognize that the judicial canons we address in this decision were designed to serve the state ' s compelling interest of encouraging an unbiased and impartial judiciary for the Commonwealth, and that the Commonwealth ' s interest is offset by restricting the political speech of only the few who vol Tntee3 to be a candidate for office, not their supporters, advocates, and non - caJXidate adversaries. The ultimate objective of our system of judicial selection is to achieve a delicate balance. On one side of the scales, we must foster and protect the people ' s prerogative to choose by direct vote the judges that preside locally and statewide. On the other side of the scales, we must create a political environment in which judges selected by the citizens are not tethered, or beholden to partisan political factions and their associated creeds. And, we must do so in a way that preserves the judiciary as an institution that is not partial to or biased against any political faction. 5 The federal judicial system achieves this balance by an effective but different approach. Rather than selecting judges by popular election, the federal system selects judges by the collaborative effort of the political branches, the executive and the legislative, based upon any and all factors including the nominee ' s political ties, beliefs, and political ideologies. The federal system achieves its assurance that judges are not beholden to poPiticAl interests and factions by appointing them for life. With the lifetime tenure, federal judges are liberated from any ties or allegiance to the political factions that supported their ascension, and that might otherwise seek to influence them.	FEBRUARY 18, 2016 TO BE oSuprrittr Caurf TArttfurhu 2015-SC-000086-CL IN RE: F A. WINTER, JR., PLAINTIFF AND CAMERON BLAU AND HONORABLE ALLISON JONES, INTERVENING PLAINTIFFS THE UNITED STATES DISTRICT COURT EASTERN OF KENTUCKY, NORTHERN DIVISION COVINGTON, CIVIL 14-119-ART HONORABLE STEPHEN D. IN HIS OFFICIAL CAPACITY AS CHAIR, JUDICIAL CONDUCT ET AL. OPINION OF THE COURT BY JUSTICE VENTERS THE LAW to 76.37(1), we granted the certification of the United States Court for the Eastern of Kentucky Court), to provide the answer under Kentucky law the following three questions and the sub-questions: Question 1: Canon 5A(1)(a) states that a judge or judicial candidate shall not "campaign as a member of a political organization." What constitutes "campaign[ing] a member of political organization"? As this case, it include a candidate's statements in mailers identifying his party, such as "I am the only Republican candidate for Judge" or "I am the Conservative Republican candidate for Judge"? Would a candidate's statement that his opponent was "the Democrat candidate for Judge" or the "Liberal Democrat for Judge" the Canon? Question 2: Canon 5A(1)(b) states that a judge judicial candidate shall not "act as a leader any office a political organization." What constitutes "act[ing] as a leader or hold[ing] any office"? As applied to this case, would hosting events for a political party violate Canon? Question 3: Canon 5B(1)(c) states that a judge or judicial candidate "shall not knowingly, or with reckless for the truth, misrepresent any candidate's position, or any false or What constitutes false statement? As applied to this case, would it include a candidate who asks voters to "re-elect" her to a second term even though she was appointed to her term? These canons were promulgated this Court the objective of complying with Section 117 of our Constitution requiring that "Justices of Supreme Court and judges of the Court of Appeals, Circuit and District Court be elected from their respective districts or circuits on a basis as by law." (Emphasis added.) We interpret provision of the Kentucky Constitution as directing that Kentucky's judicial elections be nonpartisan in truth and substance, and not in process and procedure by the omission of a political party designation on voting ballot. Accordingly, we provide the certification of Kentucky law in response to the District Court's questions. 2 I. FACTUAL AND PROCEDURAL BACKGROUND Robert A. Winter, Jr., filed to run in the May 2014 primary election as candidate for circuit court judge in the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Winter mailed brochures to registered Republican voters himself as a registered and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter in June 2014 filing suit in the District Court against the challenging the constitutionality of Canons 5A(1)(a) judges and judicial candidates from as a of a political organization) and (prohibiting judges or judicial candidates from making "false" or "misleading" statements). During the same election cycle, Cameron Blau entered the race as a candidate for district judge in the 17th Judicial District County). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau an intervening complaint to join Winter's challenge to Canons 5A(1)(a) 5B(1)(c). As relevant here, Blau also challenged the of Canon 5A(1)(b) (a judicial candidate shall not "act as a leader or hold any office political organization"). In his complaint, Blau stated that he wanted to send out brochures to potential voters identifying himself as "the only Republican candidate for Judge," or "the Conservative 3 Republican candidate for Judge" and identifying his opponent as "the Democrat or the Democrat for Judge." Blau also indicated in his complaint that he wanted to seek the endorsement the Republican Party, host events the local Republican Party, and make political donations to members of the Party.' In a lengthy order preliminarily addressing the constitutionality of the canons review (the Injunction Order), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted Blau's motion to prevent the from enforcing the canons him in the November 2014 election. Allison Jones was appointed by Governor Steve Beshear to the Court of Appeals in July To retain the office to which she was appointed, Jones became a candidate in the November 2014 Election. In October 2014, JCC received a complaint alleging that Judge had made false and misleading statements in speeches and campaign materials. The "false and misleading statements" referred to Jones' use of the to describe her effort to retain the judicial position to she had been appointed rather than Jones then intervened in Winter's District Court action, that Canon 5B(1)(c) false statements) was The only issue presented in Jones' portion the case is whether an incumbent judge who was appointed to office may use the 1 Blau also raised challenges other canons not at in the questions of law presently before us. 4 word "re-elect" describe her effort to retain office to which she was appointed but not elected. It is the context of this litigation that the District Court requested we certify the law on the questions addressed herein. II. CONSIDERATIONS begin with a few general considerations that guide examination of the questions presented by the District First, pursuant to Kentucky all judges and at every level of the state judiciary are selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we recognize that the canons we address in this decision were designed to serve the state's compelling of encouraging an unbiased and impartial judiciary the Commonwealth, and that the Commonwealth's interest is offset by restricting the political speech of only few who volunteer to be a candidate for office, not their supporters, advocates, and non-candidate adversaries. The ultimate objective our system of judicial selection is to achieve a delicate balance. On side of the we must foster and the people's prerogative to choose by vote the judges locally and statewide. On the other side of the scales, we must create a political environment in which judges selected the citizens are not tethered, or beholden to partisan factions and their associated creeds. And, we must do so in a way that preserves the judiciary as an is not partial to or biased any political faction. 5 The federal judicial system achieves this balance by an effective but different approach. Rather than selecting judges by popular election, the federal system selects judges by the collaborative effort the political branches, the executive and the legislative, based upon any and all factors including the nominee's political beliefs, and political The federal system its assurance that judges are not beholden political interests and factions by appointing them for life. With the lifetime tenure, federal judges are liberated from ties or allegiance to the factions that supported their ascension, that might otherwise seek to influence them.	reNDerEd: FEBRUaRY 18, 2016 to bE PUbLISHEd OsUprRittR caURf taRTTfUrHU 2015-sc-000086-CL iN Re: f roBERt A. wiNteR, jr., PlAintIFf And CAMerOn BlAU anD hOnOrabLe aLLISoN JoNes, IntErVeninG pLaiNTiFFS ThE UnITEd statEs DIsTRiCt cOUrt eastErn dIstRicT Of KENtUcKy, NOrThERN divISioN cOVingTOn, cIVIL nO. 14-119-ART HOnOraBLE stEpHEN d. wOLNITzek, iN HiS offiCiAL CaPaCitY as chaiR, JUDiCiaL cONduCt COmMIssIOn, ET aL. OpinioN oF thE COuRT BY jUsTIcE VEnTeRS cerTifYing ThE Law purSUanT tO cR 76.37(1), We GRANtED the CeRTificatiON REquesT of thE uNITEd STaTeS DisTriCt COURT foR tHE EAStERn DISTrICT oF KenTUCky (DiStRICt coUrT), to pROvidE THE ANsWEr undEr KENTUCkY lAw To THe fOLLoWinG ThreE quEstioNS AnD tHe assOCIAteD SUb-qUeStiOns: quESTiOn 1: canon 5a(1)(A) STaTES tHAT A JUDGE OR JUdiCIAl CaNDidAtE sHALl nOt "cAMPAIgn AS a memBer oF a pOLitiCaL oRgaNIzATion." what conStituTES "campaigN[iNg] As a MeMbER Of A PoLitICAl oRgaNizAtiON"? as appliEd tO ThIs cASE, WoulD iT inCluDE a CANdiDate's stATemEnTS In MaiLErs IDEntIfyiNg hIS pOlitIcAL PARty, SucH As "i aM thE OnlY RepUblicAn caNDIdATE FOR judGe" oR "i am tHe cONServaTive REPUbliCan candIdAte For JuDgE"? wOuLd A CAndiDAtE'S STAtement That hIs oppoNEnT wAS "tHe dEmocRAt caNDIdAtE foR juDGe" oR tHe "liBErAL DEmOCrAt FOr juDGE" ViOlatE The CanoN? QUeStION 2: cAnon 5A(1)(b) States tHat a juDgE Or judIcIal cAnDiDATe ShALl noT "aCT as a LeAdER or HOlD anY oFFiCE In A POLitIcAl Organization." WhAT ConstITuTeS "aCT[inG] aS a LEAdER OR HoLd[iNG] anY oFfIce"? aS APplIeD tO THis CAsE, Would hOsTiNG eVentS FOR a pOLITICal pARTy ViolAte thE cAnON? QuEStiOn 3: CAnon 5B(1)(c) sTATes that a JuDGe oR JUDICIAL CANDidATE "SHAlL noT KnowINgLy, Or WiTH ReCKlEss DISreGard For the TRuth, MISrePReSeNT aNy CaNdIdATE'S ideNTItY, qUALIfiCAtIONS, PresENT POSItION, oR mAke aNY OTHer fALSe Or MIsLEAdiNG sTATEMenTs." whaT conSTITUtES a fALsE StAtEmeNT? As applIed To this CaSE, WoULD it INclUDE a CAndidate who AskS VotErs tO "Re-eLect" HEr tO A SeconD term evEn tHOugh SHe WAS APPoInTEd To hER FirSt teRm? tHeSe caNons were pRomULgAted bY thiS coUrT WITh tHe OBJeCTiVe OF COMpLyiNg WitH sEctiOn 117 Of ouR cOnsTiTutIOn ReqUIrIng tHAt "jUsticeS of THE SUpREmE coURt and judGes of thE cOurt of aPPeALs, cIrCuIt AND dIstRICt COURT Shall be ELEctED FROM THeiR REsPeCTIve dIstricts or CIrcuiTS On A NONpARtISan basis as PROViDEd by LAW." (eMpHASIs aDDeD.) WE InTErpRet THiS ProVisiOn OF The keNTuCKy conSTItUTiON as dIrECTIng ThaT kentUCky'S JuDICiaL eLECTIONs Be NOnPARTisAN IN trUth and sUbstAncE, AnD nOt mErEly iN ProceSs And PrOCEdUre BY The suPErFIciaL omIsSion Of A POLitiCAl PaRty dESIgNAtioN On tHe vOtIng bALlOT. AcCorDInGlY, wE proViDE thE FOlLowiNg CeRtIFICATION oF KentUcKy law In RESPoNsE TO tHE DIstrict cOuRT'S Questions. 2 i. FactuaL anD pRoCEDUrAL BaCkGround rObert a. wINter, jR., fiLEd to Run IN ThE MaY 2014 pRiMary ELEcTIoN As A CANDIdAte FOR cIrcuiT cOuRt JUdGe In tHE 16th juDIciAl CIrcUIT (cAMPBell COUnty). as ParT oF hIS cAmpAigN StRAtEGy, WInTeR mAIleD bROchureS TO REgiSTeREd REpublIcan voTeRS iDeNtiFyiNG hiMseLf as a REGIsTeRed REpUbLIcan aND, COnvERsElY, idENTIfYIng hiS OpPOnents AS RegIStered DEmocRaTS. AFTeR ThE BRoChuREs wEre sEnt ouT, tHE kentUcKy JuDiCIAL cOnDUCT ComMisSiOn (Jcc) NoTIFIEd WInTEr THaT iT HaD rEcEivEd COmplAINTS ThaT hIS bRochUReS vioLatED THE KenTuCKY coDe oF judicial COnDucT. WiNteR reSpondeD in JunE 2014 By FiliNG SUIT IN The dISTRict CoUrt aGAinst tHe Jcc challENGIng THe COnSTITUTiONAlItY of CAnoNs 5a(1)(A) (prohibItiNg jUdgeS aND JudIcial cAndidatES FroM camPAigniNG AS a mEmber OF a PoliTIcaL ORGAnIZaTion) aND 5B(1)(C) (prohiBItIng jUDges oR JuDICiAl cAnDIdATes FRoM MAkIng "FaLse" OR "mISLeaDInG" StatemENTS). DuRiNg tHe SamE eLEctIOn cycLE, cameron BlAu eNtEREd thE raCe as A caNdIdATE FoR distRict coUrt jUdGe iN The 17TH JUdICIAL DistrICT (campbElL CoUNty). bEcAusE blaU LIkeWIsE IntEnDeD to OpENly CampaiGn aS A RePublICAn And sENd BRocHurES lIkeWISE IDenTIFYing hImseLf as a rePUBLiCan, In OCtober 2014, BLaU fIlED An iNTERVEnIng cOMPlAINt tO JOIn wInTeR'S cHAlLenge TO CAnons 5a(1)(A) ANd 5B(1)(C). as rElevANT HeRE, bLau aLSo challeNged THe coNStItutIOnalIty of caNoN 5a(1)(B) (A JuDicIal cANDIDatE Shall nOT "act aS A LEader oR hOld Any ofFIce In A pOLITiCAL OrgaNIZatiOn"). IN hiS cOMplaiNt, blaU StaTeD that he WAnTeD To sEnd out bROCHuReS TO PoTenTIaL VoTERs IDeNtifyINg hImsElf as "tHE onlY repUbLiCAN cAnDIDAtE fOR JuDgE," or "the ConservaTIvE 3 rEpUBlIcAN CandIdaTe For JuDGE" aNd IDEntIfyinG his oppoNEnt as "tHE DeMOCRAt caNdidAtE" Or ThE "LIBerAl dEmOCrAt FoR JudgE." BLAU ALSO iNdIcaTEd in HiS cOMpLainT THAT hE WAnTED TO seeK the ENdorSemEnT OF the LOCAl repUBliCaN PArTY, hosT EvEntS fOR the lOcal repuBliCAN PArTy, And maKE pOlItiCAl DonatIoNs To MEMbeRS of tHE RePUBLiCan pARtY.' In a leNGtHY ORDEr PRelIMINarIly ADDRESsiNG the cOnstItUTIoNALITy OF tHe canONS uNder REviEw (tHE injUnctiON orDEr), THe dIsTRiCT coURt cONcLUded thAT ThERE waS A LikEliHOod ThaT EaCH OF thE cANons aT iSSue WAs uNcoNSTitUtIoNAl, And GranTED BLAU's MotIon To PREvENt ThE JcC fRoM EnfoRCINg thE caNoNs agAINST hIm iN tHE NOVEMBer 2014 eleCTIon. aLLIsON jonES WAs aPpOinted BY govErNor StEVE beshEAR tO THe kentUckY cOurT Of apPeAls in JuLY 2013. to RETAin tHe OFfiCe tO WHIch she WAs aPPOINTED, joNeS beCaMe A CAndiDATe in THE NOvEMber 2014 GEnerAL ELEctiON. In oCTOBEr 2014, tHE JCc RECEIved A cOMPlaINT allEGInG tHat JuDge JoNES hAd MadE FAlSE ANd mISlEaDing STaTeMEnTs in SPEEChes ANd CampAIgn MaTERIALS. THe "fAlSe anD MISleaDING STAtemENTs" rEfErrEd tO JOnES' USe oF ThE WORd "RE-ElEcT" TO dEsCriBe hEr eFfoRt tO rEtAin THE jUdiCiAl pOSitIon TO which SHe HAD beeN APPOInTed rAThER ThAN "eLEcTed." jONes THEn InTERVEnED in winTEr's DISTRict COUrt AcTioN, ConTENDING THAT cANON 5B(1)(C) (PRoHibITiNg falsE stAtemEntS) WAs uncONstITutiOnAl. ThE only iSsuE PrESEnTED In JOneS' PoRtiOn of THe CAse iS wHETHer aN INCumBenT JuDGe wHo WAS aPpOInteD to OFFIce may PrOpeRLy USE thE 1 bLaU ALSO Raised CoNstItutIOnaL chAllENgES tO OthEr JuDIcIAl CANOns noT At IsSue in tHe Questions of LaW PreSentLy bEFOrE us. 4 WorD "Re-ELECt" To DesCrIbe HER eFFoRT TO REtAin thE oFfIcE to wHICh shE WAS APpOinTED But Not elEcted. it is withIn the cOntEXT Of tHis LItIGatIOn THaT tHE distRIct cOurT rEQueStEd ThaT We ceRtiFy thE LAW On tHe QuEsTioNs aDdrESsED HEREIN. Ii. GENERAl CoNsIdeRATIONs wE BegIn wiTh A Few gENerAl CoNSIDERations tHaT GUiDe oUr ExamInaTIOn OF The quESTiOns prEseNTed By THE DIstrICT CoUrT. FiRst, puRsuanT to the keNtuCkY ConSTituTioN, All jUDGEs And jUSTiceS AT EvEry LEvEL oF THE StATe jUdICiary ARe seLECTEd by bALlOTs CAST BY thE PeoPLE of KEnTucKY. KY. COnsT. § 117. Thus, wE RecOgNize tHaT ThE jUDiCiAL canONS we aDDrESs iN tHiS DEcIsIon weRE desiGNeD To serve tHE STatE'S CompELling intereSt OF ENcoURAgInG aN unbiAseD AND ImpARtIaL juDiCiArY foR tHE coMmonWEALTH, And THAt tHE CommonwealTH's INTEReSt is ofFSET By ResTrictINg the POlItiCAL sPeeCh of OnLY the FEw who VOLuNtEER To Be a CaNDIdatE FoR OffiCE, nOT thEIR suppORteRS, adVocAtEs, AnD nON-CaNDIDAte ADVERSaries. tHe ULtiMAtE obJeCTiVe of oUr sYsTeM of jUDICIAL sELECTIoN Is To achIEVe A dElicAte bALAnCe. On ONE SIde OF ThE scaleS, we muST foster AnD pRoTECT THe pEOple's preRoGatIve TO cHOOSE By dIrEct vOte the JuDGeS That pResiDe LOCALly And STAtEwide. on THe OTheR SIde of THe ScalEs, wE MuST cREatE a polITIcal enViRoNmEnt in whICH judGes seLECtED BY the CiTIzEnS ARe NOt TEtHERED, oR BEholdEn TO paRtisAN POlITicaL faCtIOns AND tHeir ASSOciaTed CreEdS. and, We MuST do so IN a way ThAT PREserVeS ThE JUdICIaRY as An INstiTUTiON THAt IS NOt PARTIaL TO Or BIASEd agAINSt AnY POLITiCal FacTIOn. 5 tHe feDerAL judIciAL SYsTem acHiEVeS thiS bAlAnCe bY An effeCtiVE BuT dIFFeRENt appROAcH. RAThER thAn seleCtING JUDGes BY poPular ElEcTiOn, THE FedERaL sySTEM SELeCTS JUdGEs By ThE CollabORaTive efFort oF tHE POlItICAL BrAnChEs, The eXECuTiVe aNd The LEGISlAtIVe, BAsED UPon ANY ANd alL fACtoRs inCLudIng THE NoMINEe'S PoLitIcaL TIeS, BeLIefs, AND POLiTICal IDEoLOgiES. tHE feDerAL SYsTeM aCHieVes iTS ASsUraNce ThAT juDGES aRE not beHolDEn tO POLITIcAl iNtErESts aNd FACtiOnS by APpOintinG THeM foR LiFe. With THe LIfetIme tEnurE, FEDErAL jUdGeS aRe LiberAtEd FrOM AnY TiES OR alLEgIANcE tO thE poLiTIcAL FacTiONs THAt SuppoRTed thEIr AsCEnSiOn, ANd ThAT MigHT otheRWiSE SeeK tO InfLUeNCE THeM.	RENDERED:FEBRUARY 18, 2016TO BEPUBLISHED oSuprrittr Caurf TArttfurhu2015-SC-000086-CL IN RE: F ROBERT A. WINTER, JR., PLAINTIFF AND CAMERON BLAUAND HONORABLE ALLISON JONES, INTERVENINGPLAINTIFFS THEUNITED STATES DISTRICT COURT EASTERNDISTRICT OF KENTUCKY, NORTHERN DIVISION COVINGTON, CIVIL NO. 14-119-ART HONORABLE STEPHEND. WOLNITZEK, IN HIS OFFICIAL CAPACITY ASCHAIR,JUDICIAL CONDUCT COMMISSION, ET AL. OPINION OF THE COURT BY JUSTICE VENTERS CERTIFYING THE LAW Pursuantto CR76.37(1), wegrantedthe certification requestof the United States District Court for the Eastern District of Kentucky (DistrictCourt), to provide the answer under Kentucky law to the following three questions and the associated sub-questions: Question1: Canon 5A(1)(a) states that a judge or judicial candidate shallnot "campaign as a member of a political organization."What constitutes "campaign[ing] as a member ofapolitical organization"? As applied to this case, would it include a candidate's statements in mailers identifying hispolitical party, such as "Iam the only Republican candidate for Judge" or "Iamthe Conservative Republican candidate for Judge"? Would a candidate's statement that his opponentwas "the Democratcandidate for Judge" or the "Liberal Democrat for Judge" violate the Canon? Question 2: Canon 5A(1)(b) states thata judge or judicial candidate shall not "act as a leader or hold any office in a political organization." What constitutes "act[ing] as a leader or hold[ing] any office"? As applied to this case, would hosting events for a political partyviolate the Canon? Question 3: Canon 5B(1)(c)states that ajudge or judicial candidate "shall not knowingly,or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, presentposition, or make any other false ormisleadingstatements." What constitutes afalse statement? As applied to this case, would it include acandidatewho asksvoters to "re-elect" her to a second term even though she was appointed to her first term? These canons were promulgated by this Court withtheobjective of complying withSection 117 of our Constitution requiring that "Justices of the SupremeCourt and judges of the Court of Appeals, Circuit and District Court shall be elected from their respectivedistricts or circuits on anonpartisan basis as provided by law." (Emphasis added.) We interpret thisprovisionof the Kentucky Constitutionas directingthat Kentucky's judicialelections be nonpartisanin truth and substance,and not merely in process and procedure by the superficial omission of a political partydesignation on the voting ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court's questions. 2 I. FACTUAL AND PROCEDURAL BACKGROUND Robert A. Winter, Jr., filed to run in the May 2014 primary election as a candidate forcircuit court judgein the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Wintermailed brochures to registeredRepublicanvoters identifying himselfas a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sentout, theKentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionalityof Canons 5A(1)(a)(prohibiting judges and judicial candidates from campaigning as a memberof a political organization)and 5B(1)(c) (prohibiting judges orjudicial candidates from making "false" or "misleading" statements). During the same election cycle, Cameron Blauentered the raceas acandidate for district courtjudge in the 17th Judicial District(Campbell County). Because Blau likewise intended to openlycampaign as a Republicanand send brochures likewise identifying himself as a Republican, in October2014, Blau filed an interveningcomplaintto join Winter's challenge to Canons 5A(1)(a) and5B(1)(c). As relevant here, Blau also challenged the constitutionality of Canon 5A(1)(b) (a judicial candidateshall not "act as aleader or holdany office in a politicalorganization"). In his complaint, Blau stated that he wanted tosend outbrochures to potential voters identifying himself as "the onlyRepublican candidate forJudge," or "the Conservative 3 Republican candidate for Judge" and identifying hisopponent as "the Democratcandidate" or the "Liberal Democrat for Judge." Blaualso indicated in his complaint that he wanted to seek the endorsement of the localRepublican Party, host events for thelocal Republican Party, and makepolitical donations tomembers of the Republican Party.' In a lengthy order preliminarily addressing the constitutionality ofthe canons under review (the Injunction Order), the DistrictCourt concluded that there was a likelihood that each of the canons at issue wasunconstitutional, and granted Blau's motiontopreventthe JCC fromenforcing the canonsagainst him inthe November 2014 election. Allison Jones wasappointed by Governor Steve Beshear to the Kentucky Court of Appeals in July 2013. Toretain the office to which she was appointed, Jones became acandidate intheNovember 2014 GeneralElection. In October 2014, the JCC received a complaint alleging that Judge Jones had made false and misleading statements in speeches and campaign materials. The "false and misleading statements" referred to Jones' use of the word "re-elect" to describe her effort to retain thejudicial position to which she had been appointed rather than "elected." Jones then intervened in Winter's District Court action, contending that Canon 5B(1)(c) (prohibitingfalse statements) wasunconstitutional. Theonlyissue presented in Jones' portion of thecase is whether anincumbent judge who was appointedto office may properly use the 1 Blaualso raised constitutional challenges to other judicial canons not at issue in the questions of law presently before us. 4 word "re-elect"to describe her effort to retain the office towhich she was appointed but not elected. Itis within the context of this litigation thatthe District Court requested that we certify the law on the questions addressed herein.II. GENERAL CONSIDERATIONS Webegin with a few general considerations that guide our examination of the questions presented by the District Court. First, pursuant to the KentuckyConstitution, all judges and justices at every level of thestate judiciaryare selected by ballots cast by the people of Kentucky. Ky.Const.§ 117. Thus, we recognize that the judicial canons we address in this decisionwere designed to servethe state's compelling interest of encouraging an unbiased and impartial judiciary for theCommonwealth, and that the Commonwealth's interestis offset by restricting the political speech of onlythe fewwho volunteerto be a candidate for office, not their supporters,advocates, and non-candidateadversaries. The ultimate objective of our system of judicial selection is to achieve a delicate balance. On one side of the scales, we must foster and protect the people's prerogative tochoose by direct vote the judges that preside locallyand statewide. On the other side of the scales, we must create a political environment in which judgesselected by the citizens are not tethered,or beholden to partisan political factions and their associated creeds. And, we must do so in a way that preserves the judiciaryas an institutionthat is not partial to or biased against any political faction. 5 The federal judicial systemachieves this balance by aneffective but different approach. Rather than selecting judges by popular election, the federal system selects judges by the collaborative effort of the political branches, the executiveand the legislative, based upon anyand all factors including the nominee's political ties, beliefs, andpolitical ideologies. The federal system achieves its assurance that judges are not beholden to political interestsand factions byappointing them for life. With the lifetime tenure, federaljudges are liberated from any ties or allegiance to the political factions that supported their ascension, and that might otherwise seek to influence them.	RENDERED: FEBRUARY 18, 2016 TO _BE_ PUBLISHED oSuprrittr Caurf TArttfurhu 2015-SC-000086-CL IN RE: _F_ ROBERT A. WINTER, JR., PLAINTIFF AND CAMERON BLAU AND HONORABLE ALLISON JONES, INTERVENING PLAINTIFFS THE UNITED STATES _DISTRICT_ COURT EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION COVINGTON, _CIVIL_ NO. _14-119-ART_ HONORABLE _STEPHEN_ D. WOLNITZEK, _IN_ _HIS_ OFFICIAL _CAPACITY_ AS CHAIR, JUDICIAL CONDUCT COMMISSION, _ET_ _AL._ OPINION OF THE COURT BY JUSTICE VENTERS CERTIFYING THE LAW Pursuant to CR 76.37(1), we granted the certification request _of_ the _United_ States District Court for the Eastern _District_ of Kentucky (District Court), _to_ provide the answer _under_ Kentucky law to the following three questions _and_ the associated _sub-questions:_ _Question_ 1: _Canon_ 5A(1)(a) states that a judge _or_ judicial _candidate_ shall not "campaign as a member of _a_ political organization." What constitutes "campaign[ing] _as_ a _member_ of a _political_ organization"? As applied to this case, _would_ it include a candidate's statements in mailers identifying his _political_ party, such as "I am the only Republican candidate for Judge" or _"I_ am the Conservative Republican candidate for Judge"? Would a candidate's statement that his opponent _was_ "the _Democrat_ candidate for Judge" or the "Liberal _Democrat_ for Judge" violate _the_ _Canon?_ Question 2: _Canon_ 5A(1)(b) states that a judge _or_ judicial candidate shall not "act as a leader or hold any office _in_ a political _organization."_ What constitutes "act[ing] as a _leader_ or hold[ing] _any_ _office"?_ As applied to this case, would hosting _events_ for a _political_ party _violate_ the Canon? _Question_ _3:_ _Canon_ 5B(1)(c) states that _a_ judge or judicial candidate "shall not knowingly, or _with_ reckless _disregard_ for the truth, misrepresent any candidate's identity, _qualifications,_ present position, or make any other false _or_ misleading statements." What constitutes a false _statement?_ _As_ applied to this case, would it include a candidate who asks voters to "re-elect" her to a second _term_ even though _she_ _was_ appointed to her _first_ term? These canons were promulgated by this Court with the objective of complying with Section 117 of _our_ Constitution requiring that "Justices of the Supreme Court and _judges_ of the _Court_ of Appeals, _Circuit_ and District _Court_ shall be elected from their _respective_ _districts_ or circuits on _a_ _nonpartisan_ _basis_ as provided by law." (Emphasis added.) We interpret this provision of the Kentucky Constitution as directing that _Kentucky's_ judicial elections be nonpartisan in truth and substance, and _not_ merely in _process_ and procedure by _the_ superficial omission _of_ _a_ political party _designation_ _on_ the voting ballot. Accordingly, we provide _the_ following certification of Kentucky law in response to the _District_ Court's questions. 2 I. _FACTUAL_ AND PROCEDURAL BACKGROUND Robert A. Winter, Jr., filed to run in the _May_ 2014 primary election _as_ a _candidate_ for circuit court _judge_ _in_ _the_ 16th _Judicial_ _Circuit_ (Campbell County). As part of his _campaign_ strategy, Winter mailed _brochures_ to registered Republican voters identifying _himself_ as _a_ registered _Republican_ and, conversely, identifying _his_ opponents as registered Democrats. After _the_ brochures were sent out, the Kentucky Judicial Conduct Commission _(JCC)_ notified Winter that _it_ had received complaints that his _brochures_ violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by _filing_ suit in the District Court against the JCC challenging the constitutionality of _Canons_ _5A(1)(a)_ (prohibiting judges and judicial candidates from campaigning as a _member_ of a political organization) and _5B(1)(c)_ (prohibiting judges or judicial candidates from making "false" or _"misleading"_ statements). During the _same_ election cycle, Cameron Blau entered the race as a candidate for district _court_ judge _in_ _the_ 17th Judicial District _(Campbell_ County). Because _Blau_ likewise intended to openly campaign _as_ _a_ _Republican_ and send brochures likewise identifying himself _as_ a Republican, in October 2014, Blau _filed_ an _intervening_ complaint to _join_ Winter's challenge to Canons 5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the constitutionality _of_ Canon 5A(1)(b) (a judicial candidate _shall_ not "act as a leader or _hold_ any _office_ in _a_ political organization"). In his complaint, Blau stated that he wanted _to_ send out brochures to potential voters identifying himself as _"the_ _only_ _Republican_ _candidate_ for Judge," _or_ "the Conservative 3 Republican _candidate_ for Judge" and identifying his opponent _as_ "the Democrat candidate" _or_ the "Liberal _Democrat_ for _Judge."_ _Blau_ also _indicated_ in his complaint that _he_ wanted to seek the endorsement of the local Republican Party, host events for the local _Republican_ Party, and make political donations to members of the Republican Party.' _In_ a lengthy order preliminarily addressing the constitutionality _of_ the canons under review (the Injunction Order), _the_ District Court concluded that there _was_ a likelihood _that_ each of the canons at issue was unconstitutional, and granted Blau's motion to _prevent_ the _JCC_ from enforcing _the_ canons against him in the _November_ 2014 election. Allison Jones was appointed by Governor Steve Beshear to the Kentucky _Court_ of Appeals in July 2013. To retain the office to _which_ she was appointed, Jones became a candidate in the November _2014_ _General_ _Election._ In October 2014, the JCC received a complaint _alleging_ that Judge _Jones_ had _made_ false and misleading statements in _speeches_ _and_ _campaign_ _materials._ The "false and _misleading_ statements" referred _to_ Jones' use of the word "re-elect" to describe her _effort_ _to_ retain _the_ judicial position to which she had been appointed rather than _"elected."_ Jones then intervened in Winter's District Court action, contending that Canon 5B(1)(c) (prohibiting _false_ statements) was _unconstitutional._ The only issue _presented_ in Jones' portion of the case is whether _an_ incumbent judge who was _appointed_ _to_ office may properly use the 1 Blau also raised constitutional _challenges_ to _other_ judicial canons not at issue in the questions of _law_ presently before us. 4 word "re-elect" to describe _her_ effort to retain the office _to_ _which_ _she_ _was_ appointed but not elected. It is within the context of _this_ _litigation_ that the District Court _requested_ that we _certify_ the law on the _questions_ addressed herein. II. GENERAL CONSIDERATIONS We begin with a few _general_ considerations that _guide_ our examination of _the_ questions presented _by_ the District Court. First, pursuant to the Kentucky _Constitution,_ all judges and justices _at_ every level of the _state_ judiciary _are_ selected by _ballots_ cast by the _people_ _of_ Kentucky. Ky. Const. § _117._ Thus, we recognize that the judicial canons _we_ address in _this_ decision were designed to serve the state's compelling interest of encouraging an unbiased and impartial _judiciary_ _for_ the _Commonwealth,_ and that the Commonwealth's _interest_ is _offset_ by restricting _the_ _political_ speech of only the few who volunteer to be a candidate for office, not their supporters, _advocates,_ and non-candidate adversaries. The _ultimate_ _objective_ of our system of judicial selection is to achieve _a_ delicate balance. On one side _of_ the scales, we must _foster_ and _protect_ _the_ _people's_ prerogative to choose _by_ _direct_ vote the judges that preside locally and statewide. On the _other_ side of the scales, _we_ must create a political environment in which judges selected by _the_ citizens are not tethered, or beholden to partisan political factions _and_ _their_ associated creeds. And, we must do _so_ in a way that preserves the judiciary as an _institution_ that is not partial to or _biased_ against any political faction. 5 The federal judicial system achieves _this_ balance by an effective _but_ different _approach._ Rather than selecting judges by popular election, the federal system selects _judges_ by the collaborative _effort_ of the _political_ branches, the executive _and_ the legislative, based upon any and _all_ factors including the nominee's _political_ ties, _beliefs,_ and _political_ _ideologies._ The federal _system_ _achieves_ _its_ _assurance_ that judges _are_ not beholden to political interests and factions by appointing them for life. With the _lifetime_ tenure, _federal_ judges are liberated from any ties or allegiance to the political _factions_ that _supported_ their _ascension,_ and _that_ _might_ _otherwise_ seek to influence them.
NUMBER 13-00-389-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI __________________________________________________________________ DAVID B. MOORE , Appellant, v. ARTHUR ANDERSEN, L.L.P. AND LAURA MAWHINNEY , Appellees. __________________________________________________________________ On appeal from the 44th District Court of Dallas County, Texas. __________________________________________________________________ O P I N I O N Before Justices Hinojosa, Rodriguez, and Hill (1) Opinion by Justice Hill David Moore appeals from a summary judgment that he take nothing in his claims of sex discrimination and harassment, wrongful discharge, defamation, and intentional infliction of emotional distress against Arthur Andersen, L.L.P., and Laura Mawhinney. He contends in four points that the trial court erred by granting summary judgment as to each of those four claims. We affirm because the trial court did not err by granting summary judgment as to Moore's claims. Moore sued appellees after he was fired by Andersen. His claims for defamation and intentional infliction of emotional distress were made against both appellees, while his claims for sex discrimination and harassment and wrongful discharge were directed solely against Andersen. In response to his claims as they are outlined above, Appellees filed a motion for summary judgment, a motion to which Moore responded. As previously noted, the trial court granted summary judgment that Moore take nothing as to all of his claims. Appellees' motion for summary judgment reflects that it is brought both as a traditional and as a no-evidence motion for summary judgment because it states that it is brought under Texas Rules of Civil Procedure 166a(b) and 166a(i). Further, as to each cause of action brought by Moore, it alleges that there is no evidence as to an essential element of each claim, as required by Rule 166a(i). See Tex. R. Civ. P. 166a(i). Rule 166a(i) of the Texas Rules of Civil Procedure provides that: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. When such a motion is presented, the movant does not bear the burden of establishing each element of its own claim or defense. See Ford v. City State Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App.--Corpus Christi 2001, no pet.). The burden then shifts to the nonmovant to present enough evidence to be entitled to a trial: evidence that raises a genuine fact issue on the challenged elements. Id. If the nonmovant is unable to present enough evidence, the trial judge must grant the motion. Id. A no-evidence motion for summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. We first consider whether Appellees were entitled to a no-evidence motion for summary judgment. SEXUAL HARASSMENT AND DISCRIMINATION With respect to Moore's claim of sexual harassment and sex discrimination, Andersen maintains in its motion for summary judgment that Moore can produce no evidence that Mawhinney created a sexually hostile work environment or discriminated against him because of his sex. Moore's claim is a statutory claim based upon the Texas Human Rights Act, Texas Labor Code section 21.001, et seq., which provides in section 21.051 as follows: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: 1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. Tex. Lab. Code ANN.§ 21.051 (Vernon 1996). We will first consider Moore's contentions as they relate to his claim against Andersen for sex discrimination and harassment. According to Moore's affidavit, attached to his response, Mawhinney, his project manager at Andersen, gave him a memorandum that she had prepared for the file. In that memorandum, Mawhinney discussed observations of Moore's work and behavior. She observed that Moore spent "too much time 'chatting' with multiple female client personnel at the client site. This was perceived as flirtatious behavior by both the client and Barry's project team member and was brought to the attention of the project manager at a client dinner meeting." In addition to her observation, Mawhinney's memo contained the following under the heading "Action" with respect to that observation: On Wednesday, July 1st, 1998, Laura discussed this issue with Barry at the New Orleans airport. I emphasized the importance of Barry maintaining professional relationships with client personnel and focusing on project tasks, (which is what the client is paying AA to do). Additionally, I told Barry, that while developing client relationships are important, that he should be focusing mainly on tasks at his level, and when working on relationship-building, that it should occur more often with the client's managers, rather than the accounting clerks. It was reported to me that Barry's behavior changed in the right direction after our discussion. Mawhinney further stated in the memo that: Throughout the week, I observed Barry engaged in multiple conversations with multiple female employees, sometimes lasting 20-30 minutes at a time. In the course of one day, I would suspect that he worked six of eight hours. Barry should have had a full week's worth of work to do, but if for some reason he did not, he never bothered to offer assistance to his project team member with demo scripts, or ask for additional work. The bulk of the memo was directed to other types of examples of poor job performance on Moore's part. As can be seen, Mawhinney referred to Moore as Barry in the memorandum. Moore states in his affidavit that on the next working day, Monday, July 27, 1998, he went to Andersen's office of human resources and talked to Linda Ferguson. He indicates that after telling her he wanted to talk to her about sexual harassment, he complained that Mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile work environment. Moore says that he prepared a detailed rebuttal of the charges in Mawhinney's memo and followed the instructions given him by Ferguson. The affidavit reflects that on the following Friday, July 31, 1998, Moore was called to the office of Andersen's Director of Human Resources, Scott Wilson, who advised him that it "appears you are a flirt." According to Moore, Wilson then summarily fired him for sexual harassment. Moore observed in his deposition that several employees at Andersen declined to read his response to Mawhinney's memo, including Jeff Valentine and Paul Shultz. Andersen, in a letter to the Texas Workforce Commission, stated that Moore was fired for sexual harassment and forwarded its sexual harassment policy to the commission, but Wilson, Andersen's Director of Human Resources, indicated he had told the person who wrote the letter that it was incorrect and should have read that he was terminated for unprofessional conduct. Wilson stated that the person who wrote the information got it from the file by looking at the notes he prepared, but that he did not know how she concluded that Moore was terminated for sexual harassment. Wilson acknowledged that Andersen has no code number for termination for sexual harassment. Wilson indicated that the employee who made the error is a competent employee and that he was not aware of it ever happening before. In a telephone conversation between Wilson and Moore after Moore's termination, Wilson related to Moore that he had interviewed seven women. He told Moore that they had indicated that Moore asked them about whom they were dating and whether they were dating anyone. Wilson told Moore that all of them felt very uncomfortable in that situation. Moore denied the accusations, but Wilson told him that he	number 13 - 00 - 389 - cv court of appeals thirteenth district in texas corpus christi _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ david b. moore, appellant, v. arthur andersen, l. l. p. et laura mawhinney, appellees. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ on appeal from the 44th district court of dallas county, texas. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ o ne i n i o n before justices hinojosa, rodriguez, and hill ( 1 ) opinion by patricia hill david moore appeals from a summary court that he take nothing in his claims of sex discrimination and harassment, wrongful use, defamation, and intentional infliction of emotional distress against arthur andersen, l. l. p., and laura mawhinney. he contends in four points that the trial court erred by granting summary judgment as to each of those four claims. we affirm because the trial court did not err by granting summary judgment as to moore ' s claims. moore sued appellees after he was fired by andersen. his claims for defamation and intentional infliction of emotional distress were made against both appellees, while his claims for sex discrimination and harassment and wrongful discharge were directed solely against andersen. in response to his claims as they are outlined above, appellees proposed a motion for summary judgment, a motion to which moore responded. as plaintiffs provided, the trial court granted summary judgment that moore take nothing as to all of his claims. appellees ' motion for summary judgment reflects that it is brought both as a traditional and filed a no - evidence motion for summary judgment because it states that it is brought under texas rules of civil procedure 166a ( b ) and 166a ( i ). further, as to each cause of action brought by moore, it alleges that there is no evidence as to an essential element of each claim, as required by rule 166a ( i ). see tex. r. civ. p. 166a ( i ). rule 166a ( i ) of the texas rules of civil procedure provides that : after adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. the motion must state the elements as to which there is no evidence. the court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. id. when such a motion is presented, the movant does not bear the burden of establishing each element of its own claim or defense. see ford v. city state bank of palacios, 44 s. w. 3d 121, 128 ( tex. app. - - corpus christi 2001, no pet. ). the burden then shifts to the nonmovant to present enough evidence to be entitled to a trial : evidence that raises a genuine fact issue on the challenged elements. id. if the nonmovant is unable to present enough evidence, the trial judge must grant the motion. id. a no - evidence motion for summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. id. less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. id. more than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair - minded people to differ in their conclusions. id. we first consider whether appellees were entitled to a no - evidence motion for summary judgment. sexual harassment and discrimination with respect to moore ' s claim of sexual harassment and sex discrimination, andersen maintains in its motion for summary judgment that moore can produce no evidence that mawhinney created a sexually hostile work environment or discriminated against him because of his sex. moore ' s claim is a statutory claim based upon the texas human rights act, texas labor code section 21. 001, et seq., which provides in section 21. 051 as follows : an employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer : 1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment ; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. tex. lab. code ann. § 21. 051 ( vernon 1996 ). we will first consider moore ' s contentions as they relate to his claim against andersen for sex discrimination and harassment. according to moore ' s affidavit, attached to his response, mawhinney, his project manager at andersen, gave him a memorandum that she had prepared for the file. in that memorandum, mawhinney discussed observations of moore ' s work and behavior. she observed that moore spent " too much time ' chatting ' with multiple female client personnel at the client site. this was perceived as flirtatious behavior by both the client and barry ' s project team member and was brought to the attention of the project manager at a client dinner meeting. " in addition to her observation, mawhinney ' s memo contained the following under the heading " action " with respect to that observation : on wednesday, july 1st, 1998, laura discussed this issue with barry at the new orleans airport. i emphasized the importance of barry maintaining professional relationships with client personnel and focusing on project tasks, ( which is what the client is paying aa to do ). additionally, i told barry, that while developing client relationships are important, that he should be focusing mainly on tasks at his level, and when working on relationship - building, that it should occur more often with the client ' s managers, rather than the accounting clerks. it was reported to me that barry ' s behavior changed in the right direction after our discussion. mawhinney further stated in the memo that : throughout the week, i observed barry engaged in multiple conversations with multiple female employees, sometimes lasting 20 - 30 minutes at a time. in the course of one day, i would suspect that he worked six of eight hours. barry should have had a full week ' s worth of work to do, but if for some reason he did not, he never bothered to offer assistance to his project team member with demo scripts, or ask for additional work. the bulk of the memo was directed to other types of examples of poor job performance on moore ' s part. as can be seen, mawhinney referred to moore as barry in the memorandum. moore states in his affidavit that on the next working day, monday, july 27, 1998, he went to andersen ' s office of human resources and talked to linda ferguson. he indicates that after telling her he wanted to talk to her about sexual harassment, he complained that mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile work environment. moore says that he prepared a detailed rebuttal of the charges in mawhinney ' s memo and followed the instructions given him by ferguson. the affidavit reflects that on the following friday, july 31, 1998, moore was called to the office of andersen ' s director of human resources, scott wilson, who advised him that it " appears you are a flirt. " according to moore, wilson then summarily fired him for sexual harassment. moore observed in his deposition that several employees at andersen declined to read his response to mawhinney ' s memo, including jeff valentine and paul shultz. andersen, in a letter to the texas workforce commission, stated that moore was fired for sexual harassment and forwarded its sexual harassment policy to the commission, but wilson, andersen ' s director of human resources, indicated he had told the person who wrote the letter that it was incorrect and should have read that he was terminated for unprofessional conduct. wilson stated that the person who wrote the information got it from the file by looking at the notes he prepared, but that he did not know how she concluded that moore was terminated for sexual harassment. wilson acknowledged that andersen has no code number for termination for sexual harassment. wilson indicated that the employee who made the error is a competent employee and that he was not aware of it ever happening before. in a telephone conversation between wilson and moore after moore ' s termination, wilson related to moore that he had interviewed seven women. he told moore that they had indicated that moore asked them about whom they were dating and whether they were dating anyone. wilson told moore that all of them felt very uncomfortable in that situation. moore denied the accusations, but wilson told him that he	NUMBER 13 - 00 - 389 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI __________________________________________________________________ DAVID B. MOORE, Appellant, v. ARTHUR ANDERSEN, L. L. P. AND LAURA MAWHINNEY, Appellees. __________________________________________________________________ On appeal T$om the 44th District Court of Dallas County, Texas. __________________________________________________________________ O P I N I O N Before Justices Hibojisa, Rodriguez, and Hill (1) Opinion by Justice Hill David Moore appeals from a summary judgment that he take nothing in his claims of sex discrimination and harassment, wrongful discharge, defamation, and intentional infliction of emotional distress against Arthur Andersen, L. L. P. , and Laura Mawhinney. He contends in four points that the trial court erred by granting summary judgment as to each of those four claims. We affirm because the trial court did not err by granting summary judgment as to Moore ' s claims. Moore sued appellees after he was fired by Andersen. His claims for defamation and intentional infliction of emotional distress were made against both appellees, while his clainq for sex discrimination and harassment and wrongful discharge were directed solely against Andersen. In response to his claims as they are outlined above, Appellees filed a motion for summary judgment, a motion to which Moore responded. As previously noted, the trial court granted summary judgment that Moore take nothing as to all of his claims. Appellees ' motion for summary judgment reflects that it is brought both as a traditional and as a no - evidence motion for summary judgment because it states that it is brought under Texas Rules of Civil Procedure 166a (b) and 166a (i ). Further, as to each cause of action brought by Moore, it alleges that there is no evidence as to an essential element of each claim, as required by Rule 166a (i ). See Tex. R. Civ. P. 166a (i ). Rule 166a (i) of the Texas Rules of Civil Procedure provides that: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. When such a motion is presented, the movant does not bear the burden of establishing each element of its own claim or defense. See Ford v. City State Bank of Palacios, 44 S. W. 3d 121, 128 (Tex. App. - - Corpus Christi 2001, no pet. ). The burden then shifts to the nonmovant to present enough evidence to be entitled to a trial: evidence that raises a genuine fact issue on the challenged elements. Id. If the nonmovant is unable to present enough evidence, the trial judge must grant the motion. Id. A no - evidence motion for summary judgment is improperly granted if the nonmovant presents more than a scintilla of LEobative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair - minded people to differ in their conclusions. Id. We first consider whether Appellees were entitled to a no - evidence motion for summary judgment. SEXUAL HARASSMENT AND DISCRIMINATION With respect to Moore ' s claim of sexual harassment and sex discrimination, Andersen maintains in its motion for summary judgment that Moore can produce no evidence that Mawhinney created a sexually hostile work environment or discriminated against him because of his sex. Moore ' s claim is a statutory claim based upon the Texas Human Rights Act, Texas Labor Code section 21. 001, et seq. , which provides in section 21. 051 as follows: An employer commits an unlawful employment practice if because of race, color, EisabLlity, religion, sex, national origin, or age the employer: 1. fails or refuses to hire an individual, diZXharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other mahne4 the status of an employee. Tex. Lab. Code ANN. § 21. 051 (Vernon 1996 ). We will first consider Moore ' s contentions as they relate to his claim against Andersen for sex discrimination and harassment. According to Moore ' s affidavit, attached to his response, Mawhinney, his project manager at Andersen, gave him a memorandum that she had prepared for the file. In that memorandum, Mawhinney discussed observations of Moore ' s work and behavior. She observed that Moore spent " too much time ' chatting ' with multiple female client personnel at the client site. This was perceived as flirtatious behavior by both the client and Barry ' s project team member and was brought to the attention of the project manager at a client dinner meeting. " In addition to her observation, Mawhinney ' s memo contained the following under the heading " Action " with respect to that observation: On Wednesday, July 1st, 1998, Laura discussed this issue with Barry at the New Orleans airport. I emphasized the importance of Barry maintaining professional relationships with client personnel and focusing on project tasks, (which is what the client is paying AA to do ). Additionally, I told Barry, that while develop9hg client relationships are important, that he should be focusing mainly on tasks at his level, and when working on relationship - building, that it should occur more often with the client ' s managers, rather than the accounting clerks. It was reported to me that Barry ' s behavior changed in the right direction after our discussion. Mawhinney further stated in the memo that: Throughout the week, I observed Barry engaged in multiple conversations with multiple female employees, sometimes lasting 20 - 30 minutes at a time. In the course of one day, I would suspect that he worked six of eight hours. Barry should have had a f8:l week ' s worth of work to do, but if for some reason he did not, he never bothered to offer assistance to his project team member with demo scripts, or ask for additional work. The bulk of the memo was directed to other types of examples of poor job performance on Moore ' s part. As can be seen, Mawhinney referred to Moore as Barry in the memorandum. Moore states in his affidavit that on the next working day, Monday, July 27, 1998, he went to Andersen ' s office of human resources and talked to Linda Ferguson. He indicates that after telling her he wanted to talk to her about sexual harassment, he complained that Mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile work environment. Moore says that he prepared a detailed rebuttal of the charges in Mawhinney ' s memo and followed the instructions given him by Ferguson. The affidavit reflects that on the following Friday, July 31, 1998, Moore was called to the office of Andersen ' s Director of Human Resources, Scott Wilson, who advised him that it " appears you are a flirt. " According to Moore, Wilson then summarily fired him for sexual harassment. Moore observed in his deposition that several employees at Andersen declined to read his response to Mawhinney ' s memo, including Jeff Valentine and Paul Shultz. Andersen, in a letter to the Texas Workforce Commission, stated that Moore was fired for sexual harassment and forwarded its sexual harassment policy to the commission, but Wilson, Andersen ' s Director of Human Resources, indicated he had told the person who wrote the letter that it was incorrect and should have read that he was terminated for unprofessional conduct. Wilson stated that the person who wrote the information got it from the file by looking at the notes he prepared, but that he did not know how she concluded that Moore was terminated for sexual harassment. Wilson acknowledged that Andersen has no code number for termination for sexual hatasZment. Wilson indicated that the employee who made the error is a competent employee and that he was not aware of it ever happening before. In a telephone conversation between Wilson and Moore after Moore ' s termination, Wilson related to Moore that he had interviewed seven women. He told Moore that they had indicated that Moore asked them about whom they were dating and whether they were dating anyone. Wilson told Moore that all of them felt very uncomfortable in that situation. Moore denied the accusations, but Wilson told him that he	NUMBER 13-00-389-CV COURT APPEALS DISTRICT OF TEXAS CORPUS CHRISTI __________________________________________________________________ DAVID B. MOORE Appellant, v. L.L.P. AND MAWHINNEY , Appellees. __________________________________________________________________ On appeal from the 44th District Court of Dallas County, Texas. __________________________________________________________________ O P I N I O N Before Hinojosa, Rodriguez, and Hill (1) Opinion by Justice Hill David Moore from a judgment that he take nothing in his claims of sex discrimination and harassment, wrongful discharge, defamation, and intentional infliction of emotional distress against Arthur Andersen, L.L.P., and Laura Mawhinney. He contends in four points that the trial court erred by granting summary judgment as to each of those four claims. We affirm because the trial court not by granting summary judgment as to Moore's claims. Moore sued appellees after he was fired by Andersen. claims for defamation and intentional infliction of emotional were made against both appellees, while his for sex discrimination and and discharge were directed solely against Andersen. In response his claims as they are outlined above, Appellees a motion for summary judgment, a motion to which Moore responded. As previously noted, the trial court granted summary judgment Moore take nothing as to all of his Appellees' motion summary judgment reflects that it is brought both as traditional and as a no-evidence motion for judgment because it states that it brought under Texas Rules of Civil Procedure and Further, as to each cause of by Moore, it alleges that there is no as to an essential element of each claim, as required by Rule Tex. R. Civ. P. 166a(i). Rule 166a(i) of the Texas Rules of Civil Procedure that: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on ground there is no evidence of one or more essential elements of a claim or defense which an adverse party would have the burden of proof at The motion must state the elements as to which there is no evidence. The must grant the motion unless respondent produces summary judgment evidence a genuine issue of material fact. Id. When such a motion is presented, the movant does not bear the burden of establishing each element of its own claim defense. See Ford v. City State Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App.--Corpus Christi 2001, no pet.). The burden then the nonmovant to present enough evidence to be entitled to a trial: evidence that raises a genuine fact issue on the challenged elements. Id. If the nonmovant is unable to present enough evidence, the trial judge must the motion. Id. A no-evidence motion for judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than scintilla of evidence exists when evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. More than a scintilla evidence exists when the evidence rises to a that would enable reasonable and people to differ in their conclusions. Id. We first consider whether Appellees were entitled to a no-evidence motion for summary judgment. SEXUAL HARASSMENT AND DISCRIMINATION With respect to Moore's claim of sexual and Andersen in its motion for summary judgment Moore can produce no evidence that Mawhinney created a sexually hostile environment or discriminated against him because of his sex. Moore's is a statutory claim based upon the Texas Human Rights Act, Texas Labor Code section et seq., provides in section 21.051 as follows: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, age the employer: 1. fails or refuses to hire individual, discharges an or in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect any other manner the status of an employee. Tex. Lab. Code 21.051 (Vernon 1996). We will first consider Moore's contentions as they relate to his claim against Andersen for sex discrimination and harassment. According to Moore's affidavit, attached to his response, Mawhinney, project manager at Andersen, gave him a memorandum that she had prepared for the file. that memorandum, Mawhinney discussed observations of Moore's work behavior. She observed that Moore spent "too much time 'chatting' with multiple female at the client site. This was perceived both the client and Barry's project team member and was brought to attention of the project manager at a client meeting." In addition her observation, Mawhinney's memo contained following under the heading "Action" with respect to that observation: On Wednesday, 1st, 1998, Laura discussed this issue with Barry at the New Orleans airport. I emphasized the importance of Barry maintaining professional relationships with client personnel and focusing on project tasks, (which is what the client is paying AA do). Additionally, I Barry, that while developing client relationships are important, that he be focusing mainly tasks at his level, when working on that it should occur more often with the client's managers, rather than the It was reported to me that Barry's behavior changed in the right direction after our discussion. Mawhinney further stated in the memo that: Throughout the week, I observed Barry engaged in multiple conversations with multiple female employees, sometimes lasting 20-30 minutes at a time. In the course of one day, I suspect that he worked six of eight hours. Barry should have had a week's worth of work to do, if some he did he bothered to offer assistance to his project team member demo scripts, or for additional work. The of the was directed to other types of examples of poor job performance on part. As can be seen, referred Moore as Barry in memorandum. states in his affidavit that on the next working day, Monday, July 27, he to Andersen's office of human resources talked to Linda Ferguson. He indicates that after telling her he wanted to talk to her about sexual harassment, he that Mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile environment. Moore says that he prepared a detailed of charges in memo followed the instructions given him by Ferguson. The affidavit reflects that on the following Friday, July 31, 1998, Moore was called to the of Andersen's Director of Human Resources, Scott Wilson, who advised him it "appears you are According Moore, Wilson then summarily fired him for sexual harassment. Moore observed in his deposition that several at Andersen declined to read his response Mawhinney's memo, including Jeff Valentine and Shultz. Andersen, in a letter to the Texas Workforce Commission, stated that Moore was fired sexual harassment and forwarded its sexual policy to the commission, but Wilson, Andersen's Director Human Resources, indicated he had told the person who wrote the letter that it was and should have read that he was terminated for unprofessional conduct. Wilson stated that the who wrote information got it the file by looking at the notes he prepared, but that he did not know how she concluded that terminated for harassment. acknowledged Andersen has no number for termination sexual harassment. Wilson indicated the employee who made the error is competent employee and that was not aware of it ever happening before. In a telephone conversation between Wilson and Moore after Moore's termination, Wilson related to Moore that had interviewed seven women. He told Moore that they had indicated that asked them about whom they were and whether they were dating anyone. Wilson told Moore that all of very uncomfortable that situation. Moore denied the accusations, but Wilson told him that he	nuMBeR 13-00-389-Cv cOURT Of ApPealS ThIrtEenTh diStRICt oF tExAs CoRPuS CHRIsti __________________________________________________________________ dAvID b. MoOrE , aPPeLlANt, V. ARtHuR AndERsen, l.l.P. AnD lAurA maWHinNEy , AppEllEeS. __________________________________________________________________ ON APpEal fROM the 44TH disTrict coURt Of dAlLAS countY, TExAS. __________________________________________________________________ O P I N i o N BeforE JusTIceS HiNoJOSa, rodrIGuez, aND HIll (1) OPINIon By JUstIce HIlL DAVId MOOrE APpeaLS fRoM A SuMMaRy jUdGMENt ThAT He taKE nOThiNG in HiS claIms OF SEX DISCrIMinATioN anD HArasSMent, WRonGfUL DIsCHArgE, DEFamatIoN, And INTENtIONAl InflIctioN oF emoTIONal distress AgainSt ARThUr anDErsen, L.L.p., and lAURA MAwHinNEY. he COnTEnds IN fOur pOinTS tHAt THe TriAL COURt ERReD bY gRaNtinG suMMaRy jUDgMENt AS to eaCh of thoSe FouR cLAImS. WE affiRM beCAUse ThE triAL coUrT DId NOT ERr By GrantINg SuMmARY JudgmENt AS to mooRE'S cLaiMS. mOore suEd APPElLeEs AFter hE Was firED bY anDErsEn. hIs CLaIMs For deFAMAtion aND INTENTIONAL iNfLIctION Of EMOtIonAL DIstREsS werE maDe agaINsT boTh appELLeeS, while HiS CLAIMS FOr SEx dIScRIMInaTIon aNd HAraSsmeNt ANd wRoNgFuL DISChaRgE weRE DireCtEd sOlely agAiNSt anDERSEn. IN rESPOnSE to hIS cLaIms aS THeY ArE OUtlined abOvE, ApPELLeES fIleD A motIon foR SuMmARy jUdgmenT, A MOtiON tO WHich MOORE REsponded. AS PrevIOuSly NOTEd, THE TRiAL Court granTeD SummArY judgment ThAT mOOre tAKE NOthing aS TO aLl Of His CLaiMS. aPpelLeEs' MoTioN foR SUmMARy JUdgMENT rEfLeCTs tHaT It IS brOuGHt BoTH As a TraDITIonAl and As A NO-EviDence mOTION FoR SummArY jUdgmENt BECauSe It STates ThAt It Is brOUGhT uNDeR tExAS RULES OF ciVil PRoCeDUrE 166A(B) AND 166A(i). FuRtHer, aS TO EaCh Cause oF acTIOn bRouGHT bY moore, it aLLEGeS thaT THere iS No EViDENCe As TO An eSsENTIAl eleMent oF EacH cLAIm, as reQUired by rUlE 166A(i). seE TeX. r. ciV. p. 166a(I). ruLe 166A(i) OF The texas rulEs Of cIviL ProCEDUre pROViDeS THAT: AfTeR ADEqUAtE tiME foR diSCOVeRy, a paRty WiThOUt PrEseNTING SumMary jUDgMEnT EViDEncE May move FoR SuMMaRy JudgmENT on thE gRound ThAt THErE is nO evIDenCe Of One OR morE essEntIaL ELeMenTS oF A CLaim OR DEfEnSe on wHicH an aDVErSE parTy woULd HaVE THe BuRDEn OF pRoOF AT tRial. tHe motiON mUSt StaTE the ELEmenTS as To wHiCh theRE iS NO Evidence. tHE COurT muSt GRAnT tHe moTiOn UNlEsS THe rEspoNDenT PRoducES sUMmarY jUdgMeNT evidENce RAisINg a GENuINe ISsUE of maTeRiaL faCt. Id. whEn sucH A MoTioN Is PreSEntEd, tHE MovAnT DOeS NOT BEar tHe BURDEn Of eSTABlIsHinG EaCH elEMeNt Of Its own claIM Or DEfense. SEE FORD v. cITy StAte BAnK oF PALaCIOs, 44 s.W.3d 121, 128 (teX. app.--CORpUs CHRisTI 2001, no PET.). thE BURdeN THEN shiftS tO The nonmOvant To prESENt EnOugh evIdEnCE tO BE eNTITleD TO A TrIAl: EvIdeNCe thaT RAISEs a geNUIne FaCT iSSuE on The ChallENgEd eLeMENTs. Id. If THe noNmOvaNT is uNaBlE To PreSeNT EnougH eVIDencE, THe TRIaL JuDGE mUst GRANt THe MoTIoN. iD. a no-EViDENcE MoTIOn For sumMaRY JUdGMEnt Is impropErly grANTeD If The NOnmOvANt PReSEnTS MORe ThAN a SCINtiLLA OF pRObATiVE evIdENcE To RAISe A geNuiNe isSuE OF materIal FaCT. iD. LESS THan a SCIntILlA of eViDENCE exIStS WheN ThE EvidENCE IS So WEaK aS to do No moRe THAn cREATe A meRE surmiSE Or SuSPiciON of a faCt. Id. MORe THaN a sCintiLLA of eVIDenCe exiSTs WHEN the eVIDence RiSES To A leVeL tHAt WOULD ENAblE rEaSOnAblE ANd faiR-MInDed PeoPLe TO DiFfEr in their COnclUSIOns. Id. WE FiRsT cONsidER wheTHeR APPEllEES weRe eNTitLEd tO a No-eVIdENcE MOtIOn fOR SUmMArY JudgMent. SExuaL HArASsmeNT and DIScRIminATiOn WiTH RESpECT tO MOoRe'S Claim Of SEXUal harASSmEnT And sEx DisCrImiNATion, ANDERSen mAintaINs in Its motION for sUMmarY jUDGmENt ThAt mOOre caN PROducE no EviDEnCe ThAt mAwhINNey CrEaTED a SEXUALLy HoSTile wORk enVIRoNmeNt or DIScriMiNatEd agAINst HIm BECaUSE of hIS seX. MOORe's ClAIm iS A statuToRY clAIm BASed UpoN thE tEXaS HuMAN RIGHTs Act, TexaS LABOR CoDE sECTIOn 21.001, et SeQ., WhIch PRoVIDeS In secTIon 21.051 as folloWs: an EmpLoyeR comMitS an unLaWfUl emploYmEnT prAcTicE IF BEcAUsE OF Race, cOLor, diSAbiLIty, RElIgioN, Sex, NAtIOnAl oRigiN, Or age tHE EmPLOyer: 1. faIlS or refusEs TO HirE an indIVidUaL, DiSCHArGes an INDivIDUaL, Or dIsCrImINATEs IN ANY oTHER mANnER AGaINsT an iNdIVIduAl IN CONNECTiOn with cOmpENSAtioN OR tHE TeRMS, coNdiTIONs, OR pRIVILEgEs Of EmPLoymENt; OR 2. LimITS, sEGREgaTES, oR cLASSIFIeS AN emplOyEE Or APpLicaNt foR EMpLOYmeNT IN a MANnEr That WOulD dePRive Or TeND TO dEprivE an iNDIviDUAl of Any empLoYmeNt OpPORTUnitY OR adVERsElY afFeCt in Any oThER manneR THe STatuS of AN emPLOyEE. TEX. LAB. CODe AnN.§ 21.051 (veRnon 1996). wE wIll fIRsT coNSiDER moORE's COntENtionS as THEy RelATe tO His CLAim AGaiNSt AnDersEN foR Sex discRImINAtion ANd hARaSSmenT. aCcoRdIng To MoORe'S afFidAVit, ATTaChED TO HIs ResPoNse, MAwhInNEY, hiS pRoJEcT mAnager AT aNDerseN, GavE HIM A mEmOranduM ThAT sHE Had PrePareD for THE fIlE. iN THAT memoranduM, MawHINNEy disCusSED ObsERVations OF moOre'S Work anD bEhAViOr. sHE obSErVed THAt mOoRe sPEnt "tOO mUCH TImE 'ChAttinG' WIth MuLtiplE fEmALE ClIeNt PErSoNnEL At the clIeNt Site. THis wAS PErcEiVEd AS flirTaTiOUs behAVioR by BoTh The cLIEnt and Barry's pRojeCt teaM membEr anD wAS BroUgHt TO tHe aTTeNTIon OF thE prOJecT manAger at a CLIEnT dINNeR MeETing." in aDDITioN To heR obsErvATiON, MAwhInNeY'S MeMO ConTaIned THe follOwINg uNDer ThE headiNg "acTIOn" wiTH REspeCt TO thaT obSErvATIOn: ON wEdNEsdaY, JuLy 1St, 1998, lAuRA diSCusSED THis issUE WitH bARRy AT thE NEw orlEANs aIrPOrt. I emPhAsIzeD THE IMPorTancE oF BaRRY maIntaINIng PROfEsSiOnaL relAtIOnshipS With CLieNT PeRsonNeL aND fOCUsing On ProJecT TAsks, (WHicH IS WHAt thE cLieNT is PAying aa tO DO). adDItIONally, i tOLd bArRy, ThAt wHIlE deVelopING clienT RElaTionShipS ARE IMPoRTant, ThAt he sHOULd be fOcUsiNG mAiNly On tAsks aT hiS lEveL, aNd wheN wORKING On RElaTioNsHIp-BUILdiNG, ThaT it ShOuLD oCCUr moRE OftEN WiTH THE clIEnt'S mANagerS, RaTHEr Than thE ACCOuntiNG cLeRkS. iT waS REpORTEd To mE that BArRY'S bEhAvIoR cHanGeD In THE riGht diRECtIOn AfTER oUR DiSCusSion. mAWhiNNey FUrThEr stAtED In thE MeMO THaT: ThrOughout the WEEk, i ObSErvED bARRy eNGAGED IN muLtiPLE cONVERSATIoNS witH MuLTiple femalE EMpLOyees, sOMetimES lAStING 20-30 miNuteS AT a TIME. iN THE Course Of one dAy, i wouLd suSpeCt tHat he WoRKEd SiX of eighT houRS. BaRry shOuLD Have HAD a Full WEeK's wORth of WOrk tO DO, BUt iF FOr sOME ReaSON hE did NoT, hE NeVeR BotheRed TO OfFer ASsIsTanCE to HiS pRoJeCT teAm membEr WiTH demO SCriPtS, OR aSK for addITioNal WorK. THe BUlK of tHE mEmo wAs dIReCTed to OthEr TYPeS OF exaMPLES oF poOR JoB PeRformaNCE On MOorE's pArt. As cAN be sEeN, mawHINnEy rEFeRrED To moORe As BarRy In ThE MEMorAnDum. Moore stATes In HIS affIdAVIt THAT On tHE NeXT worKing DAY, monDAY, julY 27, 1998, hE WENt To ANDErsEn'S OffICE oF HUMAN rESOuRceS aNd TAlkEd to LiNda fErgUson. He iNdIcATES that AFTeR TELLING Her He wanTED to TALk TO heR aBout sEXuaL HarasSMENt, he COmplAined ThAt MawHiNNEy WAs DIRECtiNG agiTAtEd and ANtAGONIstIc BeHAVIor TowaRd HiM AnD Was cReaTiNg A HOStILe wOrk EnviroNmeNT. MoORe SAYs THAT hE PRePaReD a detaIlEd REbuttAl Of The CHArGeS In mAWhINneY's MeMo aND foLLOWEd THE InstrucTIoNS gIveN HIM by FerguSOn. THe aFFidAvIT reFLeCTs THAt on THe FollowiNG FRiDAY, jULY 31, 1998, moOre WaS cALLed tO THE OFFiCE Of ANDERsen's DiReCtor OF HUmaN rESOuRCes, scOTT WIlsOn, WhO ADvised Him tHAt iT "aPPEarS you are A flIrT." AccoRDiNG to mOOrE, wILsoN ThEN SUMmAriLY FIREd hIM For sExUAl haRAsSMENt. MOORe oBSeRved In HIs DeposiTioN tHaT SEVEral EmpLoYEEs At andERSeN decLiNED to READ hiS REsPONSE to mAwHINneY's MEMO, iNCLUdINg jEFF vALENTinE AnD Paul sHuLTz. anDerSEN, In A LetTEr TO the tExAs woRKforCe COmmISSIoN, STatEd THAT MoORe wAs fIREd For sExuaL hAraSsMENt And fOrwaRdEd itS sExUaL HARAsSmenT pOLIcy TO the cOmmISsiON, BUT wIlson, AnDeRsen's DiReCtoR Of HUMan REsourCeS, inDICAtED He HAd TOLd ThE PeRSon WHO wrOtE tHE LETtEr thAT it waS IncorRecT ANd ShouLD HavE Read ThaT He Was tErMInated for UnPrOFEsSiOnAL ConduCT. WIlSOn sTAted thAt tHe pErSoN wHO WRote tHe infORMAtION gOt iT froM thE fIle by loOKiNG AT THE notES HE PrePAred, buT that HE DID NOT KNow How She coNcLuDED tHaT moORe Was teRMInATEd FOr sexUal haRASSMeNT. WiLsoN aCKnoWleDgEd ThaT aNderSEN has NO CODe nuMber FOr teRmInAtiON FoR seXUal HArAsSMENt. wILSOn INdicatEd THat the EMPLOyee whO MAde the ErRoR iS a COmpetenT EmPloYee AnD ThAT he wAs NOt aWarE Of IT EveR HApPening BEforE. In A telephonE CoNversaTiON bEtWEEN wILsoN aND MoorE aftER mOORe'S TerMinatION, wilSOn rELated To mOOrE that he HaD InTERViewed seVeN wOMeN. hE ToLD moore ThAt they hAD InDIcAtED tHaT MoORE ASkeD ThEm aboUT WHOM THEY weRe DATINg aNd WhETHer thEy were DatIng aNyoNe. WIlSoN TOLd mooRe thAT AlL Of theM FELt VeRY UnCoMFoRTAbLe in THAT sitUatiOn. moORe deNIeD the acCuSaTIons, But WILSON TOlD him THat hE	NUMBER13-00-389-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI __________________________________________________________________ DAVIDB. MOORE , Appellant, v. ARTHUR ANDERSEN, L.L.P. AND LAURA MAWHINNEY , Appellees. __________________________________________________________________ On appeal from the 44th District Court of Dallas County, Texas. __________________________________________________________________ O PIN I O N BeforeJustices Hinojosa, Rodriguez, and Hill (1) Opinion by Justice Hill David Moore appeals from asummary judgment that he take nothing in his claims of sex discrimination and harassment, wrongful discharge, defamation, andintentional infliction of emotional distress against ArthurAndersen, L.L.P., and LauraMawhinney. He contends in four points that the trialcourt erredby granting summary judgment as to each of those fourclaims. We affirm because the trial court did not err bygranting summary judgment asto Moore's claims. Moore sued appellees after he was fired by Andersen. His claims for defamation andintentional infliction ofemotional distress were made againstbothappellees, while his claims for sexdiscriminationand harassment and wrongful discharge were directed solely against Andersen. In response to his claims as they are outlinedabove, Appellees filed a motion for summary judgment, a motion to which Moore responded. As previously noted, thetrial court granted summary judgmentthat Moore take nothing as toall of his claims.Appellees' motionfor summary judgment reflects that it is brought both as a traditional and as a no-evidence motionfor summary judgment because it states thatit is brought under Texas Rulesof CivilProcedure 166a(b) and 166a(i). Further, as toeach cause of action brought by Moore, it alleges that there is noevidence as to an essential elementof each claim,as required by Rule 166a(i). See Tex.R. Civ. P. 166a(i). Rule 166a(i)of theTexas RulesofCivil Procedure provides that: After adequate time fordiscovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that thereis no evidence of one or more essential elementsof a claim or defense on which an adverse party would havethe burden of proofattrial. The motionmust statethe elements as to which there is noevidence.The court must grant the motion unlessthe respondentproduces summaryjudgment evidence raising a genuine issue of material fact. Id. When sucha motion is presented, the movant does not bear the burden of establishingeach element ofits own claim or defense. SeeFordv. City State Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App.--Corpus Christi 2001, no pet.). The burden then shifts tothe nonmovant to present enough evidence to be entitledtoa trial: evidence that raises a genuine fact issue onthe challenged elements. Id. If the nonmovant is unable to presentenough evidence,the trial judge must grant the motion. Id.A no-evidence motionforsummaryjudgment is improperly granted if the nonmovantpresents more than a scintilla of probative evidence to raise agenuine issue ofmaterial fact. Id. Less than ascintilla ofevidence exists when the evidence is soweak asto dono more than create a mere surmise or suspicion of afact. Id. More than a scintilla of evidence exists when the evidence rises to a level thatwould enable reasonable and fair-minded people to differ in their conclusions. Id.We first consider whether Appellees wereentitled to ano-evidence motion for summaryjudgment. SEXUAL HARASSMENT AND DISCRIMINATION With respect to Moore's claimof sexual harassment and sex discrimination, Andersenmaintains in itsmotion forsummary judgment that Moorecan produce no evidence thatMawhinney created a sexually hostile work environment or discriminated against him because of his sex. Moore's claim isa statutory claim based upon the Texas Human Rights Act,Texas Labor Code section 21.001, etseq., which provides insection 21.051 as follows:An employer commits anunlawful employment practice if because of race, color, disability, religion, sex,national origin,or age the employer: 1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection withcompensation or the terms, conditions, or privileges of employment;or 2. limits,segregates, or classifies an employee orapplicant for employment in a manner that would depriveor tend todeprive an individual ofany employmentopportunity or adversely affect in any other manner the status of an employee. Tex. Lab. Code ANN.§ 21.051 (Vernon 1996). We will first consider Moore's contentions as they relate tohis claim against Andersen for sex discrimination and harassment. According to Moore's affidavit, attached to his response, Mawhinney, his project manager at Andersen, gave hima memorandum thatshe had prepared for the file. Inthat memorandum, Mawhinneydiscussed observations of Moore's work and behavior. She observed that Moore spent "too much time 'chatting' withmultiple female clientpersonnelat theclientsite. This was perceived as flirtatious behaviorby boththe client and Barry's project team member and was brought to the attention of the project manager at a client dinner meeting." In addition toher observation, Mawhinney'smemo contained thefollowing underthe heading "Action" with respect to that observation: OnWednesday, July 1st, 1998, Laura discussed this issue with Barry at the New Orleans airport. I emphasized the importance of Barry maintaining professional relationships with client personnel and focusing on project tasks, (which is whatthe client is paying AA to do). Additionally, I told Barry, that while developingclient relationships areimportant, that he should befocusing mainly on tasks at his level, and when working onrelationship-building, that it should occur more often with the client's managers, rather than the accounting clerks. It was reported to me that Barry's behavior changed inthe right direction after our discussion. Mawhinney further stated in thememo that: Throughout the week, I observed Barry engaged in multiple conversationswithmultiple femaleemployees, sometimes lasting20-30 minutes at atime.In the course of one day, Iwould suspect thatheworked six of eight hours. Barryshould havehad afull week's worth ofwork todo, but iffor some reason he did not,he never bothered tooffer assistanceto his project team member with demo scripts, or ask for additional work. The bulk of the memo wasdirected to other types of examples of poor job performance on Moore'spart. As can beseen, Mawhinney referred to Moore as Barry in the memorandum. Moore states in his affidavit that on the next working day, Monday, July 27,1998, he wentto Andersen's office of human resources and talked to LindaFerguson. He indicates that after telling herhe wanted totalk to herabout sexual harassment, he complained that Mawhinney was directing agitatedand antagonistic behavior toward him and was creating ahostile work environment. Moore says that he prepared a detailed rebuttalof thecharges in Mawhinney's memo and followed the instructions given him by Ferguson. The affidavit reflectsthat on the following Friday, July 31, 1998, Moore was called tothe officeof Andersen's DirectorofHuman Resources, Scott Wilson, who advised him that it "appears youare a flirt." According to Moore, Wilson then summarilyfired him for sexual harassment. Mooreobserved in his deposition that several employees at Andersen declined to read his response to Mawhinney'smemo, including Jeff Valentineand Paul Shultz. Andersen,in a letter to the Texas Workforce Commission,stated that Moore was fired for sexual harassment and forwarded its sexual harassment policy to the commission, but Wilson, Andersen'sDirector ofHuman Resources, indicated he had toldthe person whowrote the letter thatit was incorrect and should have read that he was terminated for unprofessional conduct. Wilson stated that the person who wrote the informationgot itfrom the file by lookingat the notes he prepared, butthat he did not knowhow sheconcluded that Moore wasterminated forsexual harassment. Wilson acknowledgedthat Andersenhas nocode number for termination for sexual harassment. Wilson indicated that the employee who made the error isa competent employee and that hewasnot awareof it ever happening before. In a telephone conversationbetweenWilson and Moore after Moore's termination, Wilsonrelatedto Moorethat he had interviewed seven women.He told Moore that theyhad indicated thatMoore asked them about whom they were dating and whether they were dating anyone. Wilson toldMoore that all of them feltvery uncomfortable in that situation. Moore deniedtheaccusations, but Wilson toldhim that he	_NUMBER_ 13-00-389-CV COURT OF APPEALS THIRTEENTH DISTRICT OF _TEXAS_ CORPUS CHRISTI __________________________________________________________________ DAVID B. MOORE , Appellant, v. _ARTHUR_ ANDERSEN, L.L.P. AND LAURA MAWHINNEY _,_ Appellees. __________________________________________________________________ On appeal from _the_ 44th District Court of Dallas County, Texas. __________________________________________________________________ _O_ _P_ I N I O N _Before_ _Justices_ Hinojosa, Rodriguez, _and_ _Hill_ (1) Opinion by Justice Hill David Moore appeals from a summary judgment that he take nothing in _his_ claims of sex discrimination and harassment, wrongful discharge, defamation, and intentional infliction of _emotional_ distress against Arthur Andersen, _L.L.P.,_ and _Laura_ Mawhinney. He contends in four points that the trial court erred by granting summary _judgment_ as to each _of_ those _four_ claims. We affirm because the trial court did not err by granting summary judgment _as_ to _Moore's_ claims. Moore sued appellees _after_ he was fired _by_ Andersen. His claims for defamation and intentional infliction of emotional distress were made against both appellees, while his claims for sex discrimination _and_ harassment and _wrongful_ discharge were directed solely against Andersen. _In_ _response_ _to_ his _claims_ as they _are_ outlined _above,_ Appellees filed a motion for summary judgment, a motion to which Moore _responded._ As previously noted, the trial court _granted_ summary judgment that Moore take nothing _as_ to all of his claims. _Appellees'_ motion for _summary_ _judgment_ reflects _that_ _it_ is brought both as _a_ traditional and as _a_ no-evidence motion for _summary_ judgment _because_ it _states_ that it is brought under _Texas_ Rules of Civil Procedure 166a(b) _and_ 166a(i). Further, _as_ _to_ each cause of action brought by Moore, it alleges that there is no evidence as to an essential element of each claim, as required by Rule 166a(i). See _Tex._ R. Civ. _P._ 166a(i). Rule _166a(i)_ of the Texas Rules of Civil Procedure _provides_ that: After adequate time for discovery, a party without presenting _summary_ _judgment_ evidence _may_ move _for_ summary judgment on the ground that there is _no_ evidence of one or more essential elements of a claim or defense on _which_ an adverse party would have the _burden_ _of_ proof at _trial._ The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence _raising_ a genuine _issue_ _of_ _material_ fact. Id. When such a motion _is_ _presented,_ the _movant_ does not _bear_ the burden of establishing each element of _its_ own claim or defense. See Ford v. City State Bank of Palacios, 44 _S.W.3d_ 121, 128 (Tex. App.--Corpus Christi 2001, _no_ pet.). The burden then shifts to the nonmovant to _present_ enough _evidence_ _to_ be entitled to a trial: evidence that raises a genuine fact issue _on_ the challenged elements. Id. If the nonmovant is unable to present enough evidence, the trial judge _must_ grant the motion. Id. _A_ no-evidence motion for summary judgment is improperly granted if the nonmovant _presents_ more than a scintilla of _probative_ evidence to raise a genuine issue of material _fact._ Id. Less than a _scintilla_ of evidence exists when the evidence is _so_ _weak_ as _to_ do no more than create _a_ mere _surmise_ or suspicion _of_ a fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would _enable_ reasonable and fair-minded _people_ to differ in their conclusions. Id. We first consider whether Appellees _were_ _entitled_ to a no-evidence motion for summary judgment. SEXUAL HARASSMENT AND DISCRIMINATION With respect to Moore's claim of _sexual_ harassment and sex _discrimination,_ Andersen maintains in its _motion_ for summary judgment that Moore can produce no evidence that Mawhinney created a sexually hostile _work_ environment or discriminated against him because _of_ his sex. Moore's claim _is_ a _statutory_ claim based upon the _Texas_ Human Rights Act, Texas Labor _Code_ section 21.001, _et_ _seq.,_ which _provides_ in section 21.051 as _follows:_ An employer commits an _unlawful_ _employment_ _practice_ if because of race, color, disability, religion, sex, national origin, or age _the_ _employer:_ 1. fails or refuses to hire an individual, discharges an _individual,_ or discriminates in any other manner _against_ an individual in connection with _compensation_ _or_ _the_ terms, _conditions,_ or privileges of employment; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to _deprive_ an individual _of_ any employment _opportunity_ or adversely affect in any other manner the status of an employee. Tex. Lab. Code ANN.§ _21.051_ (Vernon 1996). We will _first_ consider Moore's contentions as they relate _to_ his claim against Andersen _for_ sex discrimination and harassment. According _to_ Moore's affidavit, attached to his response, Mawhinney, his _project_ _manager_ at Andersen, gave him a memorandum that she _had_ prepared for _the_ file. In that memorandum, _Mawhinney_ discussed _observations_ of Moore's work and behavior. She observed that Moore spent "too much _time_ 'chatting' with multiple female client _personnel_ at the client _site._ This was perceived as flirtatious behavior by both _the_ client _and_ Barry's project team _member_ and _was_ brought to the attention of the _project_ _manager_ at a _client_ _dinner_ _meeting."_ In addition _to_ her observation, Mawhinney's memo _contained_ the following under the heading "Action" with respect to that observation: On Wednesday, July 1st, 1998, Laura discussed this issue with Barry _at_ the New Orleans airport. I _emphasized_ the importance of Barry _maintaining_ professional relationships _with_ _client_ personnel _and_ focusing on project tasks, _(which_ is what the client _is_ _paying_ AA to do). Additionally, I _told_ _Barry,_ that while developing client relationships are important, that _he_ should be focusing mainly on tasks at his level, _and_ when working on relationship-building, that it should occur more often with the client's managers, _rather_ than the accounting clerks. _It_ was reported to me _that_ _Barry's_ behavior changed in _the_ right direction after our discussion. Mawhinney further _stated_ in the memo that: _Throughout_ the week, I _observed_ _Barry_ engaged in multiple conversations with multiple female employees, sometimes lasting 20-30 minutes at _a_ time. In _the_ _course_ of one day, I would _suspect_ that he worked six of eight _hours._ _Barry_ _should_ have had a _full_ _week's_ worth of _work_ to do, but _if_ for some reason he _did_ not, _he_ never bothered to offer assistance to his project team member with demo scripts, or ask for additional work. The bulk _of_ the memo was directed _to_ _other_ types of examples _of_ poor job _performance_ on Moore's part. As _can_ be seen, Mawhinney referred _to_ _Moore_ as Barry in the memorandum. Moore states in _his_ affidavit that on the next working _day,_ _Monday,_ July 27, _1998,_ he _went_ to Andersen's office of human resources and talked _to_ Linda Ferguson. He indicates that after telling her he wanted to talk to _her_ _about_ sexual harassment, he complained _that_ Mawhinney was directing _agitated_ and antagonistic behavior toward him and was creating a _hostile_ work environment. Moore says that he _prepared_ a detailed rebuttal of _the_ charges in Mawhinney's memo _and_ followed the instructions _given_ _him_ by Ferguson. The affidavit reflects that on _the_ following Friday, July 31, 1998, _Moore_ was _called_ to the office of Andersen's Director of Human _Resources,_ _Scott_ Wilson, who _advised_ him that it "appears you are a flirt." According _to_ Moore, _Wilson_ _then_ summarily fired _him_ for sexual _harassment._ Moore observed _in_ his deposition that several employees at Andersen declined to _read_ his response to Mawhinney's memo, including Jeff Valentine and Paul _Shultz._ Andersen, in a _letter_ to the Texas Workforce Commission, _stated_ that Moore was _fired_ _for_ _sexual_ harassment and forwarded _its_ _sexual_ harassment _policy_ to _the_ commission, but Wilson, Andersen's Director of _Human_ Resources, indicated _he_ _had_ told the _person_ who wrote the _letter_ that it _was_ incorrect and _should_ have read that he was terminated for unprofessional _conduct._ Wilson stated that the person who _wrote_ the information got it _from_ _the_ file by looking at _the_ notes _he_ prepared, but that he did _not_ _know_ how she concluded that Moore was _terminated_ for sexual harassment. Wilson _acknowledged_ that Andersen has no code number _for_ termination _for_ sexual harassment. Wilson indicated that the employee who _made_ the error _is_ a competent employee _and_ that he was not _aware_ of _it_ ever happening before. In a telephone conversation between Wilson and Moore after Moore's termination, _Wilson_ _related_ to Moore that he had _interviewed_ seven women. He told Moore that they _had_ indicated _that_ Moore asked them about whom they _were_ dating _and_ whether they were _dating_ _anyone._ Wilson told Moore that _all_ of them felt very uncomfortable _in_ _that_ situation. Moore denied _the_ accusations, but Wilson told him that he
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. LACLAIR, Individually and as Personal Representative of the Estate of Cameron J. LaClair, Jr., Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant – Appellee, and PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.; CATHERINE L. COELHO, M.P.T., f/k/a Catherine Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC., Defendants. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:10-cv-00896-PJM) ARGUED: January 31, 2013 Decided: April 15, 2013 Before TRAXLER, Chief Judge, and KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Patrick Michael Regan, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Michael E. von Diezelski, ADELMAN, SHEFF & SMITH, LLC, Annapolis, Maryland, for Appellee. ON BRIEF: Jacqueline T. Colclough, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Mary T. LaClair, individually and as personal representative of the estate of her husband, Cameron J. LaClair, Jr., appeals the district court’s order finding that the Appellee, Suburban Hospital, Inc. (“Suburban”), and Physical Therapy and Sports Medicine (“PTSM”), were joint tortfeasors with respect to her husband’s injuries sustained while he was a patient at Suburban. Mr. LaClair was first injured while receiving physical therapy at PTSM. After undergoing surgery at Suburban for that injury, he was further injured by the actions of Suburban’s patient care technicians. Suburban asks us to affirm the district court’s conclusion that it is a joint tortfeasor with PTSM because its actions did not constitute a superseding cause of harm to Mr. LaClair. In unraveling this appeal, Maryland law directs us to several provisions of the Restatement (Second) of Torts, each of which is grounded in the idea that an intervening act is not a superseding cause if it was foreseeable at the time of the primary negligence. Because the harm and injuries sustained at Suburban were foreseeable consequences of the alleged negligence of PTSM, Suburban’s actions were not a superseding cause of Mr. LaClair’s injuries. Thus, Suburban and PTSM are joint tortfeasors, and we affirm. 3 I. A. On November 1, 2007, Mr. LaClair, a “vibrant former CIA officer” in his mid-80s, J.A. 211, 1 sustained an injury while receiving physical therapy at the PTSM facility (the “November 1 incident”). He was attempting to secure himself in a piece of exercise equipment and fell onto the floor, while his physical therapist had stepped away. He was taken by ambulance to Suburban, where he was diagnosed with a cervical fracture and dislocation. Dr. Alexandros Powers, a neurosurgeon, performed surgery on Mr. LaClair on November 3, 2007. The surgery entailed Dr. Powers inserting screws and rods to secure Mr. LaClair’s spine. According to Dr. Powers, the surgery “was successful and proceeded without complication, and Mr. LaClair’s prognosis at that time included a complete and total recovery free from future cervical spine surgery.” J.A. 227. Dr. Powers stated that, as of the morning of November 6, 2007, Mr. LaClair was “recovered and was to be discharged [from Suburban] to a rehabilitation facility” the next day, and “there was no plan or expectation for subsequent cervical spine 1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 4 surgeries due to the success of the November 3 surgery[.]” J.A. 228. Later on November 6, Mr. LaClair was transferred from ICU to a regular room, and his catheter was removed. He needed assistance using the bathroom, and, after Mrs. LaClair called several times for assistance, two patient care technicians responded. Mr. LaClair used the bathroom, and the patient care technicians attempted to reposition him in his hospital bed. Although Suburban claims Mrs. LaClair “resort[s] to hyperbole when referring to the conduct of November 6,” and the patient care technicians, while perhaps negligent, were “performing their normal duties when they were aiding Mr. LaClair and repositioning him in bed,” Br. of Appellee 6, Mrs. LaClair views the incident as out of bounds because her husband’s “head was violently pushed against the side rail of the bed and he cried out in pain,” Br. of Appellant 4. Mrs. LaClair testified that one of the patient care technicians was “very rough,” explaining, “her motions were gross motions. They weren’t careful motions. And I thought, with somebody with a broken neck, I think I’d be careful, but there was none of that.” J.A. 362-63 (the “November 6 incident”). There is no dispute that Mr. LaClair sustained additional injuries as a result of the November 6 incident. Dr. Powers examined Mr. LaClair and found “a fracture of the C7 endplate, dislocation at C6/C7, dislodging of the screws placed 5 in previous surgery, ligament damage and hemorrhage, nerve root injury at the level of C7 and C8 and spinal cord injury.” J.A. 228. He determined Mr. LaClair could no longer be discharged on November 7 as previously scheduled, but rather, needed to undergo an additional surgery on November 8. Mr. LaClair later underwent a third surgery on February 6, 2008, at Georgetown University Hospital. He spent nearly five months hospitalized, underwent plaster casting of his cervical spine, developed bedsores, and ultimately required a feeding tube. Mrs. LaClair presented evidence to the district court that as a result of the November 6 incident, Mr. LaClair’s medical bills totaled over $1.05 million and had a projected future cost of $900,000. Another physician testified that absent the November 6 incident, his medical and rehabilitation expenses would have been only $75,000 to $125,000. B. The LaClairs filed two separate lawsuits: first, against PTSM for injuries stemming from the November 1 incident (filed March 19, 2009) (the “PTSM lawsuit”), and second, against Suburban for “separate and distinct” injuries stemming from the 6 November 6 incident (	unpublished united states court of appeals for the fourth circuit no. 12 - 1195 mary t. laclair, individually and as personal representative of the estate of mitchell j. laclair, jr., plaintiff – appellant, v. suburban hospital, incorporated, defendant – appellee, and physical therapy and sports medicine binh m. tran, p. t., inc. ; catherine l. coelho, m. p. t., f / k / a catherine chamberlain ; suburban hospital foundation, inc. ; suburban hospital healthcare system, inc., defendants. appeal at the united states district court for the district of maryland, at greenbelt. peter j. messitte, senior district judge. ( 8 : 10 - cv - 00896 - pjm ) argued : january 31, 2013 decided : april 15, 2013 before traxler, chief judge, and keenan, and thacker, circuit judges. affirmed by unpublished per curiam opinion. argued : patrick patrick regan, regan zambri long & bertram, washington, d. c., for appellant. michael e. von diezelski, adelman, sheff & smith, llc, annapolis, maryland, for appellee. on brief : jacqueline t. colclough, regan zambri long & lambert, washington, d. c., for appellant. unpublished opinions are not binding precedent in this circuit. 2 per curiam : mary t. laclair, individually and as personal representative of her estate of her husband, cameron j. laclair, jr., appeals the district court ’ s order finding that the appellee, suburban hospital, inc. ( “ suburban ” ), and physical therapy and sports medicine ( “ ptsm ” ), were joint tortfeasors with harm to her husband ’ severe injuries sustained while he was a patient at suburban. mr. laclair becomes first injured while receiving physical therapy at ptsm. after undergoing surgery at suburban for that injury, he was further injured by the actions of suburban ’ s patient care technicians. suburban asks us to affirm the district court ’ s conclusion that it is a joint tortfeasor with ptsm because its actions did not constitute a superseding cause of harm to mr. lambert. in unraveling this appeal, maryland law directs us to several provisions of the restatement ( second ) of torts, each of whose is grounded in the idea that an intervening act is not a superseding cause if it was foreseeable at the time of the primary negligence. because the harm and injuries sustained at suburban were foreseeable consequences of the alleged negligence of ptsm, suburban ’ s actions were not a superseding cause of mr. laclair ’ s injuries. thus, suburban and ptsm are joint tortfeasors, and we affirm. 3 i. a. on november 1, 2007, mr. laclair, a “ vibrant former cia officer ” in his mid - 80s, j. a. 211, 1 sustained an injury while receiving physical therapy at the ptsm facility ( the “ november 1 incident ” ). he was attempting to secure himself in a piece of exercise equipment and fell onto the floor, while his physical therapist had stepped away. he was taken by ambulance to suburban, where he was diagnosed with a cervical fracture and dislocation. dr. alexandros powers, a neurosurgeon, performed surgery on mr. laclair on november 3, 2007. the surgery entailed dr. powers inserting screws and rods to secure mr. laclair ’ s spine. according to dr. powers, the surgery “ was successful and proceeded without complication, and mr. laclair ’ s prognosis at that time included a complete and total recovery free from future cervical spine surgery. ” j. a. 227. dr. powers stated that, as of the morning of november 6, 2007, mr. laclair was “ recovered and was to be discharged [ from suburban ] to a rehabilitation facility ” the next day, and “ there was no plan or expectation for subsequent cervical spine 1 citations to the “ j. a. ” refer to the joint appendix filed by the parties in this appeal. 4 surgeries due to the success of the november 3 surgery [. ] ” j. a. 228. later on november 6, mr. laclair was transferred from icu to a regular room, and his catheter was removed. he needed assistance using the bathroom, and, after mrs. laclair called several times for assistance, two patient care technicians responded. mr. laclair used the bathroom, and the patient care technicians attempted to reposition him in his hospital bed. although suburban claims mrs. laclair “ resort [ s ] to hyperbole when referring to the conduct of november 6, ” and the patient care technicians, while perhaps negligent, were “ performing their normal duties when they were aiding mr. laclair and repositioning him in bed, ” br. of appellee 6, mrs. laclair views the incident as out of bounds because her husband ’ s “ head was violently pushed against the side rail of the bed and he cried out in pain, ” br. of appellant 4. mrs. laclair testified that one of the patient care technicians was “ very rough, ” explaining, “ her motions were gross motions. they weren ’ t careful motions. and i thought, with somebody with a broken neck, i think i ’ d be careful, but there was none of that. ” j. a. 362 - 63 ( the “ november 6 incident ” ). there is no dispute that mr. laclair sustained additional injuries as a result of the november 6 incident. dr. powers examined mr. laclair and found “ a fracture of the c7 endplate, dislocation at c6 / c7, dislodging of the screws placed 5 in previous surgery, ligament damage and hemorrhage, nerve root injury at the level of c7 and c8 and spinal cord injury. ” j. a. 228. he determined mr. laclair could no longer be discharged on november 7 as previously scheduled, but rather, needed to undergo an additional surgery on november 8. mr. laclair later underwent a third surgery on february 6, 2008, at georgetown university hospital. he spent nearly five months hospitalized, underwent plaster casting of his cervical spine, developed bedsores, and ultimately required a feeding tube. mrs. laclair presented evidence to the district court that as a result of the november 6 incident, mr. laclair ’ s medical bills totaled over $ 1. 05 million and had a projected future cost of $ 900, 000. another physician testified that absent the november 6 incident, his medical and rehabilitation expenses would have been only $ 75, 000 to $ 125, 000. b. the laclairs filed two separate lawsuits : first, against ptsm for injuries stemming from the november 1 incident ( filed march 19, 2009 ) ( the “ ptsm lawsuit ” ), and second, against suburban for “ separate and distinct ” injuries stemming from the 6 november 6 incident (	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12 - 1195 MARY T. LACLAIR, Individually and as Personal Representative of the Estate of Cameron J. LaClair, Jr. , Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant – Appellee, and PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P. T. , INC. ; CATHERINE L. COELHO, M. P. T. , f / k / a Catherine Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC. ; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC. , Defendants. Appeal V#om the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8: 10 - cv - 00896 - PJM) ARGUED: January 31, 2013 Decided: April 15, 2013 Before TRAXLER, Chief Judge, and KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARnUEs: Patrick Michael Regan, REGAN ZAMBRI LONG & BERTRAM, Washington, D. C. , for Appellant. Michael E. von Diezelski, ADELMAN, SHEFF & SMITH, LLC, Annapolis, Maryland, for Appellee. ON BRIEF: Jacqueline T. Colclough, REGAN ZAMBRI LONG & BERTRAM, Washington, D. C. , for Appellant. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Mary T. LaClair, individually and as personal representative of the estate of her husband, Cameron J. LaClair, Jr. , appeals the district court ’ s order finding that the Appellee, Suburban Hospital, Inc. (“ Suburban ” ), and Physical Therapy and Sports Medicine (“ PTSM ” ), were joint tortfeasors with respect to her husband ’ s injuries sustained while he was a patient at Suburban. Mr. LaClair was first injured while receiving physical therapy at PTSM. After undergoing surgery at Suburban for that injury, he was further injured by the actions of Suburban ’ s patient care technicians. Suburban asks us to affirm the district court ’ s conclusion that it is a joint tortfeasor with PTSM because its actions did not constitute a superseding cause of harm to Mr. LaClair. In unraveling this appeal, Maryland law directs us to several provisions of the Restatement (Second) of Tkrtz, each of which is grounded in the idea that an intervening act is not a superseding cause if it was foreseeable at the time of the primary neglJgense. Because the harm and injuries sustained at SubuEbZn were foreseeable consequences of the alleged negligence of PYSN, Suburban ’ s actions were not a superseding cause of Mr. LaClair ’ s injuries. Thus, Suburban and PTSM are joint tortfeasors, and we affirm. 3 I. A. On November 1, 2007, Mr. LaClair, a “ vibrant former CIA officer ” in his mid - 80s, J. A. 211, 1 sustained an injury while receiving physical therapy at the PTSM facility (the “ November 1 incident ” ). He was attempting to secure himself in a piece of exercise equipment and fell onto the floor, while his physical therapist had stepped away. He was taken by ambulance to Suburban, where he was diagnosed with a cervical fracture and dislocation. Dr. Alexandros Powers, a neurosurgeon, performed surgery on Mr. LaClair on November 3, 2007. The surgery entailed Dr. Powers inserting screws and rods to secure Mr. LaClair ’ s spine. According to Dr. Powers, the surgery “ was successful and proceeded without complication, and Mr. LaClair ’ s prognosis at that time included a complete and total recovery free from future cervical spine surgery. ” J. A. 227. Dr. Powers stated that, as of the morning of November 6, 2007, Mr. LaClair was “ recovered and was to be discharged [from Suburban] to a rehabilitation facility ” the next day, and “ there was no plan or expectation for subsequent cervical spine 1 Citations to the “ J. A. ” refer to the Joint Appendix filed by the parties in this appeal. 4 surgeries due to the success of the November 3 surgery [.] ” J. A. 228. Later on November 6, Mr. LaClair was transferred from ICU to a regular room, and his catheter was removed. He needed assistance using the bathroom, and, after Mrs. LaClair called several times for assistance, two patient care technicians responded. Mr. LaClair used the bathroom, and the patient care technicians attempted to reposition him in his hospital bed. Although Suburban claims Mrs. LadKair “ resort [s] to hyperbole when 4ef$rring to the conduct of November 6, ” and the patient care technicians, while perhaps negligent, were “ performing their normal duties when they were aiding Mr. LaClair and repositioning him in bed, ” Br. of Appellee 6, Mrs. LaClair views the incident as out of bounds because her husband ’ s “ head was violently pushed against the side rail of the bed and he cried out in pain, ” Br. of Appellant 4. Mrs. LaClair testified that one of the patient care technicians was “ very rough, ” explaining, “ her motions were gross motions. They weren ’ t careful motions. And I thought, with somebody with a broken neck, I think I ’ d be careful, but there was none of that. ” J. A. 362 - 63 (the “ November 6 incident ” ). There is no dispute that Mr. LaClair sustained additional injuries as a result of the November 6 incident. Dr. Powers examined Mr. LaClair and found “ a fracture of the C7 endplate, dislocation at C6 / C7, dislodging of the screws placed 5 in previous surgery, ligament damage and hemorrhage, nerve root injury at the level of C7 and C8 and spinal cord injury. ” J. A. 228. He determined Mr. LaClair could no longer be discharged on November 7 as previously scheduled, but rather, needed to undergo an additional surgery on November 8. Mr. LaClair later underwent a third surgery on February 6, 2008, at Georgetown University Hospital. He spent nearly five months hospitalized, underwent plaster casting of his cervical spine, developed bedsores, and ultimately required a feeding tube. Mrs. LaClair presented evidence to the district court that as a result of the November 6 incident, Mr. LaClair ’ s medical bills totaled over $ 1. 05 million and had a projected future cost of $ 900, 000. Another physician testified that absent the November 6 incident, his medical and rehabilitation expenses eou<d have been only $ 75, 000 to $ 125, 000. B. The LaClairs filed two separate lawsuits: first, against PTSM for injuries stemming from the November 1 incident (filed March 19, 2009) (the “ PTSM lawsuit ” ), and sfXond, against Suburban for “ separate and distinct ” injuries stemming from the 6 November 6 incident (	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. LACLAIR, and as Personal Representative of the Estate of Cameron LaClair, Jr., Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant – Appellee, and PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.; CATHERINE L. COELHO, M.P.T., f/k/a Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC., Defendants. Appeal from the United District Court for the of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:10-cv-00896-PJM) January 31, 2013 April 15, 2013 Before TRAXLER, Chief and KEENAN, and THACKER, Circuit Judges. Affirmed by per curiam opinion. ARGUED: Patrick Michael Regan, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Michael E. von Diezelski, SHEFF & LLC, Annapolis, Maryland, for Appellee. ON Jacqueline Colclough, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Unpublished opinions are not binding in circuit. PER CURIAM: Mary T. LaClair, individually and as personal representative of the estate of her husband, Cameron J. Jr., appeals the district court’s order finding that the Appellee, Suburban Hospital, Inc. (“Suburban”), and Physical Therapy and Sports Medicine (“PTSM”), were joint tortfeasors with respect to her injuries sustained while he was a patient at Suburban. Mr. LaClair was first injured while receiving physical therapy at PTSM. After undergoing surgery at Suburban for that injury, he was injured by the actions of Suburban’s patient care Suburban asks us to affirm the court’s conclusion that it is a joint tortfeasor with PTSM because its did not constitute superseding cause of harm to LaClair. In unraveling this appeal, Maryland law directs us to several provisions of the Restatement (Second) of of which is grounded in the idea that an intervening act is not a cause if it was foreseeable at the time of the primary Because the and injuries sustained at Suburban were consequences the negligence of PTSM, Suburban’s were not a superseding cause of Mr. LaClair’s injuries. Thus, Suburban and PTSM are joint tortfeasors, and we I. A. On 1, 2007, Mr. LaClair, a “vibrant former CIA officer” his mid-80s, 211, 1 sustained an injury while receiving physical therapy at the PTSM facility (the “November 1 incident”). He was attempting to secure himself in a piece of equipment and fell onto the floor, physical therapist had stepped away. He was taken by ambulance to Suburban, where he diagnosed with a cervical and dislocation. Dr. Alexandros Powers, a neurosurgeon, performed surgery on Mr. LaClair on November 3, 2007. The surgery entailed Dr. Powers inserting screws and rods to secure Mr. LaClair’s According to Powers, the surgery and proceeded without complication, and Mr. LaClair’s prognosis at that included a complete and total recovery free from cervical spine J.A. 227. Dr. Powers that, as of the morning of November 2007, Mr. LaClair was “recovered and was to be discharged [from Suburban] to rehabilitation facility” the next day, and “there was no plan or for subsequent cervical spine Citations to the “J.A.” refer to the Joint Appendix filed by the appeal. surgeries due to the success of November 3 surgery[.]” J.A. 228. Later on November 6, Mr. LaClair was transferred from ICU to a regular room, his catheter was removed. He needed assistance using the bathroom, and, after Mrs. LaClair called several times for two care responded. Mr. LaClair used the bathroom, and the patient care technicians attempted to reposition him in his hospital bed. Although Suburban claims Mrs. LaClair “resort[s] to hyperbole when referring to the conduct November 6,” and the patient care technicians, while perhaps negligent, were “performing their normal duties when they were aiding Mr. and repositioning him in bed,” Br. of Appellee 6, Mrs. LaClair views the incident as out of bounds because her husband’s “head was pushed against the side rail of the bed and he cried out in pain,” Br. of Appellant 4. Mrs. LaClair testified that one of the patient care technicians was “very rough,” explaining, “her motions were gross motions. weren’t careful motions. And I thought, somebody with a broken think I’d be but there was none of that.” J.A. 362-63 (the “November 6 incident”). is no dispute that Mr. LaClair sustained additional injuries as a result of the November 6 incident. Dr. Powers examined Mr. LaClair and found “a fracture of the C7 endplate, dislocation at C6/C7, dislodging of the screws placed 5 in previous surgery, ligament damage and hemorrhage, nerve injury the level C7 and C8 and spinal cord J.A. 228. He determined Mr. LaClair could longer be on November 7 as previously scheduled, rather, needed to undergo additional surgery on November 8. Mr. LaClair later underwent a third surgery on February 6, 2008, at Georgetown Hospital. He spent nearly five months hospitalized, underwent plaster casting of his cervical spine, developed bedsores, and ultimately a feeding Mrs. LaClair presented evidence to district court that as a result of November 6 incident, Mr. LaClair’s medical totaled over $1.05 million and had a projected cost of $900,000. Another physician that absent the November 6 incident, his medical rehabilitation would have only $75,000 $125,000. B. LaClairs filed two separate lawsuits: against PTSM injuries stemming from the November 1 incident (filed March 19, 2009) (the “PTSM lawsuit”), and second, against Suburban for “separate and distinct” injuries from the 6 November 6 incident (	unpUbLishEd uNIted StaTeS CoUrT Of APpEALS For tHe FOuRth ciRcUIT NO. 12-1195 maRy T. lACLaIR, iNDivIduAlLy and AS PERsonal RePrEsEntAtIve oF THe EStatE of cAmErOn j. LAcLAir, Jr., PlAINTIFf – aPPELlanT, V. suburBaN hoSpital, InCOrpOrATeD, dEFeNdANt – APpelLEe, and physiCal TheRApy And SPorTs MedicinE BINh m. tRAN, P.T., inC.; catHERINE L. COelho, m.P.t., F/k/A caTherINe ChAMBeRlain; SUBURBaN HoSPitAL foUndaTiOn, inC.; subUrbAn HoSpItAl HeAlThcARE SysTEm, inC., dEfeNdantS. aPPeaL FROm thE United sTatEs dISTRIct COURt FoR The dIStRict oF mArYLAnd, at GREeNBElt. pETEr J. MESsItTE, SenioR DIsTrIct JUDgE. (8:10-CV-00896-PJm) ArGuEd: JANUaRy 31, 2013 DeCIDEd: ApRiL 15, 2013 BEfORe TrAxLER, chIeF JUDGE, AND kEEnaN, ANd thaCKER, ciRcuiT JUDgES. affiRMEd By unpubLisHed PER CURIAm OPIniOn. ARGuEd: paTRICk MicHaEL REGan, REGaN ZamBri LOnG & bErTrAm, waShingtoN, D.C., fOr APpeLLanT. miCHAEl e. VoN DIeZeLSki, adELmAN, shEFf & SmIth, lLc, ANNAPoliS, maRyLanD, FoR appELlEe. On BRiEf: jaCQuELINe T. COLCLOuGH, ReGAN ZaMBRi LONg & BERTRaM, wAsHInGTOn, D.c., fOr ApPeLLANt. UnpuBLISHed oPiNIonS are noT BinDING PreceDenT In tHIS CIrCUit. 2 PeR cURiAm: MAry t. LAclaiR, iNdIvIDuAlLY aNd As peRsonal rEPReSEntAtIVe oF tHe ESTATE Of HEr HUSBANd, CaMeRoN j. LAclAir, jR., apPEALS THE DISTRicT CoURt’s oRdeR FinDinG THAt the apPelLEE, SubURBAN hOSPiTAL, inC. (“SubURBan”), aNd pHySiCAL ThErApy AnD spOrTs MeDiCInE (“pTsM”), WERE jOiNt TORTfeaSoRs wITh rESPEcT TO hER hUSbANd’S iNjURIES SustaInEd wHiLe hE Was A pATIenT at SuBurbAn. Mr. lacLAir WAs fiRst inJURED wHIle ReCEIViNG phySICaL ThErapY At pTSM. AFteR undergOING SuRgERY AT SUburbaN for THaT inJURy, hE wAS FurtheR inJuRed bY THE ACtiOns of SUbuRBaN’S PAtIENT cARE TeCHNiCIAnS. sUbURBAN aSKS US TO affIRM the diSTRicT CouRt’S ConCLuSioN thAt it Is A jOInt tOrTFEasOR wiTH PtsM BeCauSe Its acTIOnS dId nOt coNStItutE A SupeRSEdiNg cAusE OF haRM TO MR. lacLaIR. in UnrAvElING ThIS aPPeAl, MaryLaNd LaW dIrECTs US to SeverAL prOviSIonS Of thE ReSTaTEmENt (seCOND) of TOrts, EaCh Of which Is gROUnDED in tHE idEa That An inteRveniNG aCT Is nOT a SUPersEdiNG caUSE iF it WaS fOREseeaBLE At THe TiMe OF the pRiMAry nEgliGEnce. beCAuSE tHE HarM AnD injUriEs sUstAiNed At suburbAn weRE FOreseEABLE COnSequencEs oF THE alleged nEgligENCe OF PTsM, SubuRBan’s aCtioNs wErE Not a suPersEdiNg cAUSe OF Mr. LaClair’S injuRies. thUs, SuBuRbaN aND pTsm ARe JOiNt TorTfEASoRs, ANd We AfFiRm. 3 i. a. oN nOveMber 1, 2007, mR. lAcLaIR, A “ViBrant ForMER Cia offICer” iN his mid-80s, j.a. 211, 1 sustAined AN INJury wHIle rECeIvInG PhYSiCAl theRapY at THe pTSM FaCIlITy (THE “NOVEMBeR 1 INcidENt”). he was ATtEmPTiNg To seCUre HiMseLf IN A PIEcE Of ExeRCIsE EQuIPMENt And FELl ONtO thE Floor, WhiLe HIs PHYSIcAL ThErapIST haD STePpED AWaY. HE wAs tAKeN bY aMBuLAnCe To suBuRBAN, wHeRE He WAS diAGNosed wITH A cerVICaL fractuRE AnD DIslocAtION. Dr. aLEXAndRos PoWERs, a neUROSURgeon, PerfOrMEd SURgERy oN MR. LAcLaiR on NovEMbEr 3, 2007. the surGERY EntAIleD dR. pOweRs inSertiNG ScReWS aNd rodS tO SEcUre MR. LAclAiR’s SpInE. ACCorDIng To dR. poWErS, the suRgery “wAS SucCEssFUL and PrOceeDEd WIThOUT CoMPlIcAtiON, ANd MR. LACLaIr’S prOgNOsIs AT tHAt TIme inCluDEd A cOMpLETE aNd TOtAL recOVERY FrEE fRom fUTUre CeRvICaL sPInE suRGeRy.” J.A. 227. DR. pOWERs StATED tHat, AS of tHe mOrNiNG Of nOVEmBEr 6, 2007, Mr. laCLaiR was “ReCOverED anD WAS To bE diSchARGEd [FRom SubuRbAn] to a reHabiliTaTION FaCilITy” The NEXT Day, aND “tHeRE wAS NO PlaN oR eXPeCtaTiOn FOR SUbsEqUENt CERVIcaL sPiNE 1 CitatioNs TO ThE “j.a.” REFEr tO tHe jOInt aPpENdIx fiLEd bY tHE PaRtiEs iN tHiS aPPEal. 4 SurGERIES dUe To tHE SuCceSs Of tHE nOvEmBEr 3 suRGery[.]” J.A. 228. laTer On nOVEmBER 6, mR. LaClAir wAS trANSFeRRED FroM iCu TO a ReguLaR RoOm, AND hIS CAtheTER wAS REMoveD. he NeEdeD AsSistaNce usiNG the bathrOOm, anD, aftEr Mrs. laCLAIR caLLed sEVerAl TImeS FOR assiStAnCe, twO paTiEnT cAre technICIAnS reSpONDeD. mr. lAclAIR usEd thE BAthRoOM, and The PaTIeNt cArE TECHnicians ATteMptED To REPOsition HIM In his HospITaL BEd. althOugH SUbuRbAN CLAImS MrS. LaclAIr “RESoRT[s] to HYPerBOLe whEn ReFErRINg To ThE CONduCt Of NoVeMbeR 6,” AND THE paTIEnt CaRE TECHniCIaNs, wHile PerhApS negLIgeNt, WERE “PErFoRmING ThEIr noRmAL DUTies WhEn thEy wErE AidINg Mr. laclaIr aNd REposiTioning HIM in bEd,” bR. Of apPEllee 6, mrs. laClAir views ThE IncIDeNT as Out Of BouNDS BECAUsE hER HUSBaNd’s “hEAd was viOLenTLY pUsHED aGAiNst THE SIDe rAiL oF the bed aND He cRied OuT in Pain,” bR. of aPPEllAnT 4. MRS. lAcLair TEstIFIED tHaT ONE oF THe PaTIEnT carE tecHNIcians wAS “very RoUgH,” EXplAInINg, “hEr MotIOns weRe grosS MOtions. TheY weREn’t cARefUL MOtIOns. and I tHoUGHT, wITH sOMeBodY wiTH a BROKeN nECk, i ThiNK i’D be CAREful, BUT TheRe Was nONE OF ThAT.” J.a. 362-63 (tHE “nOveMbEr 6 inciDenT”). tHERe iS NO DiSPuTE ThaT MR. LacLAir sUStAinED AddItIONAL InJUrIeS AS A ResULT oF THE NOVEMbeR 6 INcIDeNt. dR. poWERS EXAMINEd MR. LAClAiR anD FOUnd “A fractURe of THe C7 EndplAte, dISlOCAtION aT C6/c7, disLODginG OF ThE SCREWS pLACed 5 in PREVIOUS sUrgERY, liGaMent damAge aND hemORrhAge, NeRvE RoOT inJURY aT The lEVel OF C7 and c8 anD SPiNAl cOrd INJURy.” j.a. 228. he dETERmiNEd Mr. LACLair CoulD nO LoNGeR BE DISChARGed ON noVeMBER 7 aS PrevIoUSLy sChEDUlEd, bUt RaTHER, NeedeD To UNdeRGO An ADdiTioNAL SurGERy oN nOvemBEr 8. MR. LaclAiR LATeR UnDErWeNT a THIRd sUrgERy On febrUaRy 6, 2008, aT georgETOWN UNivERsity hOSpITaL. He SPenT NEARLY FIve MoNthS HosPItALIzEd, UndErWENT pLasteR caStING of hIs CerVICAl SpINE, DEvelOPEd BEdSORES, AnD UlTIMaTELY REQUIREd a FeEdInG tUBe. MRS. lAcLaiR PreSEnTeD eVidEnCE TO ThE DisTRiCt couRt THAt as a rESULT Of THe NOVEmBer 6 INCIdent, MR. LaclAiR’S MEdicAL BiLLs Totaled oVeR $1.05 MillIOn aND had a pRoJEcTed fuTure cOST oF $900,000. anOthER pHYsiciaN tEsTIFIEd thAt absENt tHe NoVEmBER 6 iNcIDEnT, HIS mEDicAl AND RehAbILITATION EXpEnseS wOuLd hAVe BeEN only $75,000 TO $125,000. B. ThE lAclAIrs fILeD Two SepaRATE laWsUItS: fiRst, agaInst pTSM for InjUrIEs SteMMInG FROM ThE NOVEMBer 1 InCIdenT (FILEd maRch 19, 2009) (THe “ptsM lAwsUiT”), anD sECOnd, AGAiNst SuBuRBAN For “SEParATe ANd dIsTINCt” inJURiES StEmmiNg FROm The 6 nOVemBer 6 inCidENT (	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. LACLAIR, Individually and as Personal Representative of the Estate of Cameron J. LaClair, Jr., Plaintiff – Appellant,v. SUBURBAN HOSPITAL, INCORPORATED,Defendant – Appellee, and PHYSICAL THERAPY ANDSPORTS MEDICINE BINH M. TRAN, P.T., INC.;CATHERINEL. COELHO, M.P.T., f/k/a Catherine Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC., Defendants. Appealfrom theUnited States District Court fortheDistrict of Maryland, at Greenbelt. Peter J. Messitte, Senior DistrictJudge. (8:10-cv-00896-PJM) ARGUED:January 31, 2013 Decided: April15, 2013 Before TRAXLER, Chief Judge, and KEENAN, and THACKER, Circuit Judges. Affirmed byunpublished per curiam opinion. ARGUED:Patrick MichaelRegan, REGAN ZAMBRI LONG& BERTRAM, Washington, D.C., for Appellant. Michael E. von Diezelski, ADELMAN, SHEFF & SMITH, LLC, Annapolis, Maryland, for Appellee.ON BRIEF: Jacqueline T.Colclough, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant.Unpublished opinionsare not binding precedent in thiscircuit. 2 PERCURIAM: Mary T. LaClair, individually and as personal representative ofthe estate of her husband, Cameron J.LaClair, Jr., appealsthedistrict court’s order finding that the Appellee, Suburban Hospital, Inc. (“Suburban”), and PhysicalTherapyand Sports Medicine (“PTSM”), were jointtortfeasors with respect to her husband’s injuries sustained while he wasa patient atSuburban. Mr. LaClair was firstinjured while receivingphysical therapy at PTSM.After undergoing surgery at Suburban for thatinjury, hewas further injured by the actions of Suburban’s patient caretechnicians. Suburban asks us toaffirm the district court’s conclusion that it is a joint tortfeasor with PTSM because its actions did not constitute a supersedingcause of harm toMr. LaClair. In unraveling this appeal, Maryland law directs us to several provisionsof the Restatement (Second) of Torts, each ofwhichis grounded in the idea that an intervening act is not a superseding cause if it was foreseeable at the timeof the primary negligence. Because theharm and injuries sustained at Suburban were foreseeable consequences of the allegednegligence of PTSM, Suburban’s actions were not a superseding cause ofMr. LaClair’s injuries. Thus, Suburban andPTSM are joint tortfeasors, and we affirm. 3 I. A. On November 1, 2007, Mr.LaClair, a “vibrant former CIAofficer” in his mid-80s, J.A. 211, 1 sustainedan injury while receiving physical therapy at the PTSM facility (the “November1 incident”). He was attempting to secure himself in a piece of exercise equipment and fell onto the floor, while his physical therapist had stepped away. He was taken by ambulance to Suburban, where he was diagnosed witha cervical fracture and dislocation. Dr.Alexandros Powers,a neurosurgeon, performed surgery onMr. LaClair on November 3, 2007. The surgery entailed Dr. Powers inserting screwsand rods to secure Mr. LaClair’s spine.According to Dr. Powers, the surgery“was successful and proceeded without complication, and Mr. LaClair’s prognosis at that time included a complete and total recovery free from future cervicalspine surgery.” J.A. 227. Dr. Powers stated that, as of the morning of November6, 2007, Mr. LaClair was “recovered and was to be discharged [from Suburban] to a rehabilitationfacility” the nextday, and “therewas no plan or expectation for subsequent cervical spine 1 Citations to the “J.A.” refer to the Joint Appendix filed by theparties inthis appeal. 4 surgeries due to thesuccess of the November 3 surgery[.]” J.A. 228. Later on November6, Mr.LaClair was transferred fromICU to a regular room,and his catheterwasremoved. He needed assistance using the bathroom, and, after Mrs. LaClair called several times for assistance, two patient caretechnicians responded.Mr. LaClairusedthe bathroom,and the patientcare technicians attempted toreposition him in his hospitalbed. Although Suburban claims Mrs.LaClair “resort[s] tohyperbole when referring to the conduct of November6,” and the patient care technicians, while perhaps negligent, were “performing their normal duties when they wereaiding Mr. LaClair and repositioning him in bed,” Br.ofAppellee 6, Mrs. LaClair views the incident as out of bounds because her husband’s“head was violently pushed against the side rail of the bed andhe cried out inpain,”Br. of Appellant 4. Mrs.LaClair testifiedthat one of the patient care technicians was “very rough,” explaining, “her motions were gross motions. They weren’t careful motions.And I thought,with somebody with a broken neck, I think I’d be careful, but there was none of that.” J.A.362-63 (the “November 6 incident”). There is no dispute thatMr. LaClair sustained additional injuries as a result of the November 6 incident.Dr. Powers examinedMr. LaClairand found “a fracture of the C7 endplate, dislocation at C6/C7, dislodging of thescrews placed 5 in previous surgery, ligament damage and hemorrhage, nerve rootinjury at the level of C7and C8 and spinal cord injury.” J.A. 228.Hedetermined Mr. LaClair could no longer be discharged onNovember 7as previouslyscheduled, but rather, needed to undergo an additional surgeryon November 8. Mr. LaClair later underwent athird surgery on February 6, 2008, at GeorgetownUniversityHospital. He spent nearlyfive months hospitalized, underwent plaster casting ofhis cervical spine, developed bedsores,and ultimately required a feeding tube. Mrs.LaClair presented evidence to the district court that as a result of the November 6 incident, Mr. LaClair’s medical bills totaledover $1.05million andhad a projected future cost of$900,000. Another physician testified that absent the November 6 incident, his medical and rehabilitationexpenseswould havebeen only $75,000 to $125,000. B. TheLaClairsfiled two separate lawsuits: first, against PTSM for injuries stemming from the November 1 incident (filed March 19, 2009) (the “PTSM lawsuit”), and second, against Suburban for “separate and distinct”injuries stemming fromthe 6November 6incident (	UNPUBLISHED UNITED STATES COURT OF _APPEALS_ FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. _LACLAIR,_ Individually and _as_ Personal Representative of the _Estate_ of Cameron J. LaClair, _Jr.,_ Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant _–_ Appellee, and PHYSICAL _THERAPY_ AND SPORTS MEDICINE BINH M. TRAN, _P.T.,_ INC.; CATHERINE L. _COELHO,_ M.P.T., f/k/a Catherine _Chamberlain;_ SUBURBAN _HOSPITAL_ _FOUNDATION,_ INC.; SUBURBAN HOSPITAL _HEALTHCARE_ SYSTEM, INC., Defendants. _Appeal_ _from_ the United States District Court _for_ _the_ District of Maryland, at Greenbelt. Peter _J._ _Messitte,_ Senior District Judge. (8:10-cv-00896-PJM) ARGUED: January _31,_ 2013 Decided: April 15, 2013 Before TRAXLER, Chief Judge, and KEENAN, _and_ THACKER, Circuit Judges. Affirmed by unpublished _per_ curiam opinion. ARGUED: Patrick _Michael_ Regan, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Michael E. von Diezelski, _ADELMAN,_ SHEFF _&_ SMITH, _LLC,_ Annapolis, Maryland, for Appellee. ON BRIEF: Jacqueline T. Colclough, _REGAN_ _ZAMBRI_ LONG _&_ BERTRAM, _Washington,_ D.C., for _Appellant._ Unpublished opinions are not binding precedent in _this_ circuit. _2_ PER _CURIAM:_ Mary T. _LaClair,_ individually _and_ _as_ _personal_ _representative_ of the estate of her husband, Cameron _J._ LaClair, Jr., _appeals_ the district court’s order finding _that_ the _Appellee,_ Suburban Hospital, Inc. (“Suburban”), and Physical Therapy _and_ _Sports_ _Medicine_ (“PTSM”), _were_ _joint_ tortfeasors with respect _to_ her husband’s injuries sustained while he was a patient at Suburban. Mr. LaClair was first injured while receiving physical therapy at PTSM. _After_ undergoing surgery at Suburban for _that_ injury, he _was_ further _injured_ _by_ the actions of _Suburban’s_ patient care technicians. Suburban _asks_ _us_ to _affirm_ the district _court’s_ conclusion that it is _a_ _joint_ tortfeasor with PTSM because _its_ _actions_ did not constitute a superseding cause _of_ harm to Mr. LaClair. In unraveling this appeal, Maryland law directs us to several _provisions_ of the Restatement (Second) _of_ Torts, each of which is _grounded_ in the idea that an _intervening_ act _is_ _not_ a superseding cause _if_ it was foreseeable at the time of _the_ primary negligence. Because the harm and injuries sustained _at_ Suburban were foreseeable consequences of the alleged negligence _of_ PTSM, Suburban’s actions were not a superseding cause of Mr. LaClair’s injuries. _Thus,_ Suburban and PTSM _are_ joint tortfeasors, and _we_ affirm. 3 _I._ A. On _November_ 1, 2007, Mr. LaClair, a “vibrant former CIA _officer”_ in his mid-80s, J.A. 211, _1_ sustained an injury while _receiving_ physical therapy at the PTSM facility (the “November 1 incident”). He _was_ _attempting_ _to_ secure himself in a piece of exercise equipment and fell onto the floor, while _his_ physical therapist had stepped _away._ He _was_ _taken_ by ambulance to Suburban, where _he_ was diagnosed with a cervical fracture and dislocation. Dr. _Alexandros_ Powers, a neurosurgeon, _performed_ surgery on Mr. _LaClair_ on _November_ 3, 2007. _The_ surgery _entailed_ Dr. _Powers_ inserting screws and _rods_ to _secure_ Mr. LaClair’s _spine._ According _to_ Dr. Powers, the surgery “was _successful_ and _proceeded_ without _complication,_ and Mr. LaClair’s prognosis at that time included _a_ complete and total recovery free from future cervical _spine_ surgery.” J.A. 227. _Dr._ Powers _stated_ _that,_ as of _the_ morning of November 6, _2007,_ Mr. LaClair _was_ “recovered and _was_ to _be_ discharged [from Suburban] _to_ a rehabilitation facility” the _next_ day, and “there was _no_ plan or _expectation_ for subsequent cervical spine 1 _Citations_ to the “J.A.” refer _to_ _the_ _Joint_ Appendix filed by the parties _in_ this appeal. 4 surgeries due to the success of the November 3 _surgery[.]”_ J.A. 228. Later on November 6, Mr. LaClair was transferred from ICU to _a_ _regular_ _room,_ and _his_ catheter was removed. _He_ needed assistance _using_ the _bathroom,_ and, after Mrs. LaClair _called_ several times for assistance, two patient care technicians responded. Mr. LaClair used the _bathroom,_ and _the_ patient care _technicians_ attempted to _reposition_ him in his hospital bed. Although Suburban claims Mrs. LaClair “resort[s] _to_ _hyperbole_ _when_ referring to the conduct of November 6,” and the patient _care_ technicians, while perhaps _negligent,_ were “performing their _normal_ _duties_ when they were aiding Mr. _LaClair_ _and_ repositioning _him_ in _bed,”_ Br. of _Appellee_ 6, Mrs. LaClair views the incident as out of bounds because her husband’s “head was violently pushed against the side rail of _the_ bed and _he_ _cried_ out in pain,” Br. of Appellant 4. Mrs. LaClair _testified_ that one of _the_ patient care technicians was “very rough,” _explaining,_ _“her_ motions were _gross_ motions. They weren’t _careful_ motions. And I thought, _with_ somebody _with_ a broken _neck,_ _I_ think I’d be _careful,_ but _there_ was none of that.” J.A. 362-63 (the “November _6_ incident”). There is _no_ dispute that Mr. LaClair sustained additional injuries as a result of _the_ November 6 incident. Dr. Powers examined Mr. LaClair _and_ found “a fracture of the C7 endplate, dislocation at C6/C7, dislodging of the screws placed 5 in previous surgery, ligament damage and hemorrhage, nerve root injury at the level of C7 and C8 and _spinal_ cord injury.” J.A. 228. He determined Mr. LaClair could no longer be discharged on November 7 as previously scheduled, but rather, _needed_ to undergo an additional surgery _on_ November 8. Mr. LaClair later underwent a _third_ surgery on February 6, 2008, at Georgetown University Hospital. He _spent_ nearly five _months_ hospitalized, underwent plaster _casting_ of _his_ cervical _spine,_ developed bedsores, _and_ ultimately required a feeding tube. _Mrs._ LaClair presented evidence to the _district_ court that as a result of the _November_ _6_ incident, Mr. LaClair’s _medical_ bills totaled over $1.05 million and had a projected future cost of $900,000. Another physician testified that _absent_ _the_ November _6_ incident, _his_ medical and rehabilitation expenses would _have_ been only _$75,000_ _to_ _$125,000._ B. The LaClairs filed _two_ _separate_ lawsuits: first, against PTSM for injuries stemming from the November _1_ incident (filed March 19, _2009)_ (the _“PTSM_ lawsuit”), and second, _against_ Suburban for _“separate_ and distinct” injuries stemming _from_ _the_ 6 November 6 incident (
T.C. Memo. 2019-54 UNITED STATES TAX COURT MARY BUI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 20453-16. Filed May 21, 2019. Ronda N. Edgar, for petitioner. Adam B. Landy, Nancy M. Gilmore, and Thomas R. Mackinson, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION GOEKE, Judge: Respondent issued a notice of deficiency to petitioner determining an income tax deficiency for 2011 of $173,058 and an addition to tax -2- [2] under section 6651(a)(1) of $66,668.1 After concessions, the sole issue remaining for consideration is whether petitioner must include in gross income cancellation of indebtedness of $355,488. We hold that she may properly exclude $48,151 but must include the remaining $307,337. FINDINGS OF FACT This case was tried on September 10, 2018, in San Francisco, California. The parties have submitted a stipulation of facts and accompanying exhibits, which are incorporated herein by this reference. When the petition was timely filed, petitioner resided in California.2 Petitioner is also known as Nga Thuy Lan Bui. For 2011 petitioner excluded $355,488 of discharged indebtedness from her gross income and indicated the excluded indebtedness was qualified principal residence 1 Unless otherwise indicated, all section references are to the Internal Revenue Code (Code) as amended and in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 The petition was received with an illegible postmark on September 19, 2016, five days after the time to file a petition with this Court had expired. Sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., places on the taxpayer the burden to prove the date an illegible postmark was made. On March 12, 2019, we issued an order directing petitioner to sustain her burden of establishing that the postmark was timely made. On March 24, 2019, petitioner responded to our order and supplemented the record with proof of mailing on September 12, 2016. Accordingly, we are satisfied of our jurisdiction to hear this case. -3- [3] indebtedness. On June 16, 2016, respondent issued a notice of deficiency to petitioner for 2011 and proposed an adjustment disallowing her entire exclusion of discharged indebtedness income. Respondent now concedes that petitioner was insolvent by $42,852 in 2011. I. Residences A. Red River Property On June 1, 1981, petitioner, her former spouse, and three other persons purchased a single-family residence on Red River Way in San Jose, California (Red River property), for $156,500. Petitioner and her former spouse together owned a 25% interest in the Red River property. By grant deed dated October 15, 1985, and recorded January 28, 1986, petitioner and her former spouse purchased the remaining 75% interest in the Red River property for $97,500. By quitclaim deed dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Red River property. Petitioner legally separated from her former spouse in 2005 or 2006. Petitioner lived at the Red River property from its acquisition in 1981 through March 14, 2011, and treated it as her primary residence. On March 14, 2011, petitioner relinquished ownership of the Red River property by short sale for -4- [4] $485,000. At that time, the balance of the mortgage on the Red River property was $416,000. B. Cedar Grove Property On or around June 1, 1988, petitioner and her former spouse purchased a single-family rental home on Cedar Grove Circle in San Jose, California (Cedar Grove property). By quitclaim deed dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Cedar Grove property. After petitioner sold the Red River property in March 2011, she moved into the Cedar Grove property and established it as her new primary residence. II. Wells Fargo Lines of Credit Before 2011 petitioner obtained three home equity lines of credit with Wells Fargo Bank, N.A. (Wells Fargo). Petitioner executed a deed of trust dated February 14, 2007, and recorded March 12, 2007, securing a $250,000 line of credit for an account ending in 9471 between herself and Wells Fargo with the Red River property listed as collateral (9471 loan). Petitioner executed a deed of trust dated March 1, 2007, and recorded March 26, 2007, securing a $40,000 line of credit for an account ending in 7231 between herself and Wells Fargo with the Cedar Grove property as collateral (7231 loan). Petitioner also executed a deed of trust dated March 20, 2007, and recorded April 30, 2007, securing a $101,942 line -5- [5] of credit for an account ending in 5371 between herself and Wells Fargo with the Cedar Grove property as collateral (5371 loan). In 2011 Wells Fargo issued three Forms 1099-C, Cancellation of Debt, to petitioner indicating that the remaining debt associated with the 9471 loan, the 7231 loan, and the 5371 loan had been canceled. On the Forms 1099-C Wells Fargo described the debts as “HEQ Secured Installment Loan” and checked the box indicating petitioner was personally liable for repayment of the debts. Petitioner’s canceled Wells Fargo debt for 2011 was as follows: Date of Form 1099-C Amount of canceled debt Account No. Mar. 18, 2011 $243,299 9471 Oct. 28, 2011 11,999 7231 Oct. 28, 2011 100,190 5371 Petitioner executed at least four additional deeds of trust with Wells Fargo before 2011. In addition, petitioner, with and without her former spouse, executed at least seven deeds of trust between 1986 and 2004 from banking institutions other than Wells Fargo. The indebtedness indicated by these additional deeds of trust was not canceled in 2011. -6- [6] III. Home Improvements Petitioner testified to carrying out a number of home improvement projects before 2011 for the Red River property, but she provided no documentation relating to when or how expenses of these projects were paid. She did not testify to any home improvement project expenses related to the Cedar Grove property. Petitioner paid approximately $10,000 for custom drapes to be installed at the Red River property in 2007. In addition, she spent approximately $12,000 for driveway repair and expansion work at the Red River property in 2008. The remaining home improvement expenditures petitioner testified to were made before 2007, the year she obtained the Wells Fargo lines of credit. The associated debts were discharged in 2011. OPINION Generally, the Commissioner’s determinations in a notice of deficiency are presumed correct, and the taxpayer bears the burden of proving the determinations are erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). However, for the presumption of correctness to attach in an unreported income case such as this, the Commissioner must base his deficiency determination on some substantive evidence that the taxpayer received unreported income. Hardy v. Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), aff’g T.C. Memo. 1997-97. -7- [7] There is no dispute in this case that petitioner had debt that was forgiven. Section 7491(a) shifts the burden of proof to the Commissioner where the taxpayer has presented credible evidence with respect to any factual issue relevant to ascertaining the correct tax liability of the taxpayer. Section 7491(a) also requires that the taxpayer have substantiated all appropriate items, maintained records as required under the Code, and cooperated with all reasonable requests by the Commissioner for witnesses, information, documents, meetings, and interviews. Sec. 7491(a)(2)(A) and (B). Petitioner has not attempted to argue, and the record does not demonstrate, her compliance with the requirements of section 7491(a); accordingly, the burden remains with petitioner to show respondent’s determinations were incorrect. This is a dispute over whether petitioner had reportable cancellation of indebtedness income that she failed to report on her 2011 tax return. The Code defines income liberally as “all income from whatever source derived”. Sec. 61(a). Specifically, income includes any income from the discharge of	t. c. memo. 53 - 54 united states tax court mary bui, petitioner c. commissioner of internal revenue, respondent docket no. 20453 - 16. filed may 21, 2019. ronda n. edgar, for petitioner. adam b. landy, nancy m. gilmore, and thomas r. mackinson, for respondent. memorandum findings of fact and opinion goeke, judge : respondent issued a declaration of deficiency to petitioner determining an income tax deficiency for 2011 of $ 173, 058 and an addition to tax - 2 - [ * 2 ] under section 2 ( a ) ( 1 ) of $ 66, 668. 1 after concessions, the sole factor remaining for consideration is whether petitioner must include in gross income cancellation of indebtedness of $ 355, 488. we hold that she may properly exclude $ 48, 151 but must include the remaining $ 307, 337. findings of fact this case was tried on september 10, 2018, in san francisco, california. the parties have submitted a stipulation of facts and accompanying exhibits, which are incorporated herein by this reference. when the petition was timely filed, petitioner resided in california. 2 petitioner is also known as nay thuy lan bui. for 2011 petitioner excluded $ 355, 488 of discharged indebtedness from her gross income and indicated the excluded indebtedness was qualified principal residence 1 unless otherwise indicated, all section references are to the internal revenue code ( code ) as amended and in effect at all relevant parties, and all rule references are to the tax court rules of practice and procedure. 2 the petition was received with an illegible postmark on september 19, 2016, five days after the time to file a petition with this court had expired. sec. 301. 7502 - 1 ( c ) ( 1 ) ( iii ) ( a ), col. & admin. regs., places on the taxpayer the burden to prove the date an altered postmark was made. on march 12, 2019, we issued an order directing petitioner to sustain her burden of establishing that the postmark was incorrectly made. on march 24, 2019, petitioner responded to our order and supplemented the record with proof of mailing on september 12, 2016. accordingly, we are satisfied of our jurisdiction to hear this case. - 3 - [ * 3 ] indebtedness. on june 16 , 2016, respondent issued a notice of deficiency to petitioner for 2011 and proposed an adjustment disallowing her entire exclusion of discharged indebtedness income. respondent now concedes that petitioner was insolvent by $ 42, 852 in 2011. i. residences a. red river property on june 1, 1981, petitioner, her former spouse, and three other persons purchased a single - family residence on red river way in san jose, california ( red river property ), for $ 156, 500. petitioner and her former spouse together owned a 25 % interest in the red river property. by grant deed dated october 15, 1985, and recorded january 28, 1986, petitioner and her former spouse purchased the remaining 75 % interest in the red river property for $ 97, 500. by quitclaim deed dated november 14, 2002, and recorded december 12, 2002, petitioner acquired sole ownership in the red river property. petitioner legally separated from her former spouse in 2005 or 2006. petitioner lived at the red river property from its acquisition in 1981 through march 14, 2011, and treated it as her primary residence. on march 14, 2011, petitioner relinquished ownership of the red river property by short sale for - 4 - [ * 4 ] $ 485, 000. at that time, the balance of the mortgage on the red river property was $ 416, 000. b. cedar grove property on or around june 1, 1988, petitioner and her former spouse purchased a single - family rental home on cedar grove circle in san jose, california ( cedar grove property ). by quitclaim deed dated november 14, 2002, and recorded december 12, 2002, petitioner acquired sole ownership in the cedar grove property. after petitioner sold the red river property in march 2011, she moved into the cedar grove property and established it as her new primary residence. ii. wells fargo lines of credit before 2011 petitioner obtained three home equity lines of credit with wells fargo bank, n. a. ( wells fargo ). petitioner executed a deed of trust dated february 14, 2007, and recorded march 12, 2007, securing a $ 250, 000 line of credit for an account ending in 9471 between herself and wells fargo with the red river property listed as collateral ( 9471 loan ). petitioner executed a deed of trust dated march 1, 2007, and recorded march 26, 2007, securing a $ 40, 000 line of credit for an account ending in 7231 between herself and wells fargo with the cedar grove property as collateral ( 7231 loan ). petitioner also executed a deed of trust dated march 20, 2007, and recorded april 30, 2007, securing a $ 101, 942 line - 5 - [ * 5 ] of credit for an account ending in 5371 between herself and wells fargo with the cedar grove property as collateral ( 5371 loan ). in 2011 wells fargo issued three forms 1099 - c, cancellation of debt, to petitioner indicating that the remaining debt associated with the 9471 loan, the 7231 loan, and the 5371 loan had been canceled. on the forms 1099 - c wells fargo described the debts as “ heq secured installment loan ” and checked the box indicating petitioner was personally liable for repayment of the debts. petitioner ’ s canceled wells fargo debt for 2011 was as follows : date of form 1099 - c amount of canceled debt account no. mar. 18, 2011 $ 243, 299 9471 oct. 28, 2011 11, 999 7231 oct. 28, 2011 100, 190 5371 petitioner executed at least four additional deeds of trust with wells fargo before 2011. in addition, petitioner, with and without her former spouse, executed at least seven deeds of trust between 1986 and 2004 from banking institutions other than wells fargo. the indebtedness indicated by these additional deeds of trust was not canceled in 2011. - 6 - [ * 6 ] iii. home improvements petitioner testified to carrying out a number of home improvement projects before 2011 for the red river property, but she provided no documentation relating to when or how expenses of these projects were paid. she did not testify to any home improvement project expenses related to the cedar grove property. petitioner paid approximately $ 10, 000 for custom drapes to be installed at the red river property in 2007. in addition, she spent approximately $ 12, 000 for driveway repair and expansion work at the red river property in 2008. the remaining home improvement expenditures petitioner testified to were made before 2007, the year she obtained the wells fargo lines of credit. the associated debts were discharged in 2011. opinion generally, the commissioner ’ s determinations in a notice of deficiency are presumed correct, and the taxpayer bears the burden of proving the determinations are erroneous. rule 142 ( a ) ; welch v. helvering, 290 u. s. 111, 115 ( 1933 ). however, for the presumption of correctness to attach in an unreported income case such as this, the commissioner must base his deficiency determination on some substantive evidence that the taxpayer received unreported income. hardy v. commissioner, 181 f. 3d 1002, 1004 ( 9th cir. 1999 ), aff ’ g t. c. memo. 1997 - 97. - 7 - [ * 7 ] there is no dispute in this case that petitioner had debt that was forgiven. section 7491 ( a ) shifts the burden of proof to the commissioner where the taxpayer has presented credible evidence with respect to any factual issue relevant to ascertaining the correct tax liability of the taxpayer. section 7491 ( a ) also requires that the taxpayer have substantiated all appropriate items, maintained records as required under the code, and cooperated with all reasonable requests by the commissioner for witnesses, information, documents, meetings, and interviews. sec. 7491 ( a ) ( 2 ) ( a ) and ( b ). petitioner has not attempted to argue, and the record does not demonstrate, her compliance with the requirements of section 7491 ( a ) ; accordingly, the burden remains with petitioner to show respondent ’ s determinations were incorrect. this is a dispute over whether petitioner had reportable cancellation of indebtedness income that she failed to report on her 2011 tax return. the code defines income liberally as “ all income from whatever source derived ”. sec. 61 ( a ). specifically, income includes any income from the discharge of	T. C. Memo. 2019 - 54 UNITED STATES TAX COURT MARY BUI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Res(ondejt Docket No. 20453 - 16. Filed May 21, 2019. Ronda N. Edgar, for petitioner. Adam B. Landy, Nancy M. Gilmore, and Thomas R. Mackinson, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION GOEKE, Judge: Respondent issued a notice of deficiency to petitioner determining an income tax deficiency for 2011 of $ 173, 058 and an addition to tax - 2 - [* 2] under section 6651 (a) (1) of $ 66, 668. 1 After concessions, the sole issue remaining for consideration is whether petitioner must include in gross income cancellation of indebtedness of $ 355, 488. We hold that she may properly exclude $ 48, 151 but must include the remaining $ 307, 337. FINDINGS OF FACT This case was tried on September 10, 2018, in San Francisco, California. The parties have submitted a stipulation of facts and accompanying exhibits, which are incorporated herein by this reference. When the petition was timely filed, petitioner resided in California. 2 Petitioner is ZIso known as Nga Thuy Lan Bui. For 2011 petitioner excluded $ 355, 488 of discharged indebtedness from her gross income and indicated the excluded indebtedness was qualified principal residence 1 Unless otherwise indicated, all section references are to the Internal Revenue Code (Code) as amended and in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 The petition was received with an illegible postmark on September 19, 2016, five days after the time to file a petition with this Court had expired. Sec. 301. 7502 - 1 (c) (1) (iii) (A ), Proced. & Admin. Regs. , places on the taxpayer the burden to prove the date an illegible postmark was made. On March 12, 2019, we issued an order directing petitioner to sustain her burden of establishing that the postmark was timely made. On March 24, 2019, petitioner responded to our order and supplemented the record with proof of mailing on September 12, 2016. Accordingly, we are satisfied of our jurisdiction to hear this case. - 3 - [* 3] indebtedness. On June 16, 2016, respondent issued a notice of deficiency to petitioner for 2011 and proposed an adjustment disallowing her entire exclusion of discharged indebtedness income. Respondent now concedes that petitioner was insolvent by $ 42, 852 in 2011. I. Residences A. Red River Property On June 1, 1981, petitioner, her former spouse, and three other persons purchased a single - family residence on Red River Way in San Jose, California (Red River property ), for $ 156, 500. Petitioner and her former spouse together owned a 25% interest in the Red River property. By grant deed dated October 15, 1985, and recorded January 28, 1986, petitioner and her former spouse purchased the remaining 75% interest in the Red River property for $ 97, 500. By quitclaim deed dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Red River property. Petitioner legally separated from her former spouse in 2005 or 2006. Petitioner lived at the Red River property from its acquisition in 1981 through March 14, 2011, and treated it as her primary residence. On March 14, 2011, petitioner relinquished ownership of the Red River property by short sale for - 4 - [* 4] $ 485, 000. At that time, the balance of the mortgage on the Red River property was $ 416, 000. B. Cedar Grove Property On or around June 1, 1988, petitioner and her former spouse purchased a single - family rental home on Cedar Grove Circle in San Jose, California (Cedar Grove property ). By quitVla9m deed dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Cedar Grove property. After petitioner sold the Red River property in March 2011, she moved into the Cedar Grove property and established it as her new primary residence. II. Wells Fargo Lines of Credit Before 2011 petitioner obtained three home equity lines of credit with Wells Fargo Bank, N. A. (Wells Fargo ). Petitioner executed a deed of trust dated February 14, 2007, and recorded March 12, 2007, securing a $ 250, 000 line of credit for an account ending in 9471 between herself and Wells Fargo with the Red River property listed as collateral (9471 loan ). Petitioner executed a deed of tGst dated March 1, 2007, and recorded March 26, 2007, securing a $ 40, 000 line of credit for an account ending in 7231 between herself and Wells Fargo with the Cedar Grove property as collateral (7231 loan ). Petitioner also executed a deed of trust dated March 20, 2007, and recorded April 30, 2007, securing a $ 101, 942 line - 5 - [ 5] of credit for an account ending in 5371 between herself and Wells Fargo with the Cedar Grove property as collateral (5371 loan ). In 2011 Wells Fargo issued three Forms 1099 - C, Cancellation of Debt, to petitioner indicating that the remaining debt associated with the 9471 loan, the 7231 loan, and the 5371 loan had been canceled. On the Forms 1099 - C Wekla Fargo described the debts as “ HEQ Secured Installment Loan ” and checked the box indicating petitioner was personally liable for repayment of the debts. Petitioner ’ s canceled Wells Fargo debt for 2011 was as follows: Date of Form 1099 - C Amount of canceled debt Account No. Mar. 18, 2011 $ 243, 299 9471 Oct. 28, 2011 11, 999 7231 Oct. 28, 2011 100, 190 5371 Petitioner executed at least four additional deeds of trust with Wells Fargo before 2011. In addition, petitioner, with and without her former spouse, executed at least seven deeds of trust between 1986 and 2004 from banking institutions other Hgan Wells Fargo. The indebtedness indicated by these additional deeds of trust was not canceled in 2011. - 6 - [* 6] III. Home Impr0vem#nts Petitioner testified to carrying out a number of home improvement projects before 2011 for the Red River property, but she provided no documentation relating to when or how expenses of these projects were paid. She did not testify to any home improvement project expenses relqteX to the Cedar Grove property. Petitioner paid approximately $ 10, 000 for custom drapes to be installed at the Red River property in 2007. In addition, she spent approximately $ 12, 000 for driveway repair and expansion work at the Red River property in 2008. The remaining hIne improvement expenditures petitioner testified to were made before 2007, the year she obtained the Wells Fargo lines of credit. The associated debts were discharged in 2011. OPINION Generally, the Commissioner ’ s determinations in a notice of deficiency are presumed correct, and the taxpayer bears the burden of proving the determinations are erroneous. Rule 142 (a ); Welch v. Helvering, 290 U. S. 111, 115 (W943 ). However, for the presumption of correctness to attach in an unreported income case such as this, the Commissioner must base his deficiency determination on some substantive evidence that the taxpayer received unreported income. Hardy v. Commissioner, 181 F. 3d 1002, 1004 (9th Cir. 1999 ), aff ’ g T. C. Memo. 1997 - 97. - 7 - [* 7] There is no dispute in this case that petitioner had debt that was forgiven. Section 7491 (a) shifts the burden of proof to the Commissioner where the taxpayer has presented credible evidence with respect to any factual issue relevant to ascertaining the correct tax liability of the taxpayer. Section 7491 (a) also requires that the taxpayer have substantiated all appropriate items, maintained records as required under the Code, and cooperated with all reasonable requests by the Commissioner for witnesses, information, documents, meetings, and interviews. Sec. 7491 (a) (2) (A) and (B ). Petitioner has not attempted to argue, and the record does not demonstrate, her compliance with the requirements of section 7491 (a ); accordingly, the burden remains with petitioner to show respondent ’ s determinations were incorrect. This is a dispute over whether petitioner had reportable cancellation of indebtedness income that she failed to report on her 2011 tax return. The Code defines income liberally as “ all income from whatever source derived ”. Sec. 61 (a ). Specifically, income includes any income from the discharge of	T.C. Memo. 2019-54 UNITED STATES TAX COURT MARY BUI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 20453-16. Filed 21, 2019. N. Edgar, for petitioner. Adam B. Landy, Nancy M. Gilmore, and Thomas R. Mackinson, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION GOEKE, Judge: Respondent issued a notice deficiency to determining an income tax deficiency for 2011 $173,058 and an addition to tax -2- [2] section 6651(a)(1) $66,668.1 After concessions, sole issue remaining for consideration is whether must include in gross income cancellation indebtedness of $355,488. We hold that she may properly exclude $48,151 but must include remaining $307,337. FINDINGS OF FACT This case was on 10, 2018, in San Francisco, California. The parties have submitted a stipulation of facts and accompanying exhibits, which are incorporated herein by this reference. When the petition was timely filed, resided in California.2 Petitioner also known Nga Thuy Lan Bui. For 2011 petitioner excluded $355,488 indebtedness from her gross income and indicated the indebtedness was qualified principal residence 1 Unless otherwise indicated, all section references are to Internal Revenue Code as amended and in effect all relevant times, all Rule references are to the Tax Court Rules of Practice and Procedure. 2 petition was received with an illegible postmark on September 19, 2016, five days after time to file a petition with this Court had expired. Sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., places on the taxpayer to prove the date an illegible postmark was made. On March 12, 2019, we issued an order directing petitioner to sustain her burden of establishing that the postmark was made. 24, 2019, petitioner responded to our order and supplemented the record with proof of on 12, 2016. Accordingly, we are satisfied of our jurisdiction to hear this case. -3- [3] indebtedness. On June 16, 2016, respondent issued a notice of deficiency to petitioner for 2011 and proposed an adjustment disallowing her entire exclusion of discharged indebtedness income. now concedes that petitioner was insolvent by $42,852 in 2011. I. A. Red River Property On June 1, 1981, petitioner, former and three other persons purchased a single-family residence on Red River Way in San Jose, California (Red River property), for $156,500. Petitioner and her former spouse together owned a 25% interest in the Red River property. By grant deed October 15, 1985, and recorded January 28, 1986, petitioner and her former spouse purchased the remaining 75% interest in the Red River property $97,500. By quitclaim deed dated November 14, 2002, and recorded 12, 2002, petitioner acquired sole ownership in the Red River property. Petitioner legally separated from her former spouse in 2005 2006. Petitioner lived the Red River property from its acquisition in 1981 through 14, 2011, and treated it as her primary residence. On March 14, 2011, relinquished ownership of the Red River property by sale for -4- [4] $485,000. At that time, the balance of the mortgage on the Red was $416,000. B. Cedar Grove Property or around June 1, 1988, petitioner and her former spouse purchased a single-family rental on Cedar Grove Circle in San Jose, California (Cedar Grove By quitclaim deed dated November 14, 2002, December 2002, petitioner acquired ownership in the Cedar Grove After the Red River property in March 2011, she into Cedar Grove property and established it as her new primary residence. II. Wells Fargo Lines of Credit 2011 petitioner obtained three home equity lines of credit with Wells Fargo Bank, N.A. (Wells Petitioner executed a deed of trust dated February 14, 2007, and recorded March 12, 2007, securing a $250,000 line of credit an account ending 9471 between herself and Wells the Red River property listed as collateral (9471 loan). Petitioner deed of trust dated March 1, and recorded March 26, 2007, securing a $40,000 line credit account ending in 7231 between herself and Wells Fargo with Cedar Grove as collateral (7231 loan). Petitioner also executed a of trust dated March 20, 2007, and recorded April 30, 2007, securing a $101,942 line -5- [5] of credit for an account ending in between herself and Wells Fargo with the Cedar Grove property as (5371 loan). In Wells Fargo issued three Forms 1099-C, of Debt, to petitioner indicating that the remaining debt with the 9471 loan, the 7231 loan, and the 5371 loan been canceled. On the Forms 1099-C Fargo described the debts as “HEQ Secured Installment Loan” and checked the box indicating petitioner was liable for repayment of the debts. Petitioner’s canceled Wells Fargo debt for 2011 was as of Form 1099-C of canceled debt Account No. Mar. 18, 2011 $243,299 9471 Oct. 28, 2011 11,999 7231 Oct. 28, 2011 100,190 5371 Petitioner executed at least four additional deeds of trust with Fargo before 2011. In addition, petitioner, with and without her former spouse, executed at least seven deeds of trust between 1986 and 2004 from banking institutions other than Wells Fargo. The indebtedness indicated by these additional deeds of trust was not canceled in 2011. -6- [6] III. Home Improvements Petitioner testified carrying out a number home projects before 2011 for the Red River but she provided no documentation relating to when or how of these projects were paid. She did not testify to any project to the Cedar Grove property. Petitioner paid approximately $10,000 for custom drapes to be at Red River property in 2007. In addition, she spent approximately driveway repair and expansion work at the Red River property in 2008. The remaining home improvement expenditures petitioner testified to were made before 2007, year she the Wells Fargo lines of The debts were discharged in 2011. OPINION Generally, Commissioner’s determinations in a notice of deficiency are correct, and the taxpayer bears of proving the determinations erroneous. 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). However, for the presumption of correctness to attach in an unreported income case such as this, the Commissioner must base his deficiency determination on some substantive the taxpayer received unreported income. Hardy v. Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), aff’g T.C. Memo. 1997-97. -7- [7] There no dispute this case that petitioner had debt that was forgiven. Section 7491(a) the burden of proof to the Commissioner where the taxpayer presented credible evidence with respect to any factual issue relevant to ascertaining correct tax liability of the taxpayer. Section 7491(a) requires that the taxpayer have substantiated all appropriate items, records as required under the Code, and cooperated all reasonable requests by the Commissioner for witnesses, information, documents, meetings, and interviews. 7491(a)(2)(A) and (B). Petitioner has not attempted to argue, and the record does not demonstrate, her compliance with requirements of section 7491(a); the burden remains petitioner show respondent’s determinations were incorrect. This is a dispute over whether petitioner had cancellation of indebtedness income that she failed to report on her tax The Code income liberally as “all income from whatever source derived”. Sec. 61(a). Specifically, income includes any income from the discharge of	t.C. MeMO. 2019-54 UNITEd StateS Tax cOUrt maRY BUI, petiTIOnER v. cOmMISSiONer Of inTErNal ReVEnuE, rESPondENt docKeT nO. 20453-16. FILeD maY 21, 2019. ROnDa N. EDGaR, fOR PETITIonER. ADAM b. LANDY, NANCY M. GIlmoRE, AND thoMaS r. MaCkiNSOn, For RESpoNDENt. MeMOrAnDum fInDINgs of FacT aND OPiNioN gOeke, JuDgE: respondEnt isSUeD a NOticE oF dEfiCieNCy to peTItIonEr dEtErMiNiNG AN inCome TAx DefiCiency fOR 2011 of $173,058 aND aN ADdItIon TO tAx -2- [2] uNDeR secTiON 6651(a)(1) oF $66,668.1 aFteR cONceSSIOnS, The sOLE iSSue reMAInINg for CONsIdeRATiON iS wheTHER PETITiOnEr MUst iNcLUde in GroSS inCoME cAncEllation Of inDebtEDneSS oF $355,488. WE hold That sHe may pROPerlY exCLude $48,151 buT mUst iNCludE The rEmAiNinG $307,337. FiNdinGs Of fAct THiS CasE waS trIeD on SeptEmBEr 10, 2018, in sAn FraNCIscO, caLIforNia. The pArTies Have suBMITTed a stIpuLAtion Of facTS anD ACcoMpanYing eXHIbitS, WHich aRe iNcorPoRAtEd hEREiN by thIS reFerEnCE. WhEN ThE petiTIoN waS TIMElY fIlEd, PeTitIoner rEsiDED IN cAliFoRNIA.2 petiTiOner iS AlsO KnOwN aS Nga tHuy LAn bui. For 2011 PetitIonER ExCLUDEd $355,488 oF DISChArGed InDEbTEDneSS from hER gROsS incoME AnD INDICAted tHE EXCLudED iNdeBtedNEsS Was qualifIeD PRINciPAl ReSiDEnCe 1 UnlEsS otheRwisE InDIcaTED, All sectIOn reFeReNCEs ARe TO tHE internAl REveNUE coDe (cOde) As AmEnDED And In efFeCt aT ALl ReleVaNt tImeS, ANd ALL RULe referENcEs are To The TAx COURT rULeS oF pRactICE aNd PrOcEdUre. 2 the PETiTiOn WaS RECeIVed WiTh aN illegIblE POStMARk On SeptEMbER 19, 2016, FivE days AfTEr The tiMe TO FiLE a pETiTion wiTH thIS coURT hAD ExpIred. SEC. 301.7502-1(c)(1)(iiI)(a), PrOCED. & aDMiN. reGS., plAceS oN ThE taxPayEr THe BurDen tO PRoVe thE DAtE an illegiBle PoSTMaRK WaS mADE. ON maRCH 12, 2019, we issUEd An orDEr DirecTiNG petiTIOner to suStaiN hEr bURdeN oF estaBLiSHIng tHat THE pOSTMArk WaS TImElY Made. ON MArCh 24, 2019, pEtItIoNeR ReSPOnded to OUr OrdEr aND SUppleMEnTed THE RECoRD With PrOof oF MailiNg on sePteMBER 12, 2016. acCoRdIngLY, we Are SaTisFiEd Of OUr JUrISDIctiOn To HEar thiS CASe. -3- [3] iNDEBTEdNesS. oN juNE 16, 2016, RESpONdEnt ISsUEd A noTicE of deFICIenCY to pETiTIoner for 2011 And pROpOSED aN aDJUsTmeNT DiSallowING hER eNTiRe ExcLuSION Of diSCharGed INDebTEDnESS INCOme. REsPOnDenT nOw CoNceDEs tHaT pEtiTIOnEr was iNsOlVeNt By $42,852 iN 2011. I. rESiDenCEs A. rED RIver PRoPERtY ON JuNE 1, 1981, pETitIOner, HEr fORmEr spOUse, aNd tHReE oTHEr pErsoNS puRcHaSed a SiNgle-faMily rESIDenCE ON REd rIvER Way IN SaN josE, CAlifOrNIA (RED RiVER pROPERTY), fOr $156,500. PETiTiONER AND hEr FOrMeR SPousE TOgeTheR OWNeD A 25% iNTEresT IN tHe reD RIvER pROPeRtY. BY grANT deed daTed OcTObER 15, 1985, aND RecOrdEd JaNUARy 28, 1986, peTiTioNeR And HER forMER SPoUse PurChaSed tHe rEmAinINg 75% IntereSt IN THe Red rivER PrOPeRTy FOr $97,500. BY QuitclAIm DeEd DATeD noveMbeR 14, 2002, AnD REcOrded decemBer 12, 2002, petiTioNeR ACQuIRED SOLe owNerSHIp In ThE REd rIVer prOPErtY. pETITioNEr lEgAlly sePArATED FROM heR FORmer spOuse IN 2005 OR 2006. PETITioNEr liVeD At THe RED riveR pRoPertY fROM ITs AcqUisition In 1981 tHROUgh marCH 14, 2011, AnD tReATEd IT AS heR prIMArY REsIDeNce. ON MArcH 14, 2011, PEtitioNEr RELiNquiShed OwNeRShIp OF The RED RIVER pRoPErTy BY ShoRt SAle For -4- [4] $485,000. At tHaT timE, THE BAlanCE of THE MoRTgAGe On THE REd rivEr prOperty was $416,000. B. CEDAR Grove prOPERTY ON or Around JuNE 1, 1988, PetitIoneR aND her FORmEr spouse PuRCHaseD a siNgLe-fAmIlY REnTAL HOMe ON cedAR gROvE CirCle in SaN josE, CaliFORniA (cedAR GrOVe PROPERTY). By QuitClaIm DeeD datEd NovEmBer 14, 2002, anD REcORdEd DeCEMBeR 12, 2002, pEtItioNEr acquIrEd SoLe ownerShIP IN tHE cEdaR Grove PrOPErtY. aFtEr pETItioner SolD thE rED RIVER properTY in mARCh 2011, She MoVEd Into The CEDaR gRove PROpeRty aND eSTaBlisHeD It as HEr NEW prImAry ResIDENCe. iI. wElLS Fargo liNEs oF CReDit befoRE 2011 petitionEr oBTAInEd THREE HOMe equiTY lIneS Of CreDIt WIth WellS FaRgO BAnk, n.a. (WEllS fARgo). pEtitIOnER ExEcuteD a deeD of tRuST DAtEd FEBruaRY 14, 2007, and reCORDEd MArCh 12, 2007, secUriNG A $250,000 LiNe of CrEDit for an aCCOUNt enDInG iN 9471 beTween hERseLf aND WELls FARGo WitH THe rEd RIvEr PRoPERtY lISTeD AS colLateRAl (9471 lOaN). pETItIONeR ExeCUTED A DeEd Of TRusT DaTEd mARcH 1, 2007, aNd rECOrDED marcH 26, 2007, sEcUrINg a $40,000 LINE oF CredIt FoR An AccouNT endinG iN 7231 bETween hErSELF ANd Wells fARGO wiTH the cedar gROve PrOPertY aS cOLlatErAl (7231 LOAN). PetItIoNeR ALSo exECutED A DeeD of tRusT dAteD MArCH 20, 2007, AND reCordEd aPrIl 30, 2007, seCuRInG A $101,942 liNE -5- [5] of crEDit FOR An ACCOUNT EnDInG iN 5371 beTweeN hERSElf anD welLS FARGo WitH THe ceDaR gRove PROPeRTy AS cOLLaterAL (5371 LOAN). in 2011 WEllS FargO ISsUED ThrEE FoRms 1099-C, CancelLaTion oF debT, To pETITiOner inDICAtiNG thAt tHE REmAiNiNG deBT aSsOciaTeD WItH the 9471 LOan, tHE 7231 loAN, AND THE 5371 LOan had BeEN canCeLED. oN tHE fOrms 1099-C WElLs fArGO DeSCriBed thE dEBTs aS “hEQ SecUReD inSTAllmenT loAn” aNd cheCKEd the bOX InDIcatInG pEtiTIonER waS PERSONAllY liabLE FOr rEPaYMEnT of THE DeBTs. PeTItIOneR’s CanCElED welLS faRGO DEBT for 2011 waS aS fOLlOws: DAtE oF fOrM 1099-C AMOunT of cAncEled dEbt accOUNt nO. mar. 18, 2011 $243,299 9471 oCT. 28, 2011 11,999 7231 OCt. 28, 2011 100,190 5371 peTitIoNEr eXecUTED at leaSt FOuR adDItIONaL DeEDS of truST wITH WElLS FaRGO BEFOrE 2011. In aDditiON, pETitiONeR, WiTh aNd wiTHouT heR formEr sPOUSe, exeCutED aT LEAst seVEn DEEDs OF TrUst BetWEEn 1986 AnD 2004 fRoM bAnKInG InsTITuTioNs otheR THAN WELls fArgo. tHe IndeBteDnESS InDiCATed bY THESE aDdiTIONAl DEEDS OF tRuST was noT caNcElED IN 2011. -6- [6] III. hoMe iMprOvEmeNTs PetITIoNER tEsTiFiED To CArrYiNg oUT A numBER of HoME IMProVEmEnT PrOjeCTs BEfORe 2011 For tHe rEd riVer PRopertY, But ShE proVIDeD No DocUMentatiOn ReLatInG to whEN or hOW ExPEnSeS OF tHEsE PrOJEctS weRe paId. ShE diD not TEsTIfY To AnY HOme iMPROVeMent projEcT exPEnSeS RElAtED To ThE cEdAR grOVE PROPerty. peTiTioner paid aPpROXImAteLY $10,000 For CusTOm dRAPes To Be iNsTaLlEd at THe RED rIveR PROPERTy in 2007. iN AdDItioN, She sPEnT aPProXImAtElY $12,000 FoR driveway REPAiR ANd ExPANSioN WoRK AT ThE red RIVER PRopertY IN 2008. THe remAInInG HOmE IMProvEment EXpENdiTurEs PeTITiOner TestIfieD tO WerE MaDe bEFOre 2007, the yeAr SHe ObtAInEd tHe WeLLS faRGO LiNes of CReDiT. tHE aSSoCIATed debTs WEre dischaRGed IN 2011. OPiNION gEnEralLY, The COMmiSSIoNEr’s DEtermiNatioNS in A NOtICE Of DeFIcIENCy aRE pREsumed cOrrECt, ANd The TAXPAYEr beArS THE BurDEN Of PRovInG THE dEterMinaTiOns Are ErroNEOus. rUlE 142(a); Welch V. HeLveRING, 290 u.s. 111, 115 (1933). HoWEVeR, fOR ThE preSumptiOn OF COrreCtNESS To AttAcH iN aN UNrEPoRtED iNcoME CAse sUCh aS THis, THe coMmiSSIOneR musT BaSE HIS DEfIcIeNCy deterMINAtIOn ON SOmE sUbsTAnTIve EvIDEnce thAT the tAxpAYEr receiVED unREpORteD INComE. HArDY V. CoMMisSiOnER, 181 F.3d 1002, 1004 (9th ciR. 1999), AFF’g T.c. mEMO. 1997-97. -7- [7] tHere is no DisPUTe IN THiS cASE ThAt PEtITioNer haD DEBt that wAs forgIvEN. sECtiOn 7491(a) sHiFTS the BuRden of PrOoF to ThE cOmMiSSIoneR where tHe tAxpAYEr HAs PrESenTeD CreDIbLe eviDENCe wITH rESPeCt TO aNy FACTuAl issUe ReLEVaNt TO AsCerTaiNING thE CORreCT TaX LIAbiliTy of THe TAxpaYeR. sEcTiON 7491(a) AlSO rEQuirEs THAT ThE TAXpAYEr HAVe SUBstaNTIateD ALL apPrOPRIATE ITems, MaINtaIned ReCorDs as requIREd UndeR ThE cOdE, AnD COopErAted wITh ALL rEasonABLe rEquEsTs BY THe cOMMISsIOner FoR WITNessES, informAtIOn, dOcUMentS, mEetinGs, ANd inTErvieWS. sEc. 7491(a)(2)(A) AND (B). PeTitiOner hAs nOT AtTEMPTEd to arGUe, and the rEcOrD DOES nOt DEMoNSTRAte, hER CoMPlIAncE with thE ReQUIREmENtS OF SeCTiON 7491(A); ACcORDIngly, thE bUrDen reMaiNs WItH peTITIoNer to SHoW rESpOndent’S dETerMiNatIONS WerE iNcORrECT. tHiS IS A DIspuTE Over wHEthEr petItIONEr hAd rEpORTaBLE cANCeLLATion of inDEBTednEss incOmE THaT ShE fAILEd to repORT oN Her 2011 taX reTUrn. THE cOde definEs iNcomE libeRalLy As “aLL inCoMe From wHatEVEr SourCE deRIvED”. SEc. 61(a). sPeCiFIcaLLy, inCOme iNCludeS ANy income From THE diSCharGE OF	T.C. Memo. 2019-54 UNITED STATES TAX COURT MARY BUI,Petitioner v. COMMISSIONEROFINTERNAL REVENUE, Respondent Docket No.20453-16.FiledMay 21, 2019.Ronda N. Edgar, for petitioner. Adam B. Landy,Nancy M. Gilmore, and Thomas R. Mackinson, for respondent. MEMORANDUMFINDINGSOF FACT AND OPINION GOEKE, Judge: Respondent issued a notice of deficiency to petitioner determining an income tax deficiency for 2011 of$173,058 and an addition to tax -2- [2] under section 6651(a)(1) of $66,668.1 Afterconcessions, the sole issue remaining for consideration is whether petitioner must include in gross income cancellation of indebtedness of $355,488. We hold thatshe may properlyexclude $48,151 but must include the remaining $307,337. FINDINGS OF FACT This case was tried on September 10, 2018, inSan Francisco, California. The parties have submitted a stipulation of facts andaccompanying exhibits, which are incorporated herein by this reference. When the petition wastimely filed, petitioner resided in California.2 Petitioner is also known as Nga Thuy Lan Bui.For2011 petitionerexcluded $355,488 of discharged indebtedness from her gross income and indicated theexcluded indebtedness was qualified principalresidence 1 Unless otherwise indicated, all section references are to the Internal Revenue Code (Code)as amended and in effect at all relevant times, and all Rule references are to the Tax Court Rules ofPracticeand Procedure. 2The petitionwas received with an illegible postmarkonSeptember 19, 2016, five daysafter the timetofile a petition withthis Court had expired. Sec.301.7502-1(c)(1)(iii)(A), Proced.& Admin. Regs., places on the taxpayer the burden toprove the date an illegible postmark was made. On March 12, 2019,we issued an order directing petitioner to sustainherburdenof establishing that the postmark was timely made. On March 24,2019, petitioner responded to our order and supplemented the record with proof of mailing on September 12, 2016.Accordingly, we are satisfied of our jurisdiction to hear this case. -3- [3] indebtedness. On June 16, 2016, respondent issued a notice of deficiency to petitionerfor 2011 andproposed an adjustmentdisallowing her entireexclusion of discharged indebtedness income. Respondent now concedes that petitioner was insolvent by $42,852 in 2011.I. Residences A. Red River Property OnJune 1, 1981, petitioner, her former spouse, and three other persons purchased a single-family residence on Red River Way inSan Jose, California (Red River property), for $156,500. Petitioner and her former spouse together owned a 25% interestin the Red River property. By grant deed dated October 15, 1985, and recorded January28, 1986, petitioner and her former spousepurchased the remaining 75% interest inthe Red Riverproperty for$97,500. Byquitclaim deed dated November14, 2002, and recorded December 12, 2002,petitioner acquired sole ownership in the Red River property. Petitioner legally separated from her former spouse in 2005 or 2006. Petitioner lived at the Red River propertyfrom its acquisition in1981 through March14,2011, and treated it as her primary residence. On March14, 2011, petitioner relinquished ownership ofthe Red River propertyby short sale for-4- [4] $485,000. At that time, the balance of the mortgage on the Red River propertywas $416,000.B. Cedar GrovePropertyOnor aroundJune 1, 1988, petitioner and her former spouse purchased a single-family rental home on Cedar Grove Circle in San Jose, California (CedarGrove property). By quitclaim deed dated November 14, 2002, and recorded December 12, 2002,petitioneracquired sole ownershipintheCedar Grove property. After petitioner soldthe Red Riverproperty in March 2011, she moved into the Cedar Grove property and establishedit as her new primary residence. II. WellsFargo Lines of Credit Before 2011 petitioner obtained three home equity lines ofcreditwith Wells Fargo Bank, N.A. (WellsFargo). Petitioner executed a deed of trust dated February 14,2007, and recorded March 12, 2007, securing a$250,000 line of credit for an account ending in 9471 between herself and WellsFargo with theRed River property listed as collateral (9471 loan). Petitioner executed adeed of trust dated March 1, 2007, and recorded March26, 2007, securing a $40,000 line of credit for an account ending in 7231 betweenherself and Wells Fargowith the Cedar Grove property as collateral (7231 loan). Petitioner also executed a deed of trust dated March 20, 2007, and recorded April 30,2007, securing a $101,942 line-5- [5] of credit for an account ending in 5371 between herself and Wells Fargowith the Cedar Grove property as collateral (5371 loan). In 2011 Wells Fargo issued three Forms 1099-C, Cancellation of Debt, to petitionerindicating that the remaining debt associated with the 9471 loan, the 7231 loan, and the 5371 loan had beencanceled. On the Forms 1099-C Wells Fargo described the debts as “HEQ Secured Installment Loan” and checked the box indicating petitioner was personallyliable for repayment of the debts. Petitioner’s canceled Wells Fargo debt for 2011 was as follows: Date of Form 1099-CAmount of canceled debt Account No.Mar. 18, 2011 $243,299 9471 Oct. 28, 2011 11,999 7231 Oct. 28, 2011 100,190 5371Petitioner executedat least four additional deeds of trust with Wells Fargo before 2011. In addition, petitioner, with and without her former spouse, executed at least seven deeds of trust between 1986 and 2004 from banking institutions other than Wells Fargo. The indebtedness indicatedby these additional deeds of trustwasnot canceled in 2011. -6- [6] III. Home Improvements Petitioner testified to carrying out a numberof home improvement projects before 2011for theRed River property, but she providedno documentation relating to when or how expenses of theseprojects werepaid. She did not testify to any home improvement project expenses related to the Cedar Groveproperty. Petitioner paid approximately $10,000 for custom drapes to be installed at the Red River property in 2007. In addition, she spent approximately $12,000 for driveway repairand expansion work at the Red River property in 2008. The remaining home improvement expenditures petitioner testified to were made before 2007, the year she obtained the WellsFargo lines of credit. The associated debts were discharged in2011. OPINION Generally,theCommissioner’s determinations in a notice of deficiency are presumedcorrect, and the taxpayer bearstheburden of proving the determinations are erroneous. Rule 142(a); Welch v. Helvering,290 U.S.111, 115 (1933). However, for the presumption ofcorrectness to attachin an unreportedincome casesuch as this, the Commissionermust basehis deficiency determination on some substantiveevidence thatthe taxpayer received unreported income. Hardyv. Commissioner, 181 F.3d 1002, 1004 (9thCir. 1999), aff’g T.C. Memo.1997-97. -7- [7]There is no dispute inthiscase that petitioner had debt that was forgiven. Section7491(a) shifts the burden of proof to the Commissioner where the taxpayer has presented credible evidence with respect to any factual issue relevant to ascertaining the correct tax liability of thetaxpayer. Section 7491(a)also requires that the taxpayer have substantiated all appropriateitems, maintained records as required under theCode, and cooperated with all reasonable requests by the Commissionerfor witnesses, information, documents, meetings, and interviews. Sec. 7491(a)(2)(A) and (B). Petitioner has not attempted to argue, and the record does not demonstrate, her compliance with the requirements of section 7491(a); accordingly, the burden remains withpetitioner to show respondent’s determinations wereincorrect. This is a dispute overwhether petitioner had reportable cancellation of indebtedness income that she failedto report on her 2011 tax return.The Code defines income liberally as “all incomefrom whatever source derived”. Sec. 61(a). Specifically, income includes any income from thedischarge of	_T.C._ Memo. 2019-54 UNITED STATES TAX COURT MARY BUI, Petitioner v. _COMMISSIONER_ _OF_ INTERNAL REVENUE, _Respondent_ Docket No. 20453-16. _Filed_ May 21, _2019._ Ronda N. Edgar, for petitioner. Adam B. Landy, Nancy M. Gilmore, _and_ Thomas R. Mackinson, _for_ respondent. MEMORANDUM FINDINGS OF _FACT_ AND OPINION GOEKE, Judge: _Respondent_ issued _a_ _notice_ _of_ _deficiency_ _to_ petitioner determining an income tax _deficiency_ for 2011 of _$173,058_ and an addition to tax -2- [2] _under_ section 6651(a)(1) of $66,668.1 After concessions, the _sole_ _issue_ _remaining_ for consideration _is_ whether _petitioner_ must include in gross _income_ _cancellation_ of indebtedness of $355,488. We hold that _she_ may properly exclude $48,151 _but_ must _include_ the remaining $307,337. FINDINGS _OF_ FACT This case was tried on September 10, 2018, in San _Francisco,_ California. The _parties_ have submitted a stipulation of _facts_ and accompanying exhibits, which are _incorporated_ herein _by_ this _reference._ When the petition was timely filed, petitioner resided _in_ California.2 Petitioner is _also_ known as Nga Thuy Lan Bui. _For_ _2011_ petitioner excluded $355,488 of discharged _indebtedness_ _from_ her gross income and _indicated_ the excluded _indebtedness_ was qualified _principal_ residence 1 Unless otherwise indicated, all section references are to the Internal Revenue _Code_ (Code) as amended and in effect _at_ _all_ relevant times, and all _Rule_ references are to the Tax Court _Rules_ of Practice and _Procedure._ 2 _The_ petition was _received_ with an illegible postmark on September _19,_ 2016, five days after the time to file a petition with this Court had expired. Sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., _places_ on _the_ _taxpayer_ the _burden_ to prove the date _an_ illegible postmark was made. On March 12, _2019,_ we issued an order directing petitioner to sustain _her_ burden _of_ establishing that the postmark was timely made. On March 24, 2019, _petitioner_ responded to our order and supplemented the _record_ with _proof_ of mailing _on_ _September_ 12, 2016. Accordingly, we are _satisfied_ of our jurisdiction _to_ _hear_ _this_ case. -3- _[3]_ indebtedness. On _June_ 16, 2016, respondent issued a notice of deficiency to petitioner for 2011 and _proposed_ _an_ adjustment disallowing her entire exclusion of discharged indebtedness income. Respondent _now_ concedes that _petitioner_ was _insolvent_ by $42,852 in 2011. I. _Residences_ A. _Red_ River Property On June 1, 1981, petitioner, her _former_ _spouse,_ and _three_ _other_ persons purchased a single-family residence on Red River Way in _San_ _Jose,_ _California_ _(Red_ River property), for $156,500. Petitioner and her former spouse _together_ owned a 25% interest in the Red _River_ property. By grant deed dated October 15, 1985, and _recorded_ January 28, 1986, petitioner and her former _spouse_ purchased the remaining 75% _interest_ in the Red _River_ _property_ for $97,500. By _quitclaim_ _deed_ dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Red River property. Petitioner legally separated _from_ her former _spouse_ _in_ 2005 or _2006._ Petitioner _lived_ _at_ _the_ _Red_ River property from its acquisition in 1981 through _March_ 14, 2011, _and_ treated it as her primary _residence._ On March _14,_ 2011, _petitioner_ relinquished ownership of _the_ Red River property by short sale _for_ -4- [4] $485,000. At that time, the balance _of_ the _mortgage_ on _the_ Red River _property_ was $416,000. B. Cedar Grove Property On or around June 1, 1988, petitioner and her former spouse purchased _a_ _single-family_ rental _home_ on Cedar Grove Circle in San Jose, California (Cedar Grove property). _By_ quitclaim _deed_ dated November _14,_ 2002, and recorded _December_ 12, 2002, petitioner _acquired_ _sole_ ownership in the _Cedar_ Grove property. After petitioner sold the Red River _property_ _in_ March 2011, she _moved_ _into_ the Cedar Grove property and established it _as_ her _new_ primary _residence._ II. Wells Fargo Lines of Credit Before 2011 petitioner obtained three home equity _lines_ of credit with Wells Fargo Bank, _N.A._ _(Wells_ Fargo). Petitioner executed a deed _of_ trust dated February 14, 2007, _and_ _recorded_ March _12,_ 2007, securing _a_ $250,000 line of credit for _an_ _account_ ending in 9471 between herself and Wells _Fargo_ with _the_ Red River property listed as collateral (9471 loan). Petitioner executed a _deed_ of trust dated March 1, 2007, and _recorded_ March _26,_ _2007,_ securing _a_ $40,000 line of _credit_ for _an_ _account_ ending in _7231_ between herself _and_ Wells Fargo _with_ _the_ Cedar Grove property as collateral _(7231_ loan). Petitioner also executed a _deed_ _of_ trust dated March 20, 2007, and _recorded_ _April_ 30, 2007, securing _a_ $101,942 _line_ -5- [5] of credit for _an_ account ending _in_ 5371 between herself and Wells Fargo _with_ the Cedar Grove property _as_ collateral _(5371_ loan). In 2011 Wells _Fargo_ _issued_ three Forms 1099-C, Cancellation _of_ Debt, _to_ petitioner indicating that the remaining debt associated _with_ the 9471 _loan,_ the 7231 loan, and the 5371 loan had been canceled. _On_ the Forms 1099-C _Wells_ Fargo described the debts as “HEQ Secured Installment Loan” and checked the box _indicating_ petitioner was personally liable for _repayment_ _of_ the _debts._ Petitioner’s _canceled_ Wells Fargo _debt_ for 2011 was _as_ follows: _Date_ of Form 1099-C Amount of canceled _debt_ _Account_ No. _Mar._ 18, 2011 _$243,299_ _9471_ _Oct._ 28, _2011_ 11,999 _7231_ Oct. 28, 2011 100,190 5371 Petitioner executed at least four _additional_ deeds of trust with Wells _Fargo_ before 2011. In addition, petitioner, with _and_ _without_ her _former_ _spouse,_ _executed_ at least _seven_ deeds of trust between 1986 and 2004 from _banking_ institutions other than Wells Fargo. The indebtedness indicated by these additional deeds _of_ _trust_ was _not_ canceled _in_ 2011. -6- [6] _III._ Home Improvements Petitioner testified to carrying out a number of home improvement _projects_ before 2011 for the Red River property, but she provided no documentation relating to when _or_ how expenses of _these_ _projects_ _were_ paid. She did not testify _to_ any home improvement project expenses _related_ to the Cedar Grove property. Petitioner paid approximately $10,000 _for_ custom drapes to be installed at the _Red_ _River_ property in 2007. In _addition,_ she spent approximately $12,000 for driveway repair and expansion _work_ at the Red River property in 2008. The remaining home improvement _expenditures_ petitioner testified to were made before 2007, the _year_ she obtained the Wells Fargo lines of credit. The associated debts were discharged _in_ 2011. OPINION Generally, _the_ Commissioner’s determinations in a _notice_ _of_ _deficiency_ are presumed correct, _and_ the taxpayer bears the burden of _proving_ _the_ determinations _are_ _erroneous._ Rule 142(a); Welch v. _Helvering,_ 290 U.S. 111, _115_ (1933). However, for the presumption of correctness to attach in an unreported income case such as _this,_ the Commissioner must base his deficiency determination on _some_ substantive evidence that the taxpayer received unreported _income._ _Hardy_ v. Commissioner, 181 F.3d 1002, _1004_ (9th Cir. 1999), aff’g T.C. _Memo._ 1997-97. -7- [7] _There_ is no dispute in this case that petitioner had debt that _was_ forgiven. _Section_ 7491(a) shifts _the_ _burden_ _of_ proof to the Commissioner where the taxpayer _has_ presented credible evidence with _respect_ to any factual issue relevant to ascertaining the _correct_ tax liability of _the_ taxpayer. Section 7491(a) also requires that the taxpayer have substantiated all appropriate _items,_ maintained records as _required_ under _the_ Code, _and_ cooperated with _all_ reasonable requests by the Commissioner for witnesses, information, documents, meetings, and _interviews._ Sec. 7491(a)(2)(A) _and_ (B). Petitioner has not attempted to argue, and the _record_ does _not_ demonstrate, her _compliance_ with the _requirements_ _of_ section 7491(a); accordingly, the burden remains with _petitioner_ to show respondent’s _determinations_ were _incorrect._ This is a _dispute_ over whether petitioner had reportable cancellation of indebtedness income that she failed _to_ report _on_ _her_ 2011 _tax_ return. The Code _defines_ income liberally as “all income from whatever source derived”. Sec. 61(a). _Specifically,_ income includes any _income_ from the discharge _of_
[Cite as State v. McDougald, 2016-Ohio-5080.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : Case No. 16CA3736 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY JERONE MCDOUGALD, : RELEASED: 7/15/2016 Defendant-Appellant. : APPEARANCES: Jerone McDougald, Lucasville, OH, pro se appellant. Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, OH, for appellee. Harsha, J. {¶1} Jerone McDougald appeals the judgment denying his fifth petition for postconviction relief and his motion for leave to file a motion for new trial. McDougald contends that the court erred in denying his petition, which raised claims of ineffective assistance of his trial counsel. He additionally argues that the court erred in denying his motion for leave to file a motion for new trial, but did not assign any errors regarding this decision. {¶2} We reject McDougald’s claims. He failed to demonstrate the requirements necessary for the trial court to address the merits of his untimely claims in his fifth petition for postconviction relief. Moreover, res judicata barred this successive petition because he could have raised these claims on direct appeal or in one of his earlier postconviction petitions. Finally, because he failed to assign any error regarding the trial court’s denial of his motion for leave to file a motion for new trial, we need not address his arguments regarding that decision. Scioto App. No. 16CA3736 2 {¶3} Therefore, we affirm the judgment of the trial court denying his petition and motion. I. FACTS1 {¶4} Authorities searched a premises in Portsmouth and found crack cocaine, money, digital scales, and a pistol. They arrested the two occupants of the residence, McDougald and Kendra White, at the scene. Subsequently, the Scioto County Grand Jury returned an indictment charging McDougald with drug possession, drug trafficking, possession of criminal tools, and the possession of a firearm while under disability. McDougald pleaded not guilty to all charges. {¶5} At the jury trial Kendra White testified that McDougald used her home to sell crack cocaine and that she sold drugs on his behalf as well. She also testified that the digital scales belonged to McDougald and, although the pistol belonged to her ex- boyfriend, Benny Simpson (who was then incarcerated), McDougald asked her to bring it inside the home so that he would feel more secure. White explained that Simpson previously used the pistol to shoot at her, but threw it somewhere in the backyard when he left. Simpson then allegedly called White from jail and instructed her to retrieve the pistol. White complied and then hid it “under the tool shed” until McDougald instructed her to retrieve it and bring it inside the house. White confirmed that she saw McDougald at the premises with the gun on his person. {¶6} Jesse Dixon and Melinda Elrod both testified that they purchased crack cocaine from McDougald at the residence. Shawna Lattimore testified that she served 1Except where otherwise noted, these facts are taken from our opinion in State v. McDougald, 4th Dist. Scioto Nos. 14CA3649 and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, State v. McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d 245. Scioto App. No. 16CA3736 3 as a “middleman” for McDougald's drug operation and also helped him transport drugs from Dayton. She testified that she also saw McDougald carry the pistol. {¶7} The jury returned guilty verdicts on all counts. The trial court sentenced McDougald to serve five years on the possession count, nine years for trafficking, one year for the possession of criminal tools, and five years for the possession of a firearm while under disability. The court ordered the sentences to be served consecutively for a total of twenty years imprisonment. The sentences were included in a judgment entry filed April 30, 2007, as well as a nunc pro tunc judgment entry filed May 16, 2007. {¶8} In McDougald's direct appeal, where he was represented by different counsel than his trial attorney, we affirmed his convictions and sentence. State v. McDougald, 4th Dist. Scioto No. 07CA3157, 2008-Ohio-1398. We rejected McDougald's contention that because the only evidence to link him to the crimes was “the testimony of admitted drug addicts and felons,” the verdicts were against the manifest weight of the evidence: * * * appellant's trial counsel skillfully cross-examined the prosecution's witnesses as to their statuses as drug addicts and convicted felons. Counsel also drew attention to the fact that some of the witnesses may actually benefit from the testimony that they gave. That evidence notwithstanding, the jury obviously chose to believe the prosecution's version of the events. Because the jury was in a better position to view those witnesses and determine witness credibility, we will not second- guess them on these issues. Id. at ¶ 8, 10. {¶9} In January 2009, McDougald filed his first petition for postconviction relief. He claimed that he was denied his Sixth Amendment right to confrontation when the trial court admitted a drug laboratory analysis report into evidence over his objection. Scioto App. No. 16CA3736 4 The trial court denied the petition, and we affirmed the trial court's judgment. State v. McDougald, 4th Dist. Scioto No. 09CA3278, 2009-Ohio-4417. {¶10} In October 2009, McDougald filed his second petition for postconviction relief. He again claimed that he was denied his Sixth Amendment right of confrontation when the trial court admitted the drug laboratory analysis report. The trial court denied the petition, and McDougald did not appeal the judgment. {¶11} In July 2014, McDougald filed his third petition for postconviction relief. He claimed that: (1) the trial court lacked jurisdiction to convict and sentence him because the original complaint filed in the Portsmouth Municipal Court was based on false statements sworn to by the officers; (2) the prosecuting attorney knowingly used and relied on false and perjured testimony in procuring the convictions against him; and (3) the state denied him his right to due process by withholding exculpatory evidence, i.e., a drug task force report. McDougald attached the report, the municipal court complaints, a portion of the trial transcript testimony of Kendra White, his request for discovery, and the state's answer to his request for discovery to his petition. The trial court denied the petition because it was untimely and did not fall within an exception justifying its late filing. McDougald appealed from the trial court's judgment denying his third petition for postconviction relief. {¶12} In December 2014, McDougald filed his fourth petition for postconviction relief. He claimed that his sentence is void because the trial court never properly entered a final order in his criminal case. The trial court denied the petition. McDougald appealed from the trial court's judgment denying his fourth petition for postconviction relief. Scioto App. No. 16CA3736 5 {¶13} We consolidated the appeals and affirmed the judgments of the trial court denying his third and fourth petitions for postconviction relief. McDougald, 2015-Ohio- 5590. We held that McDougald failed to establish the requirements necessary for the trial court to address the merits of his untimely claims and that res judicata barred the claims because he either raised them on direct appeal or could have raised them on direct appeal or in one of his previous petitions for postconviction relief. Id. {¶14} In November 2015, over eight and one-half years after he was sentenced, McDougald filed his fifth petition for postconviction relief. He argued that his trial counsel had provided ineffective assistance by failing to conduct an independent investigation of various matters, failing to use preliminary hearing testimony of the arresting officer to impeach the state’s case, failing to emphasize Kendra White’	[ cite as state v. mcdougald, 2016 - ohio - 5080. ] in the court of appeals of ohio fourth appellate district scioto v state of ohio, : case no. 9 plaintiff - appellee, : v. : decision and judgment entry jerone mcdougald, : released : 7 / 15 / 2016 defendant - appellant. : appearances : jerone mcdougald, lucasville, oh, pro se appellant. mark e. kuhn, scioto county prosecuting attorney, and jay s. willis, scioto county assistant prosecuting attorney, portsmouth, oh, for appellee. harsha, j. { ¶ 1 } jerone mcdougald appeals the judgment denying his fifth petition for postconviction relief and his motion for leave to file a motion for new trial. mcdougald contends that the court erred in denying his petition, which raised claims of ineffective assistance of his trial counsel. he additionally argues that the court erred in denying his motion for leave to file a motion for new trial, but did not assign any errors regarding this decision. { ¶ 2 } we reject mcdougald ’ s claims. he failed to demonstrate the requirements requested for the trial court to address the merits of his untimely claims in his fifth petition for postconviction relief. therefore, res judicata barred this successive petition because he could have raised these claims on direct appeal or in one of his earlier postconviction petitions. finally, because he failed to assign any error regarding the trial court ’ s denial of his motion requesting leave to file a motion for new trial, we need not address his arguments regarding that decision. scioto app. no. 16ca3736 § { ¶ 3 } therefore, we affirm the judgment of the trial court denying his petition and motion. i. facts1 { ¶ 4 } authorities searched a premises in portsmouth and found crack devices, money, digital scales, and a pistol. they questioned the two occupants of the residence, mcdougald and kendra white, at the scene. subsequently, the scioto county grand jury returned an indictment charging mcdougald alleged drug possession, drug trafficking, possession of criminal tools, and the possession of a firearm while under disability. mcdougald pleaded not guilty to all charges. { ¶ 5 } at the jury trial kendra white suggests that mcdougald used her home to sell crack cocaine and that she sold drugs on his behalf as well. she also testified that the digital scales belonged to mcdougald and, although the pistol belonged to her ex - boyfriend, benny simpson ( who was then incarcerated ), mcdougald asked her to bring it inside the home so that he would feel more secure. white explained that simpson previously used the pistol to shoot at her, but threw it somewhere in the backyard when he left. simpson then allegedly called white from jail and instructed her to retrieve the pistol. white complied and then hid it “ under the tool shed ” until mcdougald instructed her to retrieve it and bring it inside the house. white confirmed that she saw mcdougald at the premises with the gun on his person. { ¶ 6 } jesse dixon and melinda elrod both testified that they purchased crack cocaine from mcdougald at the residence. shawna lattimore testified that she served 1except where otherwise noted, these facts are taken from our opinion in state v. mcdougald, 4th dist. scioto nos. 14ca3649 and 15ca3679, 2015 - ohio - 5590, appeal not accepted for review, state v. mcdougald, 144 ohio st. 3d 147, 2016 - ohio - 467, 845 n. e. 3d 245. scioto app. no. 16ca3736 3 as a “ middleman ” for mcdougald ' s drug operation and also helped him transport drugs from dayton. she testified that she also saw mcdougald carry the pistol. { ¶ 7 } the jury returned guilty verdicts on all counts. the trial court sentenced mcdougald to serve five years on the possession count, nine years for trafficking, one year for the possession of criminal tools, and five years for the possession of a firearm while under disability. the court ordered the sentences to be served consecutively for a total of twenty years imprisonment. the sentences were included in a judgment entry filed april 30, 2007, as well as a nunc pro tunc judgment entry filed may 16, 2007. { ¶ 8 } in mcdougald ' s direct appeal, where he was represented by different counsel than his trial attorney, we affirmed his convictions and sentence. state v. mcdougald, 4th dist. scioto no. 07ca3157, 2008 - ohio - 1398. we rejected mcdougald ' s contention that because the only evidence to link him to the crimes was “ the testimony of admitted drug addicts and felons, ” the verdicts were against the manifest weight of the evidence : * * * appellant ' s trial counsel skillfully cross - examined the prosecution ' s witnesses as to their statuses as drug addicts and convicted felons. counsel also drew attention to the fact that some of the witnesses may actually benefit from the testimony that they gave. that evidence notwithstanding, the jury obviously chose to believe the prosecution ' s version of the events. because the jury was in a better position to view those witnesses and determine witness credibility, we will not second - guess them on these issues. id. at ¶ 8, 10. { ¶ 9 } in january 2009, mcdougald filed his first petition for postconviction relief. he claimed that he was denied his sixth amendment right to confrontation when the trial court admitted a drug laboratory analysis report into evidence over his objection. scioto app. no. 16ca3736 4 the trial court denied the petition, and we affirmed the trial court ' s judgment. state v. mcdougald, 4th dist. scioto no. 09ca3278, 2009 - ohio - 4417. { ¶ 10 } in october 2009, mcdougald filed his second petition for postconviction relief. he again claimed that he was denied his sixth amendment right of confrontation when the trial court admitted the drug laboratory analysis report. the trial court denied the petition, and mcdougald did not appeal the judgment. { ¶ 11 } in july 2014, mcdougald filed his third petition for postconviction relief. he claimed that : ( 1 ) the trial court lacked jurisdiction to convict and sentence him because the original complaint filed in the portsmouth municipal court was based on false statements sworn to by the officers ; ( 2 ) the prosecuting attorney knowingly used and relied on false and perjured testimony in procuring the convictions against him ; and ( 3 ) the state denied him his right to due process by withholding exculpatory evidence, i. e., a drug task force report. mcdougald attached the report, the municipal court complaints, a portion of the trial transcript testimony of kendra white, his request for discovery, and the state ' s answer to his request for discovery to his petition. the trial court denied the petition because it was untimely and did not fall within an exception justifying its late filing. mcdougald appealed from the trial court ' s judgment denying his third petition for postconviction relief. { ¶ 12 } in december 2014, mcdougald filed his fourth petition for postconviction relief. he claimed that his sentence is void because the trial court never properly entered a final order in his criminal case. the trial court denied the petition. mcdougald appealed from the trial court ' s judgment denying his fourth petition for postconviction relief. scioto app. no. 16ca3736 5 { ¶ 13 } we consolidated the appeals and affirmed the judgments of the trial court denying his third and fourth petitions for postconviction relief. mcdougald, 2015 - ohio - 5590. we held that mcdougald failed to establish the requirements necessary for the trial court to address the merits of his untimely claims and that res judicata barred the claims because he either raised them on direct appeal or could have raised them on direct appeal or in one of his previous petitions for postconviction relief. id. { ¶ 14 } in november 2015, over eight and one - half years after he was sentenced, mcdougald filed his fifth petition for postconviction relief. he argued that his trial counsel had provided ineffective assistance by failing to conduct an independent investigation of various matters, failing to use preliminary hearing testimony of the arresting officer to impeach the state ’ s case, failing to emphasize kendra white ’	[ Cite as State v. McDougald, 2016 - Ohio - 5080.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : Case No. 16CA3736 Plaintiff - Appellee, : v. : DECISION AND JUDGMENT ENTRY JERONE MCDOUGALD, : RELEASED: 7 / 15 / 2016 Defendant - Appellant. : APPEARANCES: Jerone McDougald, Lucasville, OH, pro se appellant. Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, OH, for appellee. Harsha, J. {¶ 1} Jerone McDougald appeals the judgment denying his fifth petition for postconviction re?iDf and his motion for leave to file a motion for new trial. McDougald contends that the court erred in denying his petition, which raised claims of ineffective assistance of his trial counsel. He additionally argues that the court erred in denying his motion for leave to file a motion for new trial, but did not assign any errors regarding this decision. {¶ 2} We reject McDougald ’ s claims. He failed to demonstrate the requirements necessary for the trial court to address the merits of his untimely claims in his fifth petition for postconviction relief. Moreover, res judicata barred this successive petition because he could have raised these claims on direct appeal or in one of his earlier postconviction petitions. FjnallG, because he failed to assign any error regarding the trial court ’ s denial of his motion for leave to file a motion for new trial, we geeC not address his arguments regarding that decision. Scioto App. No. 16CA3736 2 {¶ 3} Therefore, we affirm the judgment of the trial court denying his petition and motion. I. FACTS1 {¶ 4} Authorities searched a premises in Portsmouth and found crack cocaine, money, digital scales, and a pistol. They arrested the two occupants of the residence, McDougald and Kendra White, at the scene. Subsequently, the Scioto County Grand Jury returned an indictment charging McDougald with drug possession, drug trafficking, possession of criminal tools, and the possession of a firearm while under disability. McDougald pleaded not guilty to all charges. {¶ 5} At the jury trial Kendra White testified that McDougald used her home to sell crack cocaine and that she sold drugs on his behalf as well. She also testified that the digital scales belonged to McDougald and, although the pistol belonged to her ex - boyfriend, Benny Simpson (who was thDh incarcerated ), McDougald asked her to bring it inside the home so that he would feel more secure. White explained that Simpson previously used the pistol to shoot at her, but threw it somewhere in the backyard when he left. Simpson then allegedly called White from jail and instructed her to retrJev$ the pistol. White complied and then hid it “ under the tool shed ” until McDougald instructed her to retrieve it and bring it inside the house. White confirmed that she saw McDougald at the premises with the gun on his person. {¶ 6} Jesse Dixon and Melinda Elrod both testified that they purchased crack cocaine from McDougald at the residence. Shawmx Lattimore testified that she served 1Except where otherwise noted, these facts are taken from our opinion in State v. McDougald, 4th Dist. Scioto Nos. 14CA3649 and 15CA3679, 2015 - Ohio - 5590, appeal not accepted for review, State v. McDougald, 144 Ohio St. 3d 147, 2016 - Ohio - 467, 845 N. E. 3d 245. Scioto App. No. 16CA3736 3 as a “ middleman ” for McDougald ' s drug operation and also helped him transport drugs from Dayton. She testified that she also saw McDougald carry the pistol. {¶ 7} The jury returned guilty verdicts on all counts. The trial court sentenced McDougald to serve five years on the possession count, nine years for trafficking, one year for the possession of criminal tools, and five years for the possession of a firearm while under disability. The court ordered the sentences to be served consecutively for a total of twenty years imprisonment. The sentences were included in a judgment entry filed April 30, 2007, as well as a nunc pro tunc judgment entry filed May 16, 2007. {¶ 8} In McDougald ' s direct appeal, where he was represented by different counsel than his trial attorney, we affirmed his convictions and sentence. State v. McDougald, 4th Dist. Scioto No. 07CA3157, 2008 - Ohio - 1398. We rejected McDougald ' s contention that because the only evidence to link him to the crimes was “ the testimony of admitted drug addicts and felons, ” the verdicts were against the manifest weight of the evidence: * * * appellant ' s trial counsel skillfully cross - examined the prosecution ' s witnesses as to their statuses as drug addicts and convicted felons. Counsel also drew attention to the fact that some of the witnesses may actually benefit from the testimony that they gave. That evidence notwithstanding, the jury obviously chose to believe the prosecution ' s version of the events. Because the jury was in a better position to view those witnesses and determine witness credibility, we will not second - guess them on these issues. Id. at ¶ 8, 10. {¶ 9} In January 2009, McDoJgSld filed his virat petition for postconviction relief. He claimed 5haR he was denied his Sixth Amendment right to confrontation when the trial court admitted a drug laboratory analysis report into evidence over his objection. Scioto App. No. 16CA3736 4 The trial court denied the petition, and we affirmed the trial court ' s judgment. State v. McDougald, 4th Dist. Scioto No. 09CA3278, 2009 - Ohio - 4417. {¶ 10} In October 2009, McDougald filed his second petition for postconviction relief. He again claimed that he was denied his Sixth Amendment right of confrontation when the trial court admitted the drug laboratory analysis report. The trial court denied the petition, and McDougald did not appeal the judgment. {¶ 11} In July 2014, McDougald filed his third petition for postconviction relief. He claimed that: (1) the trial court laD<ed jurisdiction to convict and sentence him because the original complaint filed in the Portsmouth Municipal Court was based on false statements sworn to by the officers; (2) the prosecuting attorney knowingly used and relied on false and perjured testimony in procuring the convictions against him; and (3) the state denied him his right to due process by withholding exculpatory evidence, i. e. , a drug task force report. McDougald attached the report, the municipal court complaints, a portion of the trial transcript testimony of Kendra White, his request for discovery, and the state ' s answer to his request for discovery to his petition. The trial court denied the petition because it was untimely and did not fall within an exception justifying its late filing. McDougald appealed from the trial court ' s judgment denying his third petition for postconviction relief. {¶ 12} In December 2014, McDougald filed his fourth petition for postconviction relief. He claimed that his sentence is void because the trial court never properly entered a final order in his criminal case. The trial court denied the petition. McDougald appealed from the trial court ' s judgment denying his fourth petition for postconviction relief. Scioto App. No. 16CA3736 5 {¶ 13} We consolidated the appeals and affirmed the judgments of the trial court denying his third and fourth petitions for postconviction relief. McDougald, 2015 - Ohio - 5590. We held that McDougald failed to establish the requirements necessary for the trial court to address the merits of his untimely claims and that res judicata barred the claims because he either raised them on direct appeal or could have raised them on direct appeal or in one of his previous petitions for postconviction relief. Id. {¶ 14} In November 2015, over eight and one - half years after he was sentenced, McDougald filed his fifth petition for postconviction relief. He argued that his trial counsel had provided ineffective assistance by failing to conduct an independent investigation of various matters, failing to use preliminary hearing testimony of the arresting officer to impeach the state ’ s case, failing to emphasize Kendra White ’	[Cite as v. McDougald, 2016-Ohio-5080.] IN THE COURT OF APPEALS OF OHIO DISTRICT SCIOTO STATE OF OHIO, : Case 16CA3736 Plaintiff-Appellee, : v. : DECISION JUDGMENT ENTRY JERONE MCDOUGALD, RELEASED: 7/15/2016 Defendant-Appellant. : Jerone McDougald, Lucasville, pro se appellant. Mark Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, OH, for appellee. Harsha, J. {¶1} Jerone McDougald appeals the judgment denying his fifth petition for postconviction relief and his motion for leave to for new trial. McDougald contends that the court erred in his petition, which raised claims of ineffective assistance of his trial counsel. He additionally argues that the court denying motion for leave to file motion for new trial, did not assign any errors regarding decision. {¶2} We reject McDougald’s claims. He failed to demonstrate the requirements necessary for trial to address the merits of his untimely claims in his fifth petition for postconviction relief. Moreover, res judicata barred this successive petition he have raised these claims on direct appeal or in one of his earlier postconviction petitions. Finally, because he failed to any error regarding the court’s denial of his motion for leave to file a motion for new trial, we need not address his arguments regarding that decision. Scioto App. No. 16CA3736 2 {¶3} affirm the judgment of trial denying his petition and motion. I. FACTS1 {¶4} Authorities searched a premises in Portsmouth and found crack money, digital scales, and a pistol. They arrested the two occupants of the residence, McDougald and Kendra White, at the scene. Subsequently, the Scioto County Grand Jury returned an indictment charging McDougald possession, drug possession of criminal tools, and the possession of a firearm while under disability. McDougald pleaded to all charges. {¶5} At the jury trial Kendra White that McDougald used her home to sell crack cocaine and that she sold drugs on his behalf as well. She also testified that the digital scales belonged to McDougald and, although the pistol belonged to her Benny Simpson (who was incarcerated), McDougald her bring it inside the home so that he would feel more secure. White explained that Simpson previously used the pistol to shoot at but threw it somewhere in the when he left. Simpson then allegedly called White from jail and instructed her to retrieve the White complied then hid it “under tool shed” until McDougald instructed her to it and bring it inside house. confirmed that she McDougald premises with the gun his person. Jesse Dixon and Melinda Elrod both testified that they purchased crack cocaine from at Shawna Lattimore testified that she served 1Except where otherwise noted, these are taken from our opinion in State v. McDougald, Dist. Scioto Nos. and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, State v. McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d 245. Scioto App. No. 16CA3736 3 as a “middleman” for McDougald's drug and also helped transport drugs from Dayton. She testified that she also saw McDougald carry the jury returned guilty verdicts on all counts. The trial court sentenced McDougald to serve five years on the possession count, nine years for trafficking, year the possession of criminal tools, and five years for of a firearm while under disability. The court ordered the sentences to be served consecutively for a total of years imprisonment. The were included in a judgment entry filed April 30, as well as a nunc pro tunc judgment filed May 16, 2007. {¶8} In McDougald's direct appeal, where he was represented by different than his trial attorney, we affirmed his convictions and sentence. State v. McDougald, 4th Dist. Scioto No. 07CA3157, 2008-Ohio-1398. We rejected McDougald's contention that because the only evidence to link him to the was “the testimony of admitted drug addicts and felons,” the verdicts were against the manifest of the evidence: * * * appellant's trial counsel skillfully cross-examined the prosecution's witnesses as to their statuses as drug addicts and convicted felons. Counsel also drew attention to the fact that some of the witnesses may actually benefit from the testimony that they gave. That notwithstanding, the jury obviously chose to the prosecution's of the events. Because the jury was in a better position to view those witnesses determine witness credibility, we will not second- guess them on issues. Id. ¶ 8, 10. {¶9} In January 2009, McDougald filed his first petition for postconviction relief. He claimed that he was denied his Sixth Amendment right to confrontation the trial court admitted a drug laboratory analysis into evidence over his objection. App. 16CA3736 4 The trial court denied the petition, and we affirmed the trial court's judgment. State v. McDougald, 4th Dist. Scioto No. 2009-Ohio-4417. {¶10} In October 2009, filed his second for postconviction relief. He again claimed that he denied his right of confrontation when the trial court the laboratory analysis report. The trial court denied the petition, and McDougald did not appeal the judgment. In July 2014, McDougald filed his third petition for postconviction He claimed that: (1) the trial lacked jurisdiction to convict and sentence him because original complaint filed in the Portsmouth Court based on false sworn to by officers; (2) the prosecuting attorney knowingly used and relied on false and testimony in procuring the convictions him; and (3) state denied him his right to due by withholding exculpatory evidence, i.e., a task force report. McDougald attached the report, the municipal court complaints, a portion of the transcript testimony of Kendra White, his request for and answer to his for discovery to his petition. The trial court denied the petition because it was untimely and did not fall within an exception justifying its late filing. McDougald appealed from the trial court's judgment denying his third petition for postconviction relief. {¶12} In December 2014, McDougald filed his fourth petition for postconviction He claimed that his sentence is void because the trial court never properly entered a final order in his criminal case. The trial court denied the petition. McDougald appealed from the trial court's judgment denying his fourth petition postconviction relief. Scioto App. No. 5 {¶13} We consolidated the appeals and affirmed the judgments the trial court denying his third and fourth for postconviction relief. McDougald, 2015-Ohio- We held that McDougald failed to establish the requirements necessary for the trial court to address the merits of untimely claims and that res judicata barred the claims because he either raised them on direct or could have raised them on direct appeal or in one of previous petitions postconviction relief. Id. November 2015, over eight and one-half years after he was sentenced, McDougald filed his fifth petition for postconviction relief. He argued that his trial counsel had provided ineffective assistance by failing to conduct an independent investigation of various matters, failing to use preliminary hearing testimony the arresting officer to impeach the state’s case, failing to emphasize Kendra White’	[CItE AS sTATE V. MCdoUGalD, 2016-ohIo-5080.] IN The CouRt Of APPeAlS Of oHio fOurtH AppELlATE disTricT sCIoTo coUnTy STAtE Of oHiO, : CASE NO. 16CA3736 plAIntIFf-AppELLee, : v. : DecIsION And JUDGmeNt EnTrY jeRonE MCdoUGaLD, : reLeasEd: 7/15/2016 DeFEndANT-ApPElLANt. : APpEaRANceS: jeRONe MCdoUGALD, lUcASvILLe, oH, PRo sE aPpELLANt. MaRk e. kuHn, scIoto COUnTy PrOSecutInG aTtorNEy, ANd JaY S. wILLis, SCIotO COuNTy AssIstant PROseCutInG ATtORNey, POrTsmOutH, OH, foR AppeLLee. Harsha, J. {¶1} jERone McDoUgALD APpEALS tHe juDgMenT dEnYINg HIS FifTh petiTIon for POstcoNvICTIon RElief anD His MOTiON FOR lEaVE tO FILE A MotIon fOR NEw trial. MCDouGALD cONtEnDs that THE couRt ERREd In DENyiNg HiS pEtitIon, WHICH rAiSEd cLaimS of inEFfeCTiVE aSSIStanCe oF HIs tRIal counsEl. he additioNAlLY ARGuES thAT The COuRt ERrED IN DenYINg hiS MoTION foR LEaVE To FILe a mOtION FOR nEw TriaL, BuT dId noT aSsIGn ANY errorS RegarDiNG ThIS dECisIon. {¶2} we REJECT MCdoUGaLD’s ClAiMs. He Failed TO DeMonstraTe the reqUiremenTS NeceSsARy fOR ThE tRIaL coUrt to adDreSs ThE merIts of hIs uNtIMeLy clAiMs iN hIS fIFTh pETiTION FoR pOstCOnVicTIOn rELIEf. MorEOVer, REs JuDicAtA Barred ThIs sUCCESSIVe peTiTION beCaUSe HE COuLD HaVe RAISEd THesE claiMS oN diRECt aPpeAL or iN ONe Of HIS EARLIEr PoSTcOnViCtion peTiTIons. fInaLLy, BEcauSe HE failED to AssIgn Any erRoR reGarDinG the tRIal cOURT’s deNIAl Of his motIoN foR leAvE to FILE A MotIon foR nEw triAL, we NEED noT aDDREsS HIS arGUmEnTs reGaRdinG thAt deCiSion. SciOtO apP. no. 16ca3736 2 {¶3} THErEForE, We AFFIrm tHE JudGMenT of The tRIaL CourT DENYInG his peTITIon aNd MOTion. i. FacTs1 {¶4} aUtHOritiES SeaRCheD A prEMISeS IN PoRTSMouth ANd FoUnD CRAck COCainE, mONey, DiGiTaL SCALes, AnD A pistoL. They arrESted ThE tWO OcCupanTs oF THE resIDenCe, mcdoUgALD anD KendrA whiTE, at The scENE. suBSEQUENTLy, THE scIOTO coUntY GRand JURy RetuRNED An iNdictmENT chargiNG MCdoUGALD WIth dRUG PosSEssiOn, DRUG TRaFficKIng, POSsEssIOn Of cRIMiNal TOoLs, and the posSeSSION Of a fiREARm wHIlE UNDer DIsAbILiTy. mcDOugALD PleADeD Not GUiLTy To all cHARGes. {¶5} aT tHE jURY TRiAL keNDRa WHItE teStIFIED THaT mCdoUgalD uSeD HeR HOme To selL craCk COcaiNe aND tHAT SHe Sold drUgs On hIS BEHalf As weLl. SHe aLsO TestIFieD THAt THe Digital SCalES beLONGed TO McdOugALD and, aLtHoUgh tHe pistOL BelONGed TO HER ex- BOYfrIEnD, benNY SImpSoN (Who was TheN iNCArCeRatEd), mcdoUGALD aSKEd hEr TO brINg it InSidE tHe HomE sO THAt HE wOuld fEel moRe sEcURE. whitE eXpLAiNED ThaT Simpson PREvIOUslY uSed The pIStoL TO shOot aT HEr, bUt ThReW It soMeWHeRE in tHE baCkYARd wheN hE LEfT. SIMpSoN Then aLLegeDLy CAlleD White from jAil aNd inStructed her tO rETRiEvE THe PIsToL. WHITE CoMPLIed ANd THen hId iT “unDer THe TOOL sHed” unTIL McdougAlD inStRUCTed hEr to rETRiEVE It And BRInG It inSidE THE hOUsE. WhITe COnFiRMEd THAt she saw mCdoUGAlD AT THe PRemISeS WiTh thE gUn oN His perSoN. {¶6} jeSse dIXoN anD MELINdA elRoD boTh TEStifIEd tHat theY pUrChAsed cRack cOCAinE frOM McDoUGALd at THe rEsidENCe. sHawNA LATtiMORE TestiFIED ThAt sHE ServED 1exCePT WHerE OTHERwiSe NOtED, thesE fAcTs ARE tAkEN from oUR opinioN In stATe v. McDougALD, 4Th DIst. sCIoto Nos. 14Ca3649 and 15Ca3679, 2015-OHIO-5590, appEaL not ACCeptED FOr ReVIEw, sTAtE v. mcDOUGAld, 144 ohIo st.3d 147, 2016-oHIo-467, 845 n.e.3d 245. ScIOTO APp. nO. 16ca3736 3 aS a “MiDdleMAn” for mcDOUGALD'S drUG OPERATION aND ALso HELpeD him TrAnsport drUgS fRoM dAyToN. She teStIfiEd tHaT SHE ALSo SaW mCDougAlD caRRy tHE pIStOl. {¶7} ThE JurY RETURnED GUILTY veRDiCTS oN all countS. thE TrIAL CoURt seNtencED MCdOugALd tO serve FIVE yeARS oN tHe POsSESSiOn count, Nine yEARs for tRAFFIcKInG, ONe YEar fOr tHE POSsesSion of CRIMiNAl tOols, aND fiVe yEArs fOR thE PoSSEssIoN OF a fIrEArM WhilE Under dIsAbIliTY. the CoUrt ORDerED THe senteNces to BE sERvED cOnSECUTivElY FoR a TOtaL Of tWENty YEaRs ImPrISoNMeNT. tHe sENtenCEs WEre iNcLuded IN A judgmeNT EnTrY FileD aPRiL 30, 2007, As WELl AS A nUnc pro TUnC JUdGMENT enTry fILEd may 16, 2007. {¶8} in mcDOUgaLD'S DirecT aPPEAl, WhErE hE WAS RePresENted By diFFerENT cOUNSeL thAN hIs TriAL ATtornEY, wE afFirmed hiS COnViCTiONS AND sentEncE. state V. mcDOUGaLD, 4th DisT. sCiOto nO. 07CA3157, 2008-ohiO-1398. WE rEjEctEd MCdOugalD's cONtenTion ThAt BECAUSE tHE ONLY evidENCE tO LinK HIM tO THE CrImES was “tHE teSTimOny OF AdmittEd DrUg AddICTS AND feloNS,” The vErdICtS WERE AGaiNST THe mAniFest weIgHT OF thE EViDeNcE: * * * ApPEllAnT'S tRiAL counsEL sKillfullY cRoss-eXaMinED tHe pROsecUtiOn's wItnessEs AS TO TheiR StAtUSes aS DRUg aDdictS anD coNviCTEd felOnS. coUnsEl alSo drEw AttENTIOn TO thE FAcT THat sOME oF ThE wItNesSEs may ACTUaLlY beNeFIT FRoM tHe TEStImOnY ThAt ThEY Gave. ThAT evidEnce NOTwiTHsTaNdiNG, the JURy oBViOUSLY chosE TO BELievE THe prOSEcutiON's VersIoN of thE EventS. BECAUse tHe jurY WAs in A BETTEr PosITion To ViEW ThOSE WiTnESsES anD DeTermINE WItnEss CREdIbILiTy, wE WiLL noT sECOND- Guess THEm On tHesE iSSuEs. ID. AT ¶ 8, 10. {¶9} iN JanUaRy 2009, mCDOUgAlD filed HiS FIRST PETitIOn FOR PosTCONvIction RElIEF. he ClaImED ThaT hE WaS DenieD hiS SIXth AmENdment RIGht tO ConfRonTatIoN whEn THe TRiaL CourT AdMiTtEd A drUg laBoraToRy ANalySis repORT INtO evideNcE OveR His oBJEcTiON. scIOTo App. No. 16cA3736 4 The TrIAl cOurt dENiED the PetITioN, AND We AfFIRMed The tRIaL cOurt'S jUDgMEnT. staTe V. McDOugAld, 4tH dIst. SCIotO No. 09ca3278, 2009-ohio-4417. {¶10} In ocToBeR 2009, mCDoUGalD fILeD HiS SecOND PETItIon For POSTcoNVIctiON reLiEF. he aGAIn CLAImEd THat hE wAS dENiED his SiXtH aMENDmeNt rigHT OF COnfRONTATiON wHeN tHe TRiaL cOURt ADMITTEd ThE druG LAbORatORY aNalYsiS REpoRt. tHe tRIal COuRt denIeD The PetITiON, aND mcDouGalD DID NOt aPpEal The JUdGMeNt. {¶11} In julY 2014, mcDOUgALd FiLed HiS tHirD pEtItiON FOr POsTCOnvictiON relIef. He CLaIMeD THat: (1) thE TRiAL COURT LACKeD JUrIsDiCtiON to COnViCT AND seNtEnce hiM Because THE OrIgInaL cOmplAInt FILeD iN tHe poRtSmOutH MUNICipaL cOUrT Was baSed ON FaLSE StAtemEnts sworN to by ThE oFficERs; (2) The proSecuTIng attoRnEy KNoWiNgly uSED And RELiEd oN faLSe anD PeRjuRED TestimonY iN pRocuRiNG THe COnvICTioNs aGAiNst hIm; and (3) ThE sTATe DenieD HIM HIS right tO dUE proceSs BY WIthHOLDIng ExcULPATORy EviDEnce, i.e., a DRUg TASk FORcE RePoRT. mCDoUGAlD AttAcheD THe RepORT, the MuniCipAl coUrt COMplainTs, a POrtIon OF tHe triaL TraNScriPt TestIMony oF KeNDrA whIte, hIS rEquEst FoR diSCovery, aND THE sTate's anSweR To HiS rEquEST For DiSCoVeRy to HIS peTItioN. thE triAl cOURT DeNieD tHe PetITioN bEcAusE It waS UNTImeLy and Did NoT fALL WITHiN An ExcEPtION jUstIFyiNG its LAte fILInG. mCdouGAlD aPPeAleD FrOM THe TRIAL cOURT's judgMeNT DEnYinG hIS THirD pETition for POStCONvicTIon relief. {¶12} in decEMBeR 2014, mcDoUGAlD fiLeD HIS fOUrth pETiTIOn foR poStConViCTIoN ReLIeF. hE clAimEd tHaT hiS SeNteNce is VOId bEcAUse tHE TRiAl cOuRT Never prOpERLY entEREd a FINAl ordeR In HIS cRiMInAL cAsE. ThE TRiAL cOUrt DeNIed the pEtitiOn. mCDoUGald appEAled frOM ThE TriaL Court's JUdgMENT DEnyInG hIs fourtH pEtitiOn FOR pOSTcOnvIctIon RElIef. SCIoTO ApP. No. 16Ca3736 5 {¶13} we COnsolIdateD THe APpEAls AND aFFIrMed tHe judgmeNtS oF ThE TRIAL COuRt dEnYInG His tHiRd AND fOurth pETItionS for pOsTCONvIcTiON relIEf. MCdoUgalD, 2015-oHIO- 5590. wE HeLD tHAt mCDougAld FailED tO EsTAbliSh THe requiRemEntS necEssaRY fOr The trIAL CouRT To AddrEsS THE MerITS oF hIs UNtiMELY clAims aND thaT reS judIcatA BaRREd thE cLAimS beCAUSe he eitheR rAiSed tHEM on dirECT ApPeAL Or couLd HavE raISEd THem ON dIreCT aPPEal OR in ONE OF HiS PrEvIouS petitiOnS For PostCOnVIction RELief. iD. {¶14} in NoveMBer 2015, OveR EIGht And One-HAlf YEaRs afTER he was sEnteNcED, McdOUgAld FiLed hIS fifTh peTiTIOn foR POStcoNVIction relief. he ArgUed THAT hIS TRIAl couNsel had pRovideD inEffectiVe ASsisTANCe BY FAILiNg TO cOnDuCT An iNDePEnDeNt INVesTiGaTioN Of VARious MAtTErS, fAIlIng to uSe PRELiMInARy HearING TEStImony of thE arResTiNG OfFICER To imPEACH tHE StATe’s Case, fAIlinG TO empHaSizE KendRa whItE’	[Cite as State v. McDougald, 2016-Ohio-5080.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, :Case No. 16CA3736 Plaintiff-Appellee, : v. : DECISIONAND JUDGMENT ENTRY JERONE MCDOUGALD, : RELEASED: 7/15/2016 Defendant-Appellant. : APPEARANCES: Jerone McDougald, Lucasville, OH, pro se appellant. Mark E. Kuhn, Scioto County Prosecuting Attorney,and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, OH, for appellee. Harsha, J. {¶1}Jerone McDougald appeals the judgment denying his fifth petition for postconviction relief and his motion for leave to file a motion fornewtrial. McDougald contends that the court erred indenying his petition, which raised claims ofineffective assistance of histrial counsel. Headditionallyarguesthat the court erred in denying his motionfor leave to file amotion for new trial, but did not assign any errors regarding this decision. {¶2} We reject McDougald’s claims. Hefailed todemonstrate the requirementsnecessary for the trial court to address the merits of his untimely claims in hisfifth petition for postconviction relief. Moreover, res judicata barredthis successive petition because he could have raised these claims on direct appeal or in one of hisearlier postconviction petitions.Finally,because he failed toassign any error regarding the trial court’s denial of hismotion forleave to file a motion for new trial, we need not address his arguments regarding that decision. SciotoApp. No. 16CA3736 2 {¶3} Therefore, we affirm the judgmentof the trialcourt denying his petitionand motion. I. FACTS1 {¶4} Authorities searched a premises inPortsmouth and found crackcocaine,money, digital scales, and a pistol. They arrested the two occupants of the residence, McDougald and Kendra White, at the scene. Subsequently, the SciotoCounty Grand Jury returned an indictment charging McDougald withdrug possession, drug trafficking, possession of criminal tools, and the possessionof a firearm while under disability. McDougaldpleaded not guilty to allcharges. {¶5} At the jury trial Kendra Whitetestified that McDougald used her home to sell crackcocaine and that she sold drugsonhis behalf as well. She also testified that the digital scales belonged to McDougald and, although the pistol belonged to herex- boyfriend, Benny Simpson (who was then incarcerated), McDougald asked her to bring it inside the home so that he would feel more secure. White explained that Simpson previously used the pistol to shoot at her, but threw it somewhere in the backyard when heleft. Simpsonthen allegedly called White from jail and instructed herto retrieve the pistol. White complied and then hid it“under the tool shed” untilMcDougaldinstructed her toretrieve itand bring it inside thehouse. Whiteconfirmed that she saw McDougald at the premises with the gun on his person. {¶6} Jesse Dixon and Melinda Elrod both testified that they purchasedcrack cocaine from McDougald at the residence. Shawna Lattimore testified that she served 1Except where otherwise noted, these facts are takenfrom our opinion in State v. McDougald, 4th Dist. SciotoNos. 14CA3649 and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, State v. McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d 245. Scioto App. No. 16CA37363 as a “middleman” for McDougald's drug operationand alsohelped him transport drugs from Dayton. She testified that shealso saw McDougaldcarry the pistol. {¶7} The jury returned guilty verdicts on all counts. The trial court sentenced McDougald toserve five years on the possession count, nine yearsfor trafficking, oneyear for the possession of criminal tools, and five years forthe possession of a firearm whileunder disability.The court orderedthe sentences tobe served consecutively for a total of twenty years imprisonment.The sentences were included in a judgment entry filed April 30, 2007, aswell as a nunc pro tunc judgment entry filed May 16, 2007. {¶8} In McDougald's direct appeal, where he was represented by different counsel than his trial attorney,we affirmed his convictions and sentence.Statev. McDougald, 4th Dist.Scioto No.07CA3157,2008-Ohio-1398. We rejected McDougald's contention that because the only evidence to link him to thecrimes was “the testimony of admitted drug addicts and felons,” the verdicts were against the manifest weight of the evidence: * * * appellant's trial counsel skillfully cross-examined the prosecution's witnesses as totheir statusesas drug addicts and convicted felons. Counsel also drew attention to thefact that some of the witnesses may actually benefit from the testimony that they gave. That evidencenotwithstanding,the jury obviously chose to believe the prosecution's version of theevents. Because the jury was ina better position to view those witnesses and determine witness credibility, wewill not second- guessthem onthese issues. Id. at ¶ 8, 10. {¶9} In January 2009, McDougald filed his first petition for postconvictionrelief. He claimed that he was deniedhis Sixth Amendment rightto confrontation when the trial court admitteda drug laboratory analysis report into evidence over his objection. Scioto App. No. 16CA3736 4 The trial court denied the petition, and we affirmed the trial court's judgment. State v. McDougald, 4th Dist. Scioto No. 09CA3278,2009-Ohio-4417. {¶10}In October 2009, McDougald filed his second petition for postconviction relief. He again claimedthathe was denied his Sixth Amendment right of confrontation when the trial court admitted the drug laboratory analysis report. The trial court denied the petition, and McDougald did not appeal the judgment. {¶11} In July 2014, McDougald filed his third petitionfor postconviction relief. He claimed that: (1) the trial court lacked jurisdiction to convict and sentencehim because the original complaint filed in the Portsmouth MunicipalCourt was based on false statements sworn to by theofficers; (2) the prosecuting attorney knowingly used and reliedon false andperjured testimony inprocuring the convictions against him; and (3) the state denied him his right to due process by withholding exculpatoryevidence, i.e., a drug task forcereport. McDougald attached the report, the municipal courtcomplaints, a portion ofthe trial transcript testimony of Kendra White, his request fordiscovery, and the state's answerto his request for discovery to his petition. The trial court denied the petitionbecause itwas untimely anddidnot fall within an exceptionjustifyingits late filing. McDougaldappealed from the trial court's judgmentdenying his third petition for postconviction relief. {¶12} In December 2014, McDougaldfiled his fourth petition for postconviction relief. He claimed that his sentenceis void because the trial court neverproperly entered a finalorder in his criminal case. The trial court denied the petition. McDougald appealed from the trial court'sjudgment denying his fourth petition forpostconviction relief.Scioto App. No.16CA3736 5 {¶13} We consolidatedthe appeals and affirmed thejudgments ofthe trial court denying histhird and fourth petitions for postconviction relief. McDougald, 2015-Ohio- 5590. We held that McDougald failed toestablish the requirements necessary forthe trial court to address the merits of his untimely claims and that res judicata barred the claims because he eitherraised them on direct appeal or could have raised them on direct appeal or in one of his previous petitions for postconvictionrelief. Id. {¶14} In November 2015, over eightand one-half years after he was sentenced, McDougald filed his fifth petition for postconvictionrelief. He argued that his trial counsel had provided ineffective assistance by failing to conduct an independent investigationof variousmatters,failing to use preliminary hearing testimony of the arresting officer to impeach the state’s case, failing to emphasize Kendra White’	_[Cite_ as State v. McDougald, 2016-Ohio-5080.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF _OHIO,_ : Case No. 16CA3736 Plaintiff-Appellee, : v. _:_ _DECISION_ AND JUDGMENT ENTRY _JERONE_ _MCDOUGALD,_ : RELEASED: _7/15/2016_ _Defendant-Appellant._ _:_ APPEARANCES: _Jerone_ McDougald, Lucasville, OH, pro se appellant. Mark E. Kuhn, _Scioto_ County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant _Prosecuting_ Attorney, Portsmouth, OH, for _appellee._ Harsha, J. {¶1} Jerone McDougald appeals the judgment denying _his_ fifth petition for _postconviction_ relief and his motion for _leave_ to _file_ _a_ motion for _new_ _trial._ McDougald _contends_ that _the_ court erred _in_ denying his petition, _which_ raised claims of ineffective assistance of _his_ trial counsel. He additionally argues that the court _erred_ in denying _his_ _motion_ for _leave_ to file _a_ motion for new trial, _but_ did not _assign_ any _errors_ regarding this decision. _{¶2}_ We reject McDougald’s claims. He failed to demonstrate the _requirements_ necessary for the trial _court_ to address the merits _of_ his untimely claims in his _fifth_ _petition_ for _postconviction_ relief. Moreover, _res_ judicata _barred_ this successive petition because he could have raised _these_ claims _on_ direct appeal or in one of his earlier postconviction petitions. Finally, because he failed to assign any error regarding the trial _court’s_ denial of his _motion_ for leave to file a motion for _new_ _trial,_ _we_ _need_ not _address_ his arguments regarding that decision. Scioto App. No. 16CA3736 2 {¶3} Therefore, we affirm the judgment of the trial court denying his _petition_ and motion. I. FACTS1 {¶4} _Authorities_ searched a premises in _Portsmouth_ and found _crack_ _cocaine,_ money, digital scales, and _a_ pistol. They arrested the two _occupants_ of the residence, McDougald and Kendra White, at the scene. Subsequently, the Scioto _County_ Grand Jury returned an indictment charging McDougald with drug possession, _drug_ trafficking, _possession_ of _criminal_ tools, and the possession of _a_ firearm while _under_ disability. McDougald _pleaded_ not _guilty_ to all _charges._ {¶5} At the jury _trial_ Kendra _White_ _testified_ _that_ McDougald _used_ her home to _sell_ crack cocaine and _that_ she sold drugs _on_ his behalf as well. She also testified _that_ the digital scales belonged to McDougald and, although _the_ pistol belonged _to_ _her_ ex- boyfriend, _Benny_ _Simpson_ (who _was_ _then_ _incarcerated),_ McDougald asked _her_ to _bring_ it inside the home so that he _would_ feel more _secure._ White explained _that_ Simpson previously used _the_ pistol to shoot at her, but threw _it_ _somewhere_ _in_ the backyard when he left. Simpson then allegedly called White from jail and instructed her to _retrieve_ the _pistol._ White complied and then _hid_ it _“under_ the tool _shed”_ until McDougald instructed _her_ _to_ retrieve it and _bring_ it _inside_ _the_ house. White confirmed that _she_ saw McDougald at the _premises_ with the gun on his _person._ {¶6} Jesse Dixon and Melinda Elrod both _testified_ _that_ they purchased crack cocaine from McDougald _at_ the residence. _Shawna_ Lattimore testified that she served 1Except where otherwise noted, these facts are _taken_ from our opinion _in_ State v. McDougald, 4th Dist. Scioto _Nos._ 14CA3649 and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, _State_ v. McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d _245._ Scioto App. _No._ 16CA3736 3 as a “middleman” for McDougald's drug _operation_ and also helped him _transport_ drugs from Dayton. She testified that she also saw McDougald carry the pistol. _{¶7}_ The jury returned guilty verdicts on all counts. The trial court sentenced McDougald to _serve_ five _years_ on the possession count, nine years for trafficking, one year for the possession of criminal _tools,_ and five years for the possession of a firearm while under disability. The _court_ ordered the sentences to _be_ served consecutively for a total of twenty years imprisonment. The sentences were included in a judgment entry filed April 30, _2007,_ as _well_ as a nunc _pro_ tunc judgment entry filed May 16, _2007._ {¶8} In McDougald's direct appeal, where he was represented by _different_ counsel than his trial attorney, we affirmed his convictions and sentence. State v. McDougald, _4th_ Dist. Scioto No. 07CA3157, 2008-Ohio-1398. We rejected _McDougald's_ contention _that_ because the only evidence to link _him_ to the _crimes_ was “the _testimony_ of admitted drug addicts and felons,” the verdicts were against the _manifest_ weight of _the_ evidence: * * * appellant's trial counsel skillfully cross-examined the _prosecution's_ witnesses as _to_ their _statuses_ as _drug_ addicts and _convicted_ felons. _Counsel_ also drew _attention_ _to_ the fact that some of the _witnesses_ _may_ _actually_ _benefit_ from _the_ testimony that they gave. That evidence notwithstanding, _the_ jury obviously chose to believe the prosecution's _version_ of the _events._ _Because_ the jury was _in_ a better position to view those witnesses and _determine_ _witness_ _credibility,_ we will not _second-_ _guess_ _them_ on these issues. _Id._ _at_ ¶ 8, 10. {¶9} In January 2009, McDougald filed his first petition for postconviction relief. He claimed that he was denied his _Sixth_ Amendment right _to_ confrontation when the trial court admitted a drug laboratory analysis _report_ into evidence over his _objection._ Scioto App. _No._ _16CA3736_ 4 The trial court denied the petition, _and_ we _affirmed_ the _trial_ court's judgment. State v. McDougald, _4th_ Dist. Scioto No. _09CA3278,_ 2009-Ohio-4417. {¶10} In _October_ 2009, McDougald filed his second petition _for_ postconviction relief. He again claimed _that_ he was denied his Sixth Amendment _right_ of confrontation _when_ the trial court admitted the drug laboratory analysis report. The trial court denied the _petition,_ and McDougald _did_ _not_ appeal the judgment. {¶11} In July 2014, McDougald filed his third petition for postconviction _relief._ He claimed _that:_ (1) the trial court lacked jurisdiction _to_ convict _and_ sentence _him_ because the _original_ complaint _filed_ in the Portsmouth _Municipal_ Court was based _on_ false statements sworn to by the officers; (2) the _prosecuting_ attorney knowingly used and relied _on_ false _and_ _perjured_ testimony in procuring the _convictions_ against him; and (3) the state denied him his right to due _process_ by withholding exculpatory evidence, i.e., a drug _task_ force report. _McDougald_ attached _the_ report, the municipal court _complaints,_ a portion of the trial _transcript_ testimony of Kendra White, _his_ request for discovery, and the state's _answer_ to his request for discovery to _his_ petition. _The_ trial court _denied_ the _petition_ _because_ it was untimely and did _not_ fall _within_ an exception justifying its _late_ filing. McDougald appealed from the _trial_ _court's_ judgment denying his third petition for postconviction relief. _{¶12}_ In December 2014, McDougald filed his fourth petition _for_ postconviction relief. He claimed that his sentence is void because _the_ trial _court_ never _properly_ entered a final _order_ in his _criminal_ _case._ The trial court denied the petition. _McDougald_ appealed from _the_ trial _court's_ judgment _denying_ his fourth petition for postconviction relief. Scioto App. No. 16CA3736 5 {¶13} We _consolidated_ the appeals and affirmed the judgments of _the_ trial court denying _his_ third _and_ fourth petitions for postconviction relief. McDougald, 2015-Ohio- _5590._ We held that McDougald failed to _establish_ _the_ _requirements_ necessary for the trial court to address _the_ merits of his untimely _claims_ _and_ _that_ _res_ judicata barred the claims because _he_ _either_ raised them on direct _appeal_ _or_ could _have_ raised them on direct appeal or _in_ one of his _previous_ petitions for postconviction relief. Id. {¶14} In November 2015, _over_ eight and one-half years _after_ he was _sentenced,_ McDougald filed his _fifth_ petition for _postconviction_ relief. _He_ argued that his trial counsel _had_ provided ineffective assistance _by_ failing to conduct an independent investigation of various matters, failing to use _preliminary_ hearing testimony of _the_ arresting _officer_ to impeach the state’s _case,_ failing _to_ emphasize Kendra White’
723 P.2d 394 (1986) L. Lynn ALLEN and Merle Allen, Plaintiffs and Respondents, v. Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants. No. 18290. Supreme Court of Utah. July 29, 1986. H. James Clegg, Scott Daniels, Salt Lake City, for defendants and appellants. Boyd M. Fullmer, Salt Lake City, for plaintiffs and respondents. HOWE, Justice: The plaintiffs Allen (buyers) brought this action for the return of all money they had paid on an earnest money agreement to purchase residential real estate. The defendants Kingdon (sellers) appeal the trial court's judgment that the agreement had been rescinded by the parties and that the buyers were entitled to a full refund. 395 On February 12, 1978, the buyers entered into an earnest money agreement to purchase the sellers' home for $87,500. The agreement provided for an immediate deposit of $1,000, which the buyers paid, to be followed by an additional down payment of $10,000 by March 15, 1978. The buyers were to pay the remainder of the purchase price at the closing which was set on or before April 15, 1978. The agreement provided for the forfeiture of all amounts paid by the buyers as liquidated and agreed damages in the event they failed to complete the purchase. The buyers did not pay the additional $10,000, but paid $9,800 because the parties later agreed on a $200 deduction for a light fixture the sellers were allowed to take from the home. An inscription on the $9,800 check stated all monies paid were "subject to closing." There were several additional exchanges between the parties after the earnest money agreement was signed. The buyers requested that the sellers fix the patio, which the sellers refused to do. The buyers asked that the sellers paint the front of the home, which Mr. Kingdon agreed to do, but did not accomplish. The parties eventually met to close the sale. The buyers insisted on a $500 deduction from the purchase price because of the sellers' failure to paint. The sellers refused to convey title unless the buyers paid the full purchase price. Because of this impasse, the parties did not close the transaction. Mrs. Allen and Mrs. Kingdon left the meeting, after which Mr. Kingdon orally agreed to refund the $10,800, paid by the buyers. However, three days later, the sellers' attorney sent a letter to the buyers advising them that the sellers would retain enough of the earnest money to cover any damages they would incur in reselling the home. The letter also stated that the buyers could avoid these damages by closing within ten days. The buyers did not offer to close the sale. The home was eventually sold for $89,100, less a commission of $5,346. Claiming damages in excess of $15,000, the sellers retained the entire $10,800 and refused to make any refund to the buyers. The trial court found that the parties had orally rescinded their agreement and ordered the sellers to return the buyers' payments, less $1,000 on a counterclaim of the sellers, which award is not challenged on this appeal. The sellers first contend that the trial court erred in holding that our statute of frauds permits oral rescission of a written executory contract for the sale of real property. U.C.A., 1953, § 25-5-1 provides: No estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing. (Emphasis added.) In Cutwright v. Union Savings & Investment Co., 33 Utah 486, 491-92, 94 P. 984, 985 (1908), this Court interpreted section 25-5-1 as follows: No doubt the transfer of any interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either be created, transferred, or surrendered by parol merely.... No doubt, if a parol agreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing has been done under it, it is within the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in real property may be. (Emphasis added.) In that case, the buyer purchased a home under an installment contract providing for the forfeiture of all amounts paid in the event the buyer defaulted. The buyer moved into the home but soon discontinued payments. He informed the seller that he would make no more payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the buyer's interest informed the seller that he intended to make the payments 396 under the contract and demanded possession. The seller refused to accept the payments, claiming that the contract had been mutually rescinded on the buyer's surrender of possession. We held that the statute of frauds generally requires the surrender of legal and equitable interests in land to be in writing. Where, however, an oral rescission has been executed, the statute of frauds may not apply. In Cutwright, surrender of possession by the buyer constituted sufficient part performance of the rescission agreement to remove it from the statute of frauds. This exception is one of several recognized by our cases. We have also upheld oral rescission of a contract for the sale of land when the seller, in reliance on the rescission, enters into a new contract to resell the land. Budge v. Barron, 51 Utah 234, 244-45, 169 P. 745, 748 (1917). In addition, an oral rescission by the buyer may be enforceable where the seller has breached the written contract. Thackeray v. Knight, 57 Utah 21, 27-28, 192 P. 263, 266 (1920). In the present case, the oral rescission involved the surrender of the buyers' equitable interest in the home under the earnest money agreement. Further, the rescission was wholly executory. There is no evidence of any part performance of the rescission or that the buyers substantially changed their position in reliance on the promise to discharge the contract. On the contrary, three days after the attempted closing, the sellers informed the buyers that they intended to hold them to the contract. It was only after the buyers continued in their refusal to close that the sellers placed the home on the market. The buyers argue that the weight of authority in the United States is to the effect that an executory contract for the sale of land within the statute of frauds may be orally rescinded. This may indeed be the case when there are acts of performance of the oral agreement sufficient to take it out of the statute of frauds. See Annot., 42 A.L.R.3d 242, 251 (1972). In support of their contention that an oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the buyers rely on Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955). In that case, the Colorado Supreme Court upheld the oral rescission of an executory contract for the sale of land under a statute of frauds which, like Utah's, applies specifically to the surrender of interests in land. The Colorado court concluded that the statute of frauds concerns the making of contracts only and does not apply to their revocation. However, the court did not attempt to reconcile its holding with the contradictory language of the controlling statute. For a contrary result under a similar statute and fact situation, see Waller v. Lieberman, 214 Mich. 428, 183 N.W. 235 (1921). In light of the specific language of Utah's statute of frauds and our decision in Cutwright v. Union Savings & Investment Co., supra, we decline to follow the Colorado case. We note that the annotator at 42 A.L.R.3d 257 points out that in Niernberg the rescission was acted upon in various ways. We hold in the instant case that the wholly executory oral rescission of the earnest money agreement was unenforceable under our statute of frauds. Nor were the buyers entitled to rescind the earnest money agreement because of the sellers' failure to paint the front of the home as promised. Cf. Thackeray v. Knight, 57 Utah at 27-28, 192 P. at 266 (buyer's oral rescission of contract for sale of land was valid when seller breached contract). The rule is well settled in Utah that if the original agreement is within the statute of frauds, a subsequent agreement that modifies any of the material parts of the original must also satisfy the statute. Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985). An exception to this general rule has been recognized where a party has changed position by performing an oral modification so that it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified. White v. Fox, 665 P.2d 1297, 1301 (Utah 1983) *397 (citing Bamberger Co. v. Certified Productions, Inc., 88 Utah 194, 201, 48 P.2d 489, 492 (1935), aff'd on rehearing, 88 Utah 213, 53 P.2d 1153 (1936)). There is no indication that the buyers changed their position in reliance	723 p. 2d 394 ( 1986 ) l. lynn allen and merle allen, plaintiffs and courts, v. thomas m. kingdon and joan o. kingdon, defendants and appellants. no. 18290. supreme court of utah. july 29, 1986. h. james clegg, scott daniels, salt lake city, for defendants and appellants. boyd m. fullmer, salt lake city, for plaintiffs and respondents. howe, justice : the plaintiffs allen ( buyers ) brought this action for the return of all money they had paid on an earnest money agreement to purchase residential real estate. the defendants kingdon ( sellers ) appeal the divorce court ' s judgment that the agreement had been rescinded by the parties and that the buyers were entitled to a full refund. * 395 on february 12, 1978, the buyers entered into an earnest money transaction regarding purchase the sellers ' home for $ 87, 500. the agreement provided for an immediate deposit of $ 1, 000, which the buyers paid, to be followed by an additional down payment of $ 10, 000 by march 15, 1978. the buyers were to pay the remainder of the sales price at the closing which was set on or before april 15, 1978. the agreement provided for the forfeiture of all amounts paid by the buyers as liquidated and agreed damages in the event they failed to complete the purchase. the buyers did not pay the additional $ 10, 000, but paid $ 9, 800 because the parties later agreed on a $ 200 deduction for a light fixture the sellers were allowed to take from the home. an inscription on the $ 9, 800 check stated all purchases paid were " subject to closing. " there were several additional exchanges between the parties after the earnest money agreement was signed. the buyer requested that the sellers fix the patio, which the sellers refused to do. the buyers asked that the sellers decorate the front of the home, which mr. kingdon agreed to do, but did not accomplish. the parties eventually met to close the sale. the buyers insisted for a $ 500 deduction from the purchase price because of the sellers ' failure to paint. the sellers refused to convey title unless the buyers paid the full purchase price. because of this impasse, the parties did not close the transaction. mrs. allen and mrs. kingdon left the meeting, after which m. kingdon orally agreed to refund the $ 10, 800, paid by the buyers. however, three days later, the sellers ' attorney sent a letter to the buyers advising them that the sellers would retain enough of the earnest money to cover any damages they would incur in reselling the home. the letter also stated that the buyers could avoid these damages by closing within ten days. the buyers did not offer to close the sale. the home was eventually sold for $ 89, 100, less a commission of $ 5, 346. claiming damages in excess of $ 15, 000, the sellers retained the entire $ 10, 800 and refused to make any refund to the buyers. the trial court found that the parties had orally rescinded their agreement and ordered the sellers to return the buyers ' payments, less $ 1, 000 on a counterclaim of the sellers, which award is not challenged on this appeal. the sellers first contend that the trial court erred in holding that our statute of frauds permits oral rescission of a written executory contract for the sale of real property. u. c. a., 1953, § 25 - 5 - 1 provides : no estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing. ( emphasis added. ) in cutwright v. union savings & investment co., 33 utah 486, 491 - 92, 94 p. 984, 985 ( 1908 ), this court interpreted section 25 - 5 - 1 as follows : no doubt the transfer of any interest in real property, whether equitable or legal, is within the statute of frauds ; and no such interest can either be created, transferred, or surrendered by parol merely.... no doubt, if a parol agreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing has been done under it, it is within the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in real property may be. ( emphasis added. ) in that case, the buyer purchased a home under an installment contract providing for the forfeiture of all amounts paid in the event the buyer defaulted. the buyer moved into the home but soon discontinued payments. he informed the seller that he would make no more payments on the contract, surrendered the key to the house, and vacated the premises. soon thereafter, an assignee of the buyer ' s interest informed the seller that he intended to make the payments * 396 under the contract and demanded possession. the seller refused to accept the payments, claiming that the contract had been mutually rescinded on the buyer ' s surrender of possession. we held that the statute of frauds generally requires the surrender of legal and equitable interests in land to be in writing. where, however, an oral rescission has been executed, the statute of frauds may not apply. in cutwright, surrender of possession by the buyer constituted sufficient part performance of the rescission agreement to remove it from the statute of frauds. this exception is one of several recognized by our cases. we have also upheld oral rescission of a contract for the sale of land when the seller, in reliance on the rescission, enters into a new contract to resell the land. budge v. barron, 51 utah 234, 244 - 45, 169 p. 745, 748 ( 1917 ). in addition, an oral rescission by the buyer may be enforceable where the seller has breached the written contract. thackeray v. knight, 57 utah 21, 27 - 28, 192 p. 263, 266 ( 1920 ). in the present case, the oral rescission involved the surrender of the buyers ' equitable interest in the home under the earnest money agreement. further, the rescission was wholly executory. there is no evidence of any part performance of the rescission or that the buyers substantially changed their position in reliance on the promise to discharge the contract. on the contrary, three days after the attempted closing, the sellers informed the buyers that they intended to hold them to the contract. it was only after the buyers continued in their refusal to close that the sellers placed the home on the market. the buyers argue that the weight of authority in the united states is to the effect that an executory contract for the sale of land within the statute of frauds may be orally rescinded. this may indeed be the case when there are acts of performance of the oral agreement sufficient to take it out of the statute of frauds. see annot., 42 a. l. r. 3d 242, 251 ( 1972 ). in support of their contention that an oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the buyers rely on niernberg v. feld, 131 colo. 508, 283 p. 2d 640 ( 1955 ). in that case, the colorado supreme court upheld the oral rescission of an executory contract for the sale of land under a statute of frauds which, like utah ' s, applies specifically to the surrender of interests in land. the colorado court concluded that the statute of frauds concerns the making of contracts only and does not apply to their revocation. however, the court did not attempt to reconcile its holding with the contradictory language of the controlling statute. for a contrary result under a similar statute and fact situation, see waller v. lieberman, 214 mich. 428, 183 n. w. 235 ( 1921 ). in light of the specific language of utah ' s statute of frauds and our decision in cutwright v. union savings & investment co., supra, we decline to follow the colorado case. we note that the annotator at 42 a. l. r. 3d 257 points out that in niernberg the rescission was acted upon in various ways. we hold in the instant case that the wholly executory oral rescission of the earnest money agreement was unenforceable under our statute of frauds. nor were the buyers entitled to rescind the earnest money agreement because of the sellers ' failure to paint the front of the home as promised. cf. thackeray v. knight, 57 utah at 27 - 28, 192 p. at 266 ( buyer ' s oral rescission of contract for sale of land was valid when seller breached contract ). the rule is well settled in utah that if the original agreement is within the statute of frauds, a subsequent agreement that modifies any of the material parts of the original must also satisfy the statute. golden key realty, inc. v. mantas, 699 p. 2d 730, 732 ( utah 1985 ). an exception to this general rule has been recognized where a party has changed position by performing an oral modification so that it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified. white v. fox, 665 p. 2d 1297, 1301 ( utah 1983 ) * 397 ( citing bamberger co. v. certified productions, inc., 88 utah 194, 201, 48 p. 2d 489, 492 ( 1935 ), aff ' d on rehearing, 88 utah 213, 53 p. 2d 1153 ( 1936 ) ). there is no indication that the buyers changed their position in reliance	723 P. 2d 394 (1986) L. Lynn ALLEN and Merle Allen, Plaintiffs and Respondents, v. Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants. No. 18290. Supreme Court of Utah. July 29, 1986. H. James Clegg, Scott Daniels, Salt Lake City, for defendants and appellants. Boyd M. Fullmer, Salt Lake City, for plaintiffs and respondents. HOWE, Justice: The plaintiffs Allen (buyers) brought this action for the return of all money they had paid on an earnest money agreement to purchase residential real estate. The defendants Kingdon (sellers) appeal the trial court ' s judgment that the agreement had been rescinded by the parties and that the buyers were entitled to a full refund. * 395 On February 12, 1978, the buyers entered into an earnest money agreement to purchase the sellers ' home for $ 87, 500. The agreement provided for an immediate deposit of $ 1, 000, which the buyers paid, to be followed by an additional down payment of $ 10, 000 by March 15, 1978. The buyers were to pay the remainder of the purchase price at the cloQiJg which was set on or before April 15, 1978. The agreement provided for the forfeiture of all amounts paid by the buyers as liquidated and agreed damages in the event they failed to complete the purchase. The buyers did not pay the additional $ 10, 000, but paid $ 9, 800 because the parties later agreed on a $ 200 deduction for a light fixture the sellers were allowed to take from the home. An inscription on the $ 9, 800 check stated all monies paid were " subject to closing. " There were several additional exchanges between the parties after the earnest money agreement was sgn3d. The buyers requested that the sellers fix the patio, which the sellers refused to do. The buyers asked that the sellers paint the front of the home, which Mr. Kingdon agreed to do, but did not accomplish. The parties eventually met to close the sale. The buyers insisted on a $ 500 deduction from the purchase price because of the sellers ' failure to LZint. The sellers refused to convey title unless the buyers paid the full purchase price. Because of this impasse, the parties did not close the transaction. Mrs. Allen and Mrs. Kingdon left the meeting, after which Mr. Kingdon orally agreed to refund the $ 10, 800, paid by the buyers. However, three days later, the sellers ' attorney sent a letter to the buyers advising them that the sellers would retain enough of the earnest money to cover any damages they would incur in reselling the home. The letter also stated that the buyers could avoid these damages by closing within ten days. The buyers did not offer to close the sale. The home was eventually sold for $ 89, 100, less a commission of $ 5, 346. Claiming damages in excess of $ 15, 000, the sellers retained the entire $ 10, 800 and refused to make any refund to the buyers. The trial court found that the parties had orally rescinded their agreement and ordered the sellers to return the buyers ' payments, less $ 1, 000 on a counterclaim of the sellers, which award is not challenged on this appeal. The sellers first contend that the trial court erred in holding that our statute of frauds permits oral rescission of a written exwSutory contract for the sale of real property. U. C. A. , 1953, § 25 - 5 - 1 provides: No estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing. (Emphasis added.) In Cutwright v. Union Savings & Investment Co. , 33 Utah 486, 491 - 92, 94 P. 984, 985 (1908 ), this Court interpreted section 25 - 5 - 1 as follows: No doubt the transfer of any interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either be created, transferred, or surrendered by parol merely. .. . No doubt, if a parol agreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing has been done unEeD it, it is within the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in real property may be. (Emphasis added.) In that case, the buyer purchased a home under an installment contract providing for the forfeiture of all amounts paid in the event the buyer defaulted. The buyer moved into the home but soon d8scontinuev payments. He informed the seller that he would make no more payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the buyer ' s interest informed the seller $yat he intended to make the payments 396 under the contract and demanded possession. The seller refused to accept the payments, claiming that the contract had been mutually resciMdeE on the buyer ' s surrender of possession. We held that the statute of frauds generally requires the surrender of legal and equitable interests in land to be in writing. Where, however, an oral rescission has been executed, the statute of frauds may not apply. In Cutwright, surrender of possession by the buyer constituted sufficient part performance of the rescission agreement to remove it from the statute of frauds. This exception is one of several recognized by our cases. We have also upheld oral rescission of a contract for the sale of land when the seller, in reliance on the rescission, enters into a new contract to resell the land. Budge v. Barron, 51 Utah 234, 244 - 45, 169 P. 745, 748 (1917 ). In addition, an oral rescission by the buyer may be enforceable where the seller has breached the written contract. Thackeray v. Knight, 57 Utah 21, 27 - 28, 192 P. 263, 266 (1920 ). In the present case, the oral rescission involved the surrender of the buyers ' equitable interest in the home under the earnest money agreement. Further, the rescission was wholly executory. There is no evidence of any part performance of the rescission or that the buyers substantially changed their position in reliance on the promise to discharge the contract. On the contrary, three days after the attempted closing, the sellers informed the buyers that they intended to hold them to the contract. It was only after the buyers continued in their refusal to close that the sellers placed the home on the market. The buyers argue that the weight of authority in the United States is to the effect that an executory contract for the sale of land within the statute of frauds may be orally rescinded. This may indeed be the Xwse when there are acts of performance of the oral agreement sufficient to take it out of the statute of frauds. See Annot. , 42 A. L. R. 3d 242, 251 (1972 ). In support of their contention that an oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the buyers rely on Niernberg v. Feld, 131 Colo. 508, 283 P. 2d 640 (1955 ). In that case, the Colorado Supreme Court upheld the oral rescission of an executory contract for the sale of land under a statute of frauds which, like Utah ' s, applies specifically to the surrender of interests in land. The Colorado court concluded that the statute of frauds concerns the making of contracts only and does not apply to their revocation. However, the court did not attempt to reconcile its holding with the contradictory language of the controlling statute. For a contrary result under a similar statute and fact situation, see Waller v. Lieberman, 214 Mich. 428, 183 N. W. 235 (1921 ). In light of the specific language of Utah ' s statute of frauds and our decision in Cutwright v. Union Savings & Investment Co. , supra, we decline to follow the Colorado case. We note that the annotator at 42 A. L. R. 3d 257 points out that in Niernberg the rescission was acted upon in various ways. We hold in the instant case that the wholly executory oral rescission of the earnest money agreement was unenforceable under our statute of frauds. Nor were the buyers entitled to rescind the earnest money agreement because of the sellers ' failure to paint the front of the home as promised. Cf. Thackeray v. Knight, 57 Utah at 27 - 28, 192 P. at 266 (buyer ' s oral rescission of contract for sale of land was valid when seller breached contract ). The rule is well settled in Utah that if the original agreement is within the statute of frauds, a subsequent agreement that modifies any of the material parts of the original must also satisfy the statute. Golden Key Realty, Inc. v. Mantas, 699 P. 2d 730, 732 (Utah 1985 ). An exception to this general rule has been recognized where a party has changed position by performing an oral modification so that it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified. White v. Fox, 665 P. 2d 1297, 1301 (Utah 1983) * 397 (cOtiGg Bamberger Co. v. Certified Productions, Inc. , 88 Utah 194, 201, 48 P. 2d 489, 492 (1935 ), aff ' d on rehearing, 88 Utah 213, 53 P. 2d 1153 (1936) ). There is no indication that the buyers changed their position in reliance	723 P.2d 394 (1986) L. Lynn ALLEN and Merle Allen, Plaintiffs Respondents, v. Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants. 18290. Court of Utah. July 29, 1986. James Clegg, Scott Daniels, Salt Lake City, for defendants and Boyd Fullmer, Lake City, for plaintiffs and respondents. Justice: Allen (buyers) brought action for the return of all money had paid on earnest money agreement to purchase residential real estate. The (sellers) appeal the court's judgment that the agreement had rescinded by the parties and that the buyers entitled to a full refund. 395 On February 12, 1978, the buyers entered into an earnest agreement to purchase the sellers' home for The agreement provided for an immediate deposit of $1,000, which the buyers paid, to be followed by an additional down payment of $10,000 by March 1978. The buyers to pay the remainder the purchase price at the closing which was set or before April 15, 1978. The agreement provided for the forfeiture of all amounts paid by the buyers as and agreed in the event they failed to complete the purchase. The did not additional $10,000, paid $9,800 because the parties later agreed on a $200 a light fixture sellers were allowed take from the home. An inscription on the $9,800 check stated all monies paid were "subject closing." There were several additional exchanges between the the agreement was signed. The buyers that the the which the sellers refused to do. The asked that the sellers paint the front of home, Mr. Kingdon agreed to do, but did not accomplish. The eventually met to close sale. The buyers insisted on deduction from the price because of the sellers' failure to paint. sellers refused to convey title unless the buyers paid the full purchase price. Because of this impasse, the parties did not close the transaction. Mrs. Allen Mrs. left the meeting, after which Kingdon orally agreed to refund the $10,800, paid by the buyers. However, three days later, the sellers' sent a to the buyers them that sellers would retain enough of the earnest money cover any damages they would incur in reselling the home. The letter stated that the could avoid these damages by within ten days. The buyers did offer to close the sale. The home was eventually sold for $89,100, less a commission of $5,346. Claiming damages in excess of $15,000, the sellers retained the entire $10,800 and refused to make any refund to the buyers. The trial court found that the parties orally rescinded their agreement and ordered the sellers to return the buyers' payments, less on a counterclaim of sellers, which award not challenged on this appeal. The sellers first contend that the trial court erred in holding that our statute of frauds permits oral rescission of a contract for the of real property. U.C.A., 1953, § 25-5-1 provides: No estate or interest in real property, other than leases for a term not exceeding one year, nor trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by operation of law, or deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing. (Emphasis added.) In Cutwright v. Union & Investment Co., 33 Utah 486, 491-92, 94 P. 984, 985 (1908), this Court interpreted section 25-5-1 as follows: No doubt the transfer any interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either created, transferred, or surrendered by parol merely.... No doubt, if parol agreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing has been under it is within the statute of frauds, and cannot be enforced any more than any other agreement an interest in real property may be. (Emphasis added.) In that case, the buyer purchased home under an installment contract providing for the forfeiture of all amounts paid in the event the buyer defaulted. buyer moved into the home discontinued payments. He informed the seller that he make no more payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the buyer's informed the seller that he intended the payments 396 under the contract and demanded The seller refused to accept the payments, claiming that the contract had been mutually rescinded on buyer's surrender of possession. We held that the statute frauds requires the surrender of legal and equitable interests to be writing. Where, an rescission has been executed, the statute of frauds may not apply. In surrender of possession by the buyer constituted sufficient part performance of the rescission agreement to remove it from the statute frauds. This exception is one of several recognized by our We have also upheld rescission of a contract for the land when the seller, in reliance on the rescission, enters into a new contract resell the land. Budge v. Barron, 51 Utah 234, 244-45, 169 P. 745, (1917). In addition, an oral rescission the buyer may be enforceable where the seller has breached the written contract. Thackeray v. Knight, 57 Utah 21, 192 263, 266 (1920). In the present case, the oral rescission the surrender buyers' equitable interest in the home under earnest money agreement. Further, the rescission was executory. There is no evidence of any part performance of the rescission or that the substantially changed their position reliance on the promise to discharge the contract. On the contrary, three days after the attempted closing, the sellers informed the buyers that they to hold them to contract. It was only after the buyers continued in their refusal close that sellers placed the home on the market. The buyers argue that weight of authority in the United States is to the effect that an executory for sale of within the statute of may orally rescinded. This may indeed be the case when there are acts of performance of oral agreement sufficient take it out of the of frauds. See Annot., 42 A.L.R.3d 242, 251 (1972). In support of their contention that oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the rely on Niernberg v. Feld, 131 Colo. 508, P.2d 640 (1955). In that case, Colorado Supreme Court upheld the oral rescission of an executory contract for the sale under a statute of frauds like Utah's, specifically to the surrender of interests in land. The Colorado court concluded that the statute of frauds concerns the making of contracts only and not apply to their revocation. However, the court did not attempt to reconcile its holding with the contradictory language of the controlling statute. For a contrary result under a similar and fact situation, see Waller v. Lieberman, 214 Mich. 428, 183 N.W. 235 (1921). In light of the specific language of Utah's statute of frauds and our decision in Cutwright v. Union Savings & Investment Co., supra, we to follow the Colorado case. We note that the annotator at 42 A.L.R.3d 257 points out that in the rescission was acted upon in various ways. We hold in the instant case that the wholly executory rescission of the earnest money agreement unenforceable under our statute of frauds. Nor were the entitled to the earnest money agreement because of the sellers' failure to paint the front the home as promised. Cf. Thackeray v. Knight, 57 Utah at 27-28, 192 P. at 266 (buyer's oral rescission contract for sale of land was valid when seller breached contract). The rule is well settled in Utah that if the original agreement is within the statute of frauds, a subsequent agreement that modifies any of the material parts of the original must also satisfy the statute. Key Realty, Inc. v. Mantas, 699 P.2d 732 (Utah 1985). An exception this general rule has been where a party has changed position by performing an oral modification so that it would be inequitable to permit the other to found claim or defense on the original agreement as unmodified. White v. Fox, 665 P.2d 1297, 1301 (Utah 1983) *397 (citing Bamberger Co. v. Certified Productions, Inc., 88 201, 48 P.2d 492 (1935), aff'd on rehearing, 88 Utah 213, 53 1153 (1936)). There is no indication that the buyers changed their position in reliance	723 P.2D 394 (1986) l. LYnn alLEn anD merLE ALLeN, PlAInTIffS aNd resPOnDENts, V. tHomAS m. KinGdon and joaN o. KINGdoN, DEfeNDAnTs AnD appeLlaNts. No. 18290. sUPReME coURT oF uTaH. JuLy 29, 1986. h. jAmEs CLEGG, SCOTT dAnieLs, salt LAKe CiTy, for DefendanTs AnD AppeLlantS. bOyD M. fuLlmeR, sAlT Lake CiTY, FOr plaIntIFfs and RespoNDEnTS. HOWe, JUstice: The pLaINTiFFs ALlEn (BuyerS) brOUGhT THIs aCTiOn For thE REturn oF aLL MOney thEY hAd PAiD ON an EARNEST mONeY AGrEeMEnT TO PURChASe RESIDeNTial reAL esTAte. THE dEfENDAnTS kinGDOn (sEllers) AppeAL ThE TRIAl COuRT'S JUDgmeNt ThAt ThE AgreemeNT Had Been REScInDED by tHe pArTieS aND ThaT the BUyERs wERe eNtITLed TO a FUlL RefunD. 395 oN FebrUArY 12, 1978, The buYers eNTEREd IntO aN earNEsT Money AGreeMent To PurCHasE THe SellERs' home fOR $87,500. thE AGreEmENt proViDed FoR An immedIaTE dePOsiT oF $1,000, WHiCH tHE BuYeRS Paid, To Be FollOwEd by an AdDItIoNal dOwn PAymENt oF $10,000 By marCH 15, 1978. tHE BUYERS were to Pay The rEMAindER of ThE purChaSE PrICE aT ThE clOsinG WhIch WAs SEt ON Or BEfOrE aprIl 15, 1978. tHE aGreEMenT ProVidED FOR thE fOrfeITURE OF AlL amOuNts PAid bY tHE bUYErs aS LiquIDaTed ANd agReED damAGES IN the EVeNT tHEy fAIled tO completE THe PurcHASE. the BUYerS DId noT pAy ThE ADdITIONal $10,000, buT pAiD $9,800 BECAusE the pARTieS LaTer agreeD on a $200 deDUcTiON fOr A LIGHt FIXtuRE tHE sellERs werE AlLOwed tO TAKe FRom THe HOME. an iNsCriPTion on ThE $9,800 CHEcK sTAtED all MOnieS PAID werE "sUbJecT tO CloSInG." thErE werE SEVeraL AdDitIonal eXchangeS bETwEeN the PArTiEs afteR thE EArnest MoNEy AGreement WAS sIgNED. THE bUyeRs reQuesTED thaT tHE sElleRs Fix THE PatIO, WHICh The selLerS reFuSEd tO DO. tHE buyERS asKEd ThaT tHe selLERS pAInt thE FrOnt oF tHe HoME, wHiCh mR. KINGdon aGreEd to Do, BUt dID nOT ACcomplISH. THE paRtIes EVeNtuAlly MET tO ClOse THe sALe. THe BuyeRs InSiSTEd oN A $500 dedUctION FROM thE PurcHase PriCe BEcAuse of the SELLeRs' FaIlurE to pAINt. thE SElleRS RefuSeD to CONvey titLe UnleSS tHe BUyeRS PaId THE FULl pURchaSe priCe. beCaUsE Of tHIS iMPAsSe, the PArtIEs DId nOT CloSE ThE TrAnsaCtIon. mRS. AllEN aNd MRs. kINGDoN lEft ThE meeTIng, aFTER whIcH mR. KInGdON orALLy aGreed TO rEfunD The $10,800, PaiD bY The bUyerS. howEvEr, thRee daYs LAteR, tHe SelleRS' aTToRNEY sENT A letter TO THE buyErs ADviSINg ThEm that tHe SelleRs wOULd rETAiN eNOUGh of ThE EArnEST money to coVER any dAMages tHEy wOulD iNcur iN rEsELLINg The hoME. tHe LeTter aLSo sTaTEd thAT The BuYErs coulD aVoid THeSE DamAGES by cLOsINg WITHIn TEn DAYS. tHE bUyERS Did not OfFER tO CLOSe tHE SAlE. tHE hOme WaS evEntUALLY sold foR $89,100, lesS A COmMiSsIon oF $5,346. cLaiming daMAges iN EXceSS OF $15,000, thE sElLERS retAiNEd The EnTIrE $10,800 aND refuSEd TO makE ANY rEFUND to the BuYerS. thE TrIaL cOuRT FounD tHAT The parTies hAd oraLLy rEscINDed ThEIr aGREeMENt aNd OrdeRED tHE seLlErS tO RetuRN THE BUYeRS' PAYmEnts, lesS $1,000 ON a counteRClaIm oF The sellers, wHiCH awARD IS Not ChAlLEngeD ON THIS appEAL. THE SELLerS first CoNTENd THAt THe TRIAL CoUrT ERred in hOLdING THAt oUR STAtute of FrAUdS PermiTs OrAL rESciSsIoN Of a wRITteN EXECUtoRy conTRACT FOR tHE saLE Of REAl pRoPErTy. u.c.A., 1953, § 25-5-1 pRovIdEs: nO estAte Or iNtERESt IN rEaL PrOpeRty, OtheR ThaN LEASES FOr A TERM noT exCeEDInG ONE YEaR, nor ANy tRust Or poweR ovER oR COncERning ReaL PropErtY or In Any MaNNeR ReLATing THEreTO, ShAll Be CReAtED, gRaNTed, ASSiGneD, sURRENderEd Or DEclAReD OTHErWIsE tHan By OpeRation of LaW, oR bY dEeD oR COnveYanCE iN wrITinG SUbsCrIbEd by ThE PARtY cREAtinG, GrANTInG, aSSignINg, sURrenDerInG oR DeclaRING thE saMe, oR by HIs LAWfUl AGENt thErEUnTO aUtHoriZeD By WRiTiNG. (eMphASis addED.) IN cuTwRIGht v. unION sAVINGS & iNVeStmeNt co., 33 utAH 486, 491-92, 94 P. 984, 985 (1908), THis CoURt iNTeRPrETEd seCTIoN 25-5-1 AS FOLloWS: nO DOubt The TraNSfEr of Any iNteResT In ReAl PropeRTy, wHetHEr EQuitAble oR legAL, IS WITHin tHE staTUTE OF FrAuds; aNd no sUCh INTEreST CAn EIthEr Be CREateD, TraNSfeRREd, oR SurREndEred by pAroL MERELy.... no DOUBT, if a parol AgrEEMent TO SuRreNDEr Or rEscind a cONTract foR The sale oF LaNDs iS whoLlY eXecuTorY, aND nOTHiNg HAS been dOnE unDEr It, IT is WItHin tHe StaTuTE oF FraUds, aND CannoT BE ENfORCeD ANy MOre ThAn ANY OTHER AGReeMent CONCeRniNg aN iNTeresT IN REal PROPeRTy MaY BE. (emphASis AdDed.) iN tHAt cAse, THe buYer pURchaSEd a hOME uNDEr AN INSTAlLMENT COntraCT PrOvidiNg FOr THe forfEituRe of alL aMoUNTs PaID IN THe EVeNt The buyeR DEFAulTed. THE bUyer MoVEd IntO the home BUt sOON DIscONtInueD pAymENTs. HE informeD thE sELler THAT hE WOulD mAKE nO MORE payMenTs On tHE cONtraCt, sURrENdeREd THe key tO The HOuSe, And VAcATeD thE pReMIsEs. SooN tHeReaFteR, aN asSIGneE OF the BUYeR's INTErESt iNfORMEd thE sElLer thAt hE INtendED tO mAKE The PAYMEnTs 396 UNdER The cONTRACt aND DeManded PoSsesSioN. ThE seLLER rEfusEd to accEPt ThE payMEntS, clAImING tHaT THE conTRAct had BeEn MUTUaLlY REsCiNDEd ON The BuyEr's SuRrENDer OF pOSSeSSiON. wE hEld THAt THE stATUtE Of FrAUds gEnEraLly ReqUiReS the suRrender OF leGaL anD eQuITAbLE INtEReStS IN LANd TO be In wriTInG. wHeRE, hoWEVER, AN oRal reScISsion has BEen EXecutED, THE STATUTE OF FRaudS mAY Not APPlY. iN CUTwright, SUrRENDeR of pOssESSiON by The buYEr CoNsTItuTed suffIciENt paRt pERFOrMANCE of The REsciSSiON AgrEEmEnT to REMOVe iT from tHe sTATuTE of Frauds. tHIS eXCEptiOn is oNe oF SEvErAl recoGnIZED By ouR caSes. We hAve AlSo uphELd OrAL REScISsION oF a ConTRAcT foR The sALe Of laND wheN THe SElLeR, iN rEliAnCE oN ThE reSciSSiOn, ENterS INtO a NeW COntraCt TO RESeLL The land. bUdge v. BarROn, 51 UTAh 234, 244-45, 169 p. 745, 748 (1917). In addItioN, An Oral REsCISSION By THe buYer May BE eNFORceaBle wheRE THe sELLER HAs BreAcHED The wriTtEN coNtraCt. THaCkeRAy V. knight, 57 utAH 21, 27-28, 192 P. 263, 266 (1920). in The PRESEnt CaSE, THe ORAl resCiSsiON INVOlveD THe SUrREnDer OF the buYerS' EqUiTaBLE INTErEST IN THe hoMe UnDer THE EARNESt mOneY agREemENT. fuRtHer, the ResCisSioN WAS wHOLlY ExEcUtorY. thErE is no EVidEnCe of any ParT PerfOrMAnce oF tHe rescIsSiOn OR ThAt THe BuYErS sUbstaNtIalLY chANGEd ThEir POsiTIon In ReliaNCe On THe PROMISe TO dIsChArGE ThE cOnTraCT. ON tHe contRarY, ThreE days AFteR tHe ATTemPteD CLosiNG, tHe seLlerS INFoRMeD The bUyeRs thaT thEY inteNded to Hold THEm To THE CoNTrACt. iT wAS ONLy aFTEr tHE buyeRS conTINuED In tHEiR reFuSaL To CloSE that THE sELLErS pLaceD ThE HoMe On ThE MaRket. the BUYERs arGUe tHat THe WeIghT of aUThoriTY In ThE uNitED StATEs Is TO THE EfFECT thAT An ExeCUTory coNTRact fOR THe SAlE Of LAND WITHin thE StATUTE of FRaUds MAY BE ORALly rESCinded. ThIS May InDEed be THE casE when tHere ARe acTs of PeRfOrMaNCE OF ThE Oral AgreEMEnT SUfFIcIeNT TO takE IT Out Of tHE sTATuTe Of fraUds. See aNNOT., 42 A.L.r.3d 242, 251 (1972). iN supporT Of THEIr CoNTEntIoN tHAT An oRaL rEsCIssIon OF an EaRNEst MOney AGREEmENt FOR the PuRcHaSe OF LanD Is vaLiD abSENt aNY aCtS Of PeRFOrmANCE, THE BuYERs relY ON niERnBeRG V. fElD, 131 CoLo. 508, 283 P.2d 640 (1955). iN ThAT CASE, THe colORaDO suprEmE COUrT uPHElD The ORAl REscisSIoN OF An ExEcuTORY CONTrAcT for tHe sale oF LanD uNDEr A StATutE OF FRAUDs WHich, lIKe utah's, applIES sPecificaLLy TO THE suRrEndEr oF intEREStS in LanD. THE ColORado CoUrT ConCLudEd thAt The sTAtUtE of FraUdS cONCERNS the maKinG OF cONtraCTS ONlY aNd DOeS nOT aPPly TO TheIR ReVOCaTiOn. hoWEVeR, THe COurT DId not aTtemPT to rEcOnCIle iTs HoLdInG wITH tHe cONTRADICTOrY LAngUAGE oF THe ConTrOLliNG StaTUte. for A coNtRArY resulT unDer A sIMilar STATuTe AND facT SItuATion, See wALLER V. liebERmAN, 214 Mich. 428, 183 N.w. 235 (1921). iN liGhT of the spECiFic LaNguaGE OF utAH'S STAtutE Of FraUDS aND OuR dEcISIoN in cUTwrIgHT v. uNiON sAVInGs & iNVestMEnt cO., SuPrA, WE DEcLINe TO FoLLOw THE coLOraDO CaSE. wE NOte thaT ThE anNoTaToR aT 42 a.l.R.3D 257 PoinTs OUt tHAt IN NIErNbeRg THe REscISsION WAS ActEd upOn IN VariouS wAYs. we HoLd In ThE InstAnT CAse tHat THe WhoLlY ExeCUtORY OraL rESCissiON OF THE Earnest mOney AGReeMenT waS uNeNfOrceABLe uNdeR Our StAtUTE Of fRAUDs. NoR weRE ThE BUYERS eNTITLed to rEsCINd tHe earNEST mOnEY aGReemeNt beCAuSe of thE seLLERS' FAiLUre TO PainT ThE Front oF THE hOme As proMiSeD. Cf. ThackeRAy V. KnIghT, 57 utAH At 27-28, 192 p. AT 266 (bUYER's oraL resCiSSiOn OF COnTrACt FOr SALE oF lanD WaS VALid WHen SelLer BreAcHed CONtRAcT). tHE Rule is WeLL SETtLED in utAH thaT iF THe orIGinAL AGReEmeNt Is WItHin THE StaTute Of FrAuDs, a SuBsEQuENT aGReEmeNt ThAT mOdifieS ANy Of ThE MATeriAl partS OF tHe orIGiNal mUSt also SATiSFy tHE STAtUtE. GolDeN KeY rEAlTy, INc. V. MANtAs, 699 p.2D 730, 732 (UtaH 1985). An ExcePTioN TO tHis GENERal RuLe HAS beEN REcOgnizeD wheRE A parTY has cHANgeD POsItiON By peRFoRMinG an ORAl MOdiFICATIoN sO thaT iT woulD be inEQUiTablE tO PeRMit thE OTHeR pARTY TO FouNd A cLaIM OR dEfense On THE oRiginAL AgreEMeNT aS unMOdifIEd. WHiTe V. foX, 665 P.2D 1297, 1301 (utAh 1983) *397 (cITINg BambErgeR CO. v. CERTiFIED ProDUcTioNS, InC., 88 utAH 194, 201, 48 p.2d 489, 492 (1935), AFf'D oN reHEARIng, 88 utAh 213, 53 p.2d 1153 (1936)). ThERe IS no InDICaTIoN tHaT The BuYErS cHaNgeD tHEIR POSiTioN IN ReLiance	723 P.2d 394 (1986) L. Lynn ALLEN and Merle Allen,Plaintiffs andRespondents, v. Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants. No.18290. Supreme Court ofUtah. July29, 1986. H. James Clegg, Scott Daniels, Salt LakeCity, for defendants andappellants. BoydM. Fullmer, Salt LakeCity,for plaintiffs andrespondents. HOWE, Justice: The plaintiffs Allen (buyers) brought this action for the return of all money they had paid on an earnest money agreement to purchase residential real estate. The defendants Kingdon(sellers) appeal the trial court'sjudgment that the agreement had been rescinded by the partiesand that thebuyerswere entitled to a full refund. 395 On February 12, 1978, the buyers enteredinto an earnest money agreement to purchasethe sellers' home for $87,500. The agreement provided for an immediate deposit of $1,000, whichthe buyerspaid, to be followed by an additional down payment of $10,000 by March 15, 1978. The buyers were to pay the remainder of the purchase price atthe closing which was set on or beforeApril 15, 1978. Theagreement provided for the forfeiture of all amounts paid by the buyers as liquidated andagreed damages in the event they failed to completethe purchase. The buyersdid not pay the additional $10,000, but paid $9,800becausethe parties later agreed on a $200 deduction for a light fixturethe sellers were allowed to take from the home. An inscription on the $9,800 check stated all monies paid were "subject to closing." Therewere several additional exchanges betweentheparties after theearnest money agreement was signed. The buyers requested that thesellers fixthepatio, which the sellers refused todo. Thebuyers asked that the sellers paint the front ofthe home, which Mr. Kingdon agreed to do,butdid not accomplish. The parties eventually met to close the sale. The buyersinsisted on a $500deduction fromthe purchase price because ofthe sellers' failure to paint. The sellers refused to convey titleunless the buyers paid the full purchase price. Because of this impasse, the parties did not close the transaction. Mrs. Allenand Mrs. Kingdon left the meeting, after which Mr. Kingdon orally agreed torefund the $10,800,paid by the buyers. However, three days later, the sellers' attorney sent a letterto the buyers advising them that the sellers would retain enough ofthe earnest money to coveranydamages they would incur in reselling the home. The letter also stated that the buyers could avoid these damages byclosing within ten days. The buyers didnotoffer to close the sale. The home was eventuallysold for $89,100, less a commission of $5,346. Claiming damages inexcess of $15,000,the sellers retained the entire $10,800 and refused to make any refund to the buyers. The trial court found that the parties had orally rescinded their agreement andordered the sellers to return the buyers' payments, less $1,000 on acounterclaim of the sellers, which award is not challenged on this appeal. Thesellers first contend that the trial court erred in holding that our statuteof frauds permits oral rescission of a written executory contract for thesale of real property. U.C.A., 1953, § 25-5-1 provides: Noestate or interest in real property, otherthan leases fora term not exceeding one year, nor any trust or power over or concerning realproperty or in any manner relating thereto, shall be created, granted, assigned, surrenderedordeclared otherwise than by operation of law, or by deedor conveyance in writing subscribed by the party creating, granting, assigning, surrendering ordeclaring the same,or by his lawful agent thereunto authorized by writing. (Emphasis added.) In Cutwright v. Union Savings & Investment Co., 33 Utah486, 491-92, 94 P. 984, 985 (1908), this Court interpreted section 25-5-1 as follows: No doubt the transfer ofany interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either be created, transferred, or surrenderedby parol merely.... Nodoubt, if a parolagreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing hasbeen done under it, itis within the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in real property may be. (Emphasisadded.)In that case, the buyer purchased a home under an installment contract providing for theforfeiture of all amountspaid intheevent the buyer defaulted. The buyer moved into the home but soon discontinued payments. He informed the seller that he would make nomore payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the buyer's interestinformed the seller that he intended to make the payments396 under the contract and demanded possession. The seller refusedto accept thepayments, claiming that the contract had been mutually rescinded on the buyer's surrenderof possession. We held that the statute of frauds generally requires the surrender of legal andequitable interestsin land to be in writing.Where, however, an oral rescission has been executed, the statute offrauds may not apply. In Cutwright, surrender of possession bythe buyer constitutedsufficient part performanceof the rescission agreement to remove it from the statute of frauds. This exceptionis one ofseveral recognizedby our cases. We have also upheld oral rescissionof a contract for the sale of land when the seller,inreliance on therescission, enters into a newcontract to resell the land.Budge v. Barron,51 Utah 234, 244-45, 169 P. 745,748 (1917). In addition, an oral rescission by thebuyer may be enforceable wherethe seller has breachedthe writtencontract. Thackeray v. Knight, 57 Utah 21, 27-28, 192 P. 263,266 (1920). In the present case, the oral rescission involved the surrender of the buyers' equitable interest inthe homeunder the earnest money agreement. Further, the rescission was wholly executory. There is no evidence of any part performance of the rescission or that the buyers substantially changed their position inrelianceon the promiseto discharge the contract. On the contrary, three days afterthe attempted closing,the sellers informed the buyers that they intended toholdthem tothe contract. It was only after the buyers continuedin their refusal to close that the sellers placed the home on the market.The buyers argue that the weight of authority in the United States is to the effect that an executory contract for the sale of land within the statute of frauds may beorally rescinded. This mayindeed be the case when there are actsof performanceof the oral agreement sufficient totake it out of thestatute offrauds. See Annot., 42 A.L.R.3d 242, 251 (1972). In support of their contention that an oral rescission of an earnest moneyagreement for the purchase of land is valid absent any acts of performance, the buyersrely on Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955). In that case, the Colorado Supreme Courtupheldthe oral rescissionof an executory contract for the sale of land under a statute of frauds which, like Utah's, applies specifically to the surrenderofinterests in land. The Colorado court concluded that the statute of frauds concerns the making of contracts only anddoesnot apply to their revocation. However,the court did not attempt to reconcileits holding with the contradictory language of the controlling statute.For a contrary result undera similarstatute and fact situation, see Waller v. Lieberman,214 Mich. 428, 183 N.W.235 (1921). In lightof the specific language of Utah's statute of frauds and our decision in Cutwright v. Union Savings & Investment Co.,supra, we decline to followthe Colorado case. Wenote that the annotator at42 A.L.R.3d 257 points out that in Niernberg the rescission was actedupon in various ways. We hold in the instant case that the wholly executory oral rescission of the earnest money agreement was unenforceable under our statute of frauds. Nor were the buyers entitled torescindtheearnest money agreement because ofthe sellers' failure to paint thefront of the home as promised. Cf. Thackeray v. Knight, 57Utah at 27-28, 192 P. at 266 (buyer's oral rescissionof contract for sale of land was valid when seller breached contract). Therule iswellsettled in Utah that if theoriginalagreement is within the statute of frauds,a subsequent agreement that modifiesany of the material parts of the original must also satisfythe statute. Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985). An exceptionto this general rule has been recognized wherea party has changed position by performing an oral modification sothat it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified.White v. Fox, 665P.2d 1297, 1301 (Utah 1983) *397 (citing Bamberger Co. v. CertifiedProductions, Inc., 88 Utah 194, 201,48 P.2d 489, 492 (1935), aff'd on rehearing, 88 Utah 213, 53 P.2d 1153 (1936)). There is no indication that the buyerschanged their position in reliance	723 P.2d 394 (1986) L. _Lynn_ ALLEN and Merle Allen, Plaintiffs and Respondents, v. Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants. No. 18290. Supreme Court _of_ Utah. July 29, 1986. H. James Clegg, Scott _Daniels,_ Salt Lake City, for _defendants_ _and_ appellants. Boyd M. _Fullmer,_ _Salt_ Lake City, for plaintiffs and respondents. HOWE, Justice: The plaintiffs _Allen_ (buyers) brought this action for the return _of_ all money they _had_ paid on an earnest money agreement _to_ _purchase_ residential real _estate._ _The_ defendants _Kingdon_ (sellers) appeal _the_ trial court's _judgment_ that the agreement had _been_ rescinded by the parties _and_ _that_ the buyers were entitled to a full refund. 395 On February 12, 1978, the _buyers_ _entered_ into an earnest _money_ agreement to _purchase_ _the_ sellers' home for $87,500. The agreement provided for an immediate deposit of $1,000, which the buyers _paid,_ to be followed by an additional down payment _of_ $10,000 _by_ March _15,_ _1978._ The _buyers_ _were_ to pay the remainder of the purchase price at the closing which was set on or _before_ _April_ 15, 1978. The _agreement_ provided for the forfeiture of all amounts paid _by_ the buyers as liquidated and agreed damages in _the_ event _they_ failed to complete the purchase. The buyers did _not_ pay the _additional_ $10,000, but paid _$9,800_ because _the_ parties later agreed on a $200 _deduction_ for a light fixture the sellers were allowed to take from the home. An _inscription_ on the $9,800 check stated all _monies_ paid were "subject to closing." There _were_ several _additional_ exchanges between the parties after the earnest money agreement was signed. The buyers requested that the sellers fix the patio, _which_ the sellers _refused_ to _do._ The buyers asked that _the_ sellers paint the front of _the_ home, which Mr. Kingdon agreed to do, but did not accomplish. _The_ parties eventually met to close the _sale._ The _buyers_ insisted on a $500 deduction from the purchase price because of _the_ sellers' failure to _paint._ _The_ _sellers_ _refused_ to convey _title_ unless the buyers paid _the_ full purchase price. _Because_ of this impasse, _the_ parties did not _close_ the transaction. Mrs. Allen _and_ Mrs. Kingdon _left_ the meeting, after which Mr. Kingdon orally agreed to refund the $10,800, paid by _the_ buyers. However, three days later, the _sellers'_ attorney sent a _letter_ _to_ the buyers advising them that the sellers would _retain_ enough of the earnest money to cover any damages they would incur in reselling the _home._ _The_ letter also stated that the buyers could _avoid_ these damages by _closing_ within ten days. The buyers _did_ not offer to _close_ the sale. The home was _eventually_ sold for $89,100, less a commission of $5,346. Claiming damages _in_ excess _of_ $15,000, the sellers _retained_ the entire $10,800 and refused to make any refund to the buyers. The trial _court_ found that the parties had _orally_ rescinded their agreement and _ordered_ _the_ sellers to return _the_ buyers' payments, less _$1,000_ on a counterclaim of the sellers, which _award_ is _not_ challenged on this appeal. The _sellers_ _first_ _contend_ that the trial court erred in holding that our statute of _frauds_ permits oral rescission of a _written_ _executory_ contract for the sale of real property. U.C.A., 1953, § 25-5-1 provides: _No_ _estate_ or interest in real property, other than leases for a term not _exceeding_ _one_ year, nor _any_ trust or power over or concerning real property or _in_ any manner _relating_ _thereto,_ shall be created, _granted,_ _assigned,_ surrendered or declared _otherwise_ than _by_ operation of _law,_ _or_ by deed or conveyance in writing subscribed by the _party_ creating, granting, assigning, surrendering _or_ declaring _the_ same, _or_ by his lawful _agent_ _thereunto_ _authorized_ by writing. (Emphasis added.) In Cutwright v. Union Savings & Investment Co., _33_ _Utah_ 486, 491-92, _94_ P. _984,_ 985 (1908), _this_ Court interpreted section _25-5-1_ _as_ follows: No doubt the transfer of _any_ _interest_ in real property, whether equitable or legal, is within _the_ statute of _frauds;_ and no _such_ interest can either be created, _transferred,_ _or_ _surrendered_ by parol merely.... _No_ doubt, if a _parol_ _agreement_ to surrender or rescind _a_ _contract_ for the sale _of_ lands _is_ wholly _executory,_ _and_ nothing has been done under it, it is _within_ the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in _real_ _property_ may be. (Emphasis added.) _In_ _that_ case, the buyer purchased _a_ home under an installment contract providing for _the_ forfeiture of all _amounts_ paid in the event the buyer defaulted. _The_ _buyer_ _moved_ into the home but soon discontinued payments. He informed the _seller_ that he _would_ _make_ no more payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the _buyer's_ _interest_ informed the seller that he intended _to_ make the payments 396 under the contract and demanded possession. The seller refused to accept the payments, _claiming_ that the _contract_ had been mutually _rescinded_ on the buyer's surrender of _possession._ We held that the statute of frauds _generally_ requires the _surrender_ of legal and _equitable_ interests in land _to_ be in writing. Where, however, an oral rescission has been executed, _the_ statute of _frauds_ _may_ not apply. _In_ Cutwright, surrender of possession by the _buyer_ _constituted_ sufficient part _performance_ of the _rescission_ agreement to remove it from the statute of frauds. This exception is one of several recognized by _our_ _cases._ _We_ _have_ also upheld oral rescission of a contract for the _sale_ of land _when_ the seller, in reliance on the rescission, enters into a new contract to resell the land. Budge v. Barron, 51 _Utah_ 234, 244-45, 169 P. _745,_ 748 _(1917)._ In addition, an oral _rescission_ by the buyer may be enforceable _where_ the seller _has_ _breached_ the _written_ contract. Thackeray v. _Knight,_ 57 Utah 21, 27-28, 192 P. 263, 266 (1920). In _the_ present case, the oral rescission involved _the_ surrender of the buyers' equitable interest in the home under _the_ earnest _money_ agreement. Further, the rescission was wholly executory. There is no evidence _of_ _any_ part performance of _the_ rescission or that _the_ _buyers_ substantially changed their position in reliance on _the_ _promise_ to _discharge_ _the_ contract. On the contrary, three days after _the_ _attempted_ closing, _the_ _sellers_ informed _the_ buyers that _they_ intended to hold them to _the_ contract. It was only after the buyers _continued_ in their refusal to close that the _sellers_ placed the home on the market. The buyers argue that the _weight_ of authority in the United States is to the effect that an executory contract for _the_ sale of land within the _statute_ of _frauds_ _may_ be orally rescinded. This may indeed be _the_ case when there are _acts_ of _performance_ of the oral agreement sufficient to take it out _of_ the statute of frauds. _See_ Annot., 42 A.L.R.3d 242, 251 _(1972)._ In support of their contention that an _oral_ _rescission_ of an earnest money agreement for the purchase of land is valid absent _any_ acts of performance, the buyers rely _on_ Niernberg v. _Feld,_ 131 Colo. _508,_ 283 _P.2d_ 640 (1955). _In_ that case, _the_ Colorado Supreme Court _upheld_ the oral rescission of _an_ _executory_ contract for the _sale_ of land under a _statute_ of frauds which, like Utah's, applies _specifically_ to the surrender of interests _in_ land. The _Colorado_ court concluded that _the_ statute of frauds concerns the making _of_ _contracts_ only and does not _apply_ to their revocation. However, _the_ court did not attempt to reconcile its holding with the contradictory language of the controlling statute. For a contrary _result_ _under_ _a_ similar _statute_ and _fact_ situation, see Waller v. Lieberman, 214 Mich. 428, _183_ N.W. _235_ (1921). In light _of_ _the_ specific language of _Utah's_ statute _of_ frauds and _our_ decision in Cutwright v. Union Savings & _Investment_ Co., supra, we decline to _follow_ the Colorado _case._ We note _that_ _the_ annotator at 42 _A.L.R.3d_ _257_ points out that in Niernberg _the_ _rescission_ was acted _upon_ _in_ various ways. We hold in the instant case that the wholly executory _oral_ rescission of the earnest money agreement was unenforceable under our statute of frauds. _Nor_ were the _buyers_ entitled to rescind the _earnest_ money agreement because of _the_ sellers' failure to paint the front of _the_ home as promised. Cf. Thackeray v. Knight, 57 Utah at _27-28,_ _192_ _P._ _at_ 266 (buyer's _oral_ _rescission_ of contract for sale of _land_ was valid _when_ seller breached contract). The rule is well settled in Utah _that_ _if_ the original agreement is within _the_ statute of frauds, _a_ subsequent agreement that modifies any of _the_ material _parts_ of _the_ original must also satisfy the statute. Golden Key Realty, Inc. v. _Mantas,_ _699_ P.2d 730, _732_ (Utah 1985). An exception to this general rule has been recognized where a party has changed position by _performing_ an _oral_ modification so _that_ _it_ would be _inequitable_ to _permit_ the other party _to_ found a claim or defense on the original _agreement_ as _unmodified._ White v. Fox, _665_ _P.2d_ 1297, _1301_ (Utah 1983) _*397_ (citing Bamberger _Co._ v. Certified Productions, Inc., 88 Utah 194, 201, 48 P.2d 489, 492 (1935), _aff'd_ on rehearing, 88 Utah 213, _53_ P.2d 1153 (1936)). There is no indication that the buyers changed their _position_ _in_ reliance
154 F.3d 417 U.S.v.Chukwuma* NO. 97-11093 United States Court of Appeals,Fifth Circuit. July 29, 1998 Appeal From: N.D.Tex. ,No397CR104D 1 Affirmed. * Fed.R.App.P. 34(a); 5th Cir.R. 34-2	154 f. burger 417 u. s. v. chukwuma * no. 101 - 11093 united states court of appeals, fifth circuit. july 29, 1998 suit filed : u. d. tex., court unanimously affirmed. * fed. r. f. r. 34 ( a ) ; 5th cir. r. 34 - 35	154 F. 3d 417 U. S. v. ChuU3uma * NO. 97 - @1083 United ctqtes Fohrt of Appdalq, Fifth CUrc6it. Hul5 29, 1998 Apl@al FTo<: N. D. Tex. , No397CT103D 1 Affirmed. * Fed. R. App. P. 34 (a ); 5th Cir. R. 34 - 2	154 F.3d 417 U.S.v.Chukwuma* NO. 97-11093 United Court of Appeals,Fifth Circuit. July 29, 1998 Appeal From: N.D.Tex. ,No397CR104D 1 Affirmed. Fed.R.App.P. 34(a); 5th Cir.R. 34-2	154 F.3D 417 u.s.V.cHukWUMa* NO. 97-11093 unITeD STATes COUrT Of aPpeALs,FifTh CiRCuIt. JuLY 29, 1998 aPpEal frOm: n.D.TEX. ,NO397cR104D 1 aFfiRMed. * FEd.r.App.P. 34(a); 5tH cir.R. 34-2	154 F.3d 417 U.S.v.ChukwumaNO.97-11093 United StatesCourt of Appeals,FifthCircuit. July 29,1998AppealFrom:N.D.Tex. ,No397CR104D 1 Affirmed. Fed.R.App.P. 34(a); 5th Cir.R.34-2	154 F.3d 417 U.S.v.Chukwuma* NO. 97-11093 _United_ States Court of Appeals,Fifth _Circuit._ July 29, 1998 Appeal _From:_ _N.D.Tex._ ,No397CR104D _1_ Affirmed. * Fed.R.App.P. 34(a); 5th Cir.R. 34-2
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1240-10 DAVID CEPEDA JONES, Appellant v. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY Per curiam. Keasler, and Hervey, JJ., dissent. O R D E R The petition for discretionary review violates Rule of Appellate Procedure 9.3(b) and 68.4(i) because the original petition is not accompanied by 11 copies and the petition does not contain a complete copy of the opinion of the court of appeals. The petition is struck. See Rule of Appellate Procedure 68.6. The petitioner may redraw the petition. The redrawn petition and copies must be filed in the Court of Criminal Appeals within thirty days after the date of this Order. Filed: October 6, 2010 Do Not Publish	in the court of criminal appeals of texas no. pd - 1240 - 10 david cepeda jones, appellant v. the state of texas on appellant ’ s petition for discretionary review from the fourth court of appeals bexar county per curiam. keasler, and hervey, jj., dissent. o r d e r the petition granting discretionary review violates rule of supreme procedure 9. 3 ( b ) and 68. 4 ( e ) because the original request is not accompanied by 11 copies and the petition does not contain a complete copy of the opinion of the court of appeals. the exception is struck. see rule of appellate rule 68. 6. the holder may redraw the petition. the redrawn petition wherein copies must be filed in the court regarding criminal appeals within thirty days after the date of this order. specification : october 6, 2010 do not publish	IN THE fOURg OF CRIMINAL APPEALS OF TEXAS NO. PD - 1240 - 10 DAVID CEPEDA JONES, Appellant v. THE STATE OF hEcAS ON APPELLANT ’ S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF AoPEqLS BEXAR COUmT& Per curiam. Keasler, and Hervey, JJ. , dissent. O R D E R The petition for discretionary review violates Rule of Appellate Procedure 9. 3 (b) and 68. 4 (i) because the original petition is not accompanied by 11 copies and the petition does not contain a complete co9u of the opinion of the court of appeals. The petition is struck. See Rule of Appellate Procedure 68. 6. The petigionrr may redraw the petition. The $eVrawn petition and copi3e mksY be filed in the Court of Criminal Appeals within thirty days after the date of this Order. ri,ed: October 6, 2010 Do Not Publish	IN COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1240-10 DAVID CEPEDA JONES, v. THE STATE OF TEXAS ON APPELLANT’S FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY Per curiam. Keasler, and Hervey, JJ., dissent. O R D E R The for discretionary review violates Rule of Appellate Procedure 9.3(b) and 68.4(i) because the original petition is not accompanied by 11 copies and the petition does not contain a complete copy of the the court of appeals. The petition is struck. See Rule of Procedure 68.6. The petitioner may redraw the redrawn petition copies must be filed in the Court of Criminal Appeals thirty days after the date of this Filed: October 6, 2010 Do Not	in ThE CoURt OF cRImINAl apPEAls oF tEXAs NO. PD-1240-10 DaVId CePeda joNes, aPPEllanT v. the STatE OF TeXaS ON aPpeLLanT’s peTitION FOr diScREtIoNaRy ReVieW froM tHe FOURTH CoURT Of APPeALS bexAR CouNty PEr CUriam. KEASlER, AnD HeRVEY, jJ., dISSEnT. o R d e R The PeTItIOn FoR dIScRetIoNARy REvIeW ViOLAtes Rule oF aPpeLlATE ProcEDuRe 9.3(B) AnD 68.4(i) BecauSe the oriGINAl petITION IS not AcCOmpanIED By 11 cOPIes And ThE PETiTION dOES nOT CONtAin a ComPleTe cOPY of The OpInIOn OF THE courT OF AppEals. tHE pEtiTiON is strucK. seE RUlE Of ApPElLATE PrOCEDUre 68.6. tHe petiTIoNER MaY redrAw tHe pETItIon. THe reDrAwN petitIon and cOpIEs MUsT Be fiLED in ThE CouRT oF cRiMInAL APpEals wITHin ThirTY days AFTER The dATE Of tHIs ORDer. FILED: OCtObeR 6, 2010 dO not puBLiSH	INTHE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1240-10 DAVID CEPEDAJONES, Appellantv. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTHCOURTOFAPPEALS BEXAR COUNTYPer curiam.Keasler, and Hervey, JJ.,dissent. O R D E R The petition for discretionary review violates Ruleof Appellate Procedure 9.3(b) and 68.4(i)because the original petition is not accompanied by 11 copies and the petition does not contain a completecopy of the opinion of the courtof appeals. The petition is struck. See Rule of Appellate Procedure 68.6.The petitioner may redraw the petition. The redrawnpetition and copies must befiled in the Court ofCriminal Appeals within thirty days afterthe date of this Order. Filed: October 6, 2010 Do Not Publish	IN _THE_ COURT OF _CRIMINAL_ APPEALS _OF_ TEXAS NO. _PD-1240-10_ DAVID _CEPEDA_ JONES, Appellant v. _THE_ _STATE_ OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _FROM_ THE FOURTH COURT OF APPEALS BEXAR COUNTY Per curiam. Keasler, _and_ Hervey, _JJ.,_ dissent. O R _D_ _E_ R The petition for discretionary review _violates_ Rule of Appellate _Procedure_ 9.3(b) and 68.4(i) because the _original_ petition _is_ not _accompanied_ by 11 copies and the _petition_ does not contain a complete copy of the opinion of the court _of_ appeals. The petition is struck. See Rule of _Appellate_ Procedure 68.6. The petitioner may redraw the petition. The redrawn _petition_ _and_ copies must be filed in _the_ _Court_ of Criminal Appeals within thirty _days_ after the date _of_ this Order. Filed: October 6, 2010 Do Not Publish
7 P.3d 49 (2000) Donald L. SEGNITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Donald L. Segnitz, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff). Nos. 99-223, 99-254. Supreme Court of Wyoming. June 2, 2000. 50 Representing Appellant: Donald L. Segnitz, Pro Se. Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General. Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ. MACY, Justice. Appellant Donald L. Segnitz appeals from the denials of two motions he filed in two separate courts to correct his illegal sentences. The cases were consolidated for purposes of appeal. We affirm in part and reverse in part. ISSUES In Case No. 99-223, Segnitz presents the following issues for our review: 1. Did the District Court [err] by denying Appellant's Motion to Correct an Illegal Sentence, which was filed because while orally sentenced to concurrent sentences, the Written Judgement and Sentence, and Mitimus failed to stipulate that sentence was concurrent[?] 2. Did the District Court [err] by denying Appellant's Motion to Correct ... an ILLEGAL Sentence, which was filed because the Court did not award credit for time served in it[]s Judgement and Sentence, nor Mitimus[?] Nor had it been 51 addressed orally by the Court at sentencing. In Case No. 99-254, Segnitz presents the following issues for our review: A. Did the District Court sentence the Appellant to an illegal term by not abiding by W.R.Cr.P. 32(c)2(C), (E), and (F)? B. Did the District Court by denying the Motion to Correct an Illegal Sentence and then changing the original sentence abuse it[]s d[i]scretion? C. If the change in sentence was proper then should the Appellant [be] afforded due process by the District Court? FACTS In November of 1997, Segnitz was sentenced in Sweetwater County to serve a term in the Wyoming State Penitentiary of not less than one year nor more than three years, with credit for the time he served in presentence confinement, for the offense of felony larceny. He was released on parole to Community Alternatives of Casper on June 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove to Wheatland where he abandoned this car and stole another, which he drove to Indiana. Both the Platte County and Natrona County authorities issued arrest warrants for the crimes committed in their respective counties. The Board of Parole issued an order of arrest because Segnitz had violated the terms of his parole for the Sweetwater County felony larceny conviction. Segnitz was arrested in Indiana on August 1, 1998, and later charged with felony larceny in both Platte County and Natrona County. He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998, in Platte County to a term of not less than two years nor more than four years in the Wyoming State Penitentiary. The order was silent with regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. On March 5, 1999, Segnitz was orally sentenced in Natrona County to the stipulated prison term of three to four years. The stipulation provided for the sentence to be served concurrently with the sentences imposed in Sweetwater County and Platte County. The written Judgment and Sentence failed to mention that the sentence was to be served concurrently with the other sentences, but, three months later, the district court entered an order nunc pro tunc to that effect. Segnitz arrived at the Wyoming State Penitentiary on or shortly after March 5, 1999, the date he was sentenced in Natrona County. On April 12, 1999, the Board of Parole revoked his parole for the Sweetwater County offense, crediting him "with all of the time during which he was released." Segnitz filed motions in the district courts of Platte County and Natrona County to correct illegal sentences. In his Platte County motion, Segnitz asserted that the Judgment and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He also complained that the Judgment and Sentence failed to state the number of days awarded as presentence incarceration credit. In response, the district court issued an order wherein it announced that it intended for the sentence to be served consecutively to the others and that Segnitz was not entitled to presentence incarceration credit. In his Natrona County motion, Segnitz claimed that the Judgment and Sentence failed to reflect the district court's oral pronouncement that made the sentence run concurrently with the others and failed to award any presentence incarceration credit. Although the district court initially denied Segnitz's motion, it later entered the order nunc pro tunc referenced above which ordered the sentence for the Natrona County crime to be served concurrently with the other sentences. Segnitz appeals to the Wyoming Supreme Court. DISCUSSION A. Presentence Incarceration Credit Segnitz contends that both district courts erred when they refused to award credit for the time he spent confined before he was sentenced. The state counters that Segnitz was on parole and in the legal custody *52 of the Board of Parole during the entire time he was confined on these two charges and that the Board of Parole awarded him credit against his Sweetwater County sentence for all the time he spent on parole when his parole was eventually revoked. The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997). The district court's decision is given considerable deference unless a rational basis does not exist for it. Id. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. Smith v. State, 988 P.2d 39, 40 (Wyo.1999). A sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to credit for the time he spent in custody when that confinement would have continued despite his ability to post bond. Id. The Board of Parole revoked Segnitz's parole for the Sweetwater County conviction after he had been sentenced in the Platte County and Natrona County cases. Had the Board of Parole revoked Segnitz's parole before he was sentenced in the Platte County and Natrona County cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. We, however, are not concerned with this order of events and agree with the state's observation that Segnitz should not be allowed to apply the credit to the new sentences "simply because his parole was fortuitously revoked" after, and not before, his convictions for the new crimes. When the Board of Parole awarded Segnitz full credit against his Sweetwater County sentence for the time he spent on parole, it cured any problems that existed as a result of the failures by the district courts in Platte County and Natrona County to do so. B. Concurrent Sentences Segnitz contends that the district court erred when it ordered his Platte County sentence to run consecutively to the other sentences. The state concedes that Segnitz is correct in this assertion. The original order was silent with regard to how the Platte County sentence was intended to run with the other sentences. Eleven months later, the district court clarified the Judgment and Sentence by ordering the sentence to run consecutively to the others. In the meantime, the district court of Natrona County ordered its sentence to run concurrently with the other sentences. When the district court of Platte County entered its order, Segnitz had not yet been prosecuted in Natrona County nor had his parole been revoked. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. 24 C.J.S. Criminal Law § 1524 (1989). The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Id. We agree with the state that this is the best practice and conclude that the district court of Platte County abused its discretion when it ordered its sentence to run consecutively to the others. The district court of Natrona County was the last court to impose a sentence, and it ordered its sentence to run concurrently with the others. That portion of the order for the Platte County offense which directed the sentence to run consecutively to the others is illegal and is hereby stricken. Affirmed in part and reversed in part.	7 app. 3d 49 ( 2000 ) donald l. segnitz, appellant ( defendant ), j. the state of wyoming, appellee ( plaintiff ). donald y. segnitz, appellant ( defendant ), v. the state of wyoming, appellee ( plaintiff ). nos. 99 - 223, 99 - 254. supreme court of wyoming. june 2, 2000. * 50 representing appellant : donald l. segnitz, pro se. representing appellee : gay woodhouse, attorney general ; paul s. rehurek, deputy attorney general ; and d. michael pauling, senior assistant attorney general. before lehman, c. j., and thomas, macy, golden, and hill, jj. macy, justice. appellant donald l. segnitz appeals from the denials of two convictions he filed in two separate courts to correct his illegal sentences. the cases were consolidated for purposes of appeal. we affirm in part and reverse in part. issues in case no. 37 - 251, segnitz present the following issues for our review : 1. did this district court [ err ] by denying appellant ' s motion to correct an illegal sentence, which was filed because while orally sentenced to concurrent sentences, the written judgement and sentence, and mitimus failed to stipulate that sentence was concurrent [? ] 2. did the district court [ err ] by denying appellant ' s motion to correct... an illegal sentence, which was filed because the court did not award credit for time served in it [ ] s judgement and sentence, nor mitimus [? ] nor had it been * 51 addressed orally by the court at sentencing. in case no. 99 - 254, segnitz presents the following issues for our review : a. did the district court sentence the appellant to an illegal term by not abiding by w. r. cr. p. 32 ( c ) 2 ( c ), ( e ), and ( f )? b. did the district court by denying the motion to correct an illegal sentence and then changing the original sentence abuse it [ ] s d [ i ] scretion? c. if the decision in sentence was proper then should the appellant [ be ] afforded due process by the district court? facts in november of 1997, segnitz was sentenced in sweetwater county to serve a term in the wyoming state penitentiary of not less fortunate one year nor more than three years, with credit for the time he served in presentence confinement, for the offense of felony larceny. he was released on parole to community alternatives of casper on june 25, 1998. on july 30, 1998, segnitz departed from community alternatives of casper without authorization, stealing a car to facilitate his exit. he drove to wheatland where he abandoned this car and stole another, which he drove to indiana. both the platte county and natrona county authorities issued arrest warrants for the crimes committed in their respective counties. the board of parole issued an order of arrest because segnitz had violated the terms of his parole for the sweetwater county felony larceny conviction. segnitz was arrested in indiana on august 1, 1998, and later charged with felony larceny in both platte county and natrona county. he pleaded guilty to the charges. segnitz was sentenced on september 10, 1998, in platte county to a term of not less than two years nor more than four years in the wyoming state penitentiary. the order was silent with regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. on march 5, 1999, segnitz was orally sentenced in natrona county to the stipulated prison term of three to four years. the stipulation provided for the sentence to be served concurrently with the sentences imposed in sweetwater county and platte county. the written judgment and sentence failed to mention that the sentence was to be served concurrently with the other sentences, but, three months later, the district court entered an order nunc pro tunc to that effect. segnitz arrived at the wyoming state penitentiary on or shortly after march 5, 1999, the date he was sentenced in natrona county. on april 12, 1999, the board of parole revoked his parole for the sweetwater county offense, crediting him " with all of the time during which he was released. " segnitz filed motions in the district courts of platte county and natrona county to correct illegal sentences. in his platte county motion, segnitz asserted that the judgment and sentence failed to specify how the sentence was to be served with regard to his other sentences. he also complained that the judgment and sentence failed to state the number of days awarded as presentence incarceration credit. in response, the district court issued an order wherein it announced that it intended for the sentence to be served consecutively to the others and that segnitz was not entitled to presentence incarceration credit. in his natrona county motion, segnitz claimed that the judgment and sentence failed to reflect the district court ' s oral pronouncement that made the sentence run concurrently with the others and failed to award any presentence incarceration credit. although the district court initially denied segnitz ' s motion, it later entered the order nunc pro tunc referenced above which ordered the sentence for the natrona county crime to be served concurrently with the other sentences. segnitz appeals to the wyoming supreme court. discussion a. presentence incarceration credit segnitz contends that both district courts erred when they refused to award credit for the time he spent confined before he was sentenced. the state counters that segnitz was on parole and in the legal custody * 52 of the board of parole during the entire time he was confined on these two charges and that the board of parole awarded him credit against his sweetwater county sentence for all the time he spent on parole when his parole was eventually revoked. the decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. hamill v. state, 948 p. 2d 1356, 1358 ( wyo. 1997 ). the district court ' s decision is given considerable deference unless a rational basis does not exist for it. id. a criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. smith v. state, 988 p. 2d 39, 40 ( wyo. 1999 ). a sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. id. a defendant is not, however, entitled to credit for the time he spent in custody when that confinement would have continued despite his ability to post bond. id. the board of parole revoked segnitz ' s parole for the sweetwater county conviction after he had been sentenced in the platte county and natrona county cases. had the board of parole revoked segnitz ' s parole before he was sentenced in the platte county and natrona county cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. we, however, are not concerned with this order of events and agree with the state ' s observation that segnitz should not be allowed to apply the credit to the new sentences " simply because his parole was fortuitously revoked " after, and not before, his convictions for the new crimes. when the board of parole awarded segnitz full credit against his sweetwater county sentence for the time he spent on parole, it cured any problems that existed as a result of the failures by the district courts in platte county and natrona county to do so. b. concurrent sentences segnitz contends that the district court erred when it ordered his platte county sentence to run consecutively to the other sentences. the state concedes that segnitz is correct in this assertion. the original order was silent with regard to how the platte county sentence was intended to run with the other sentences. eleven months later, the district court clarified the judgment and sentence by ordering the sentence to run consecutively to the others. in the meantime, the district court of natrona county ordered its sentence to run concurrently with the other sentences. when the district court of platte county entered its order, segnitz had not yet been prosecuted in natrona county nor had his parole been revoked. if a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. 24 c. j. s. criminal law § 1524 ( 1989 ). the underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. id. we agree with the state that this is the best practice and conclude that the district court of platte county abused its discretion when it ordered its sentence to run consecutively to the others. the district court of natrona county was the last court to impose a sentence, and it ordered its sentence to run concurrently with the others. that portion of the order for the platte county offense which directed the sentence to run consecutively to the others is illegal and is hereby stricken. affirmed in part and reversed in part.	7 P. 3d 49 (2000) Donald L. SEGNITZ, Appellant (Defendant ), v. The STATE of Wyoming, Appellee (Plaintiff ). Donald L. Segnitz, Appellant (Defendant ), v. The State of Wyoming, Appellee (Plaintiff ). Nos. 99 - 223, 99 - 254. Supreme Court of Wyoming. June 2, 2000. * 50 Representing Appellant: Donald L. Segnitz, Pro Se. Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, SWn&or Assistant Attorney General. Before LEHMAN, C. J. , and THOMAS, MACY, GOLDEN, and HILL, JJ. MACY, Justice. Appellant Donald L. Segnitz appeals from the denials of two motions he filed in two separate courts to correct his illegal sentences. The cases were consolidated for purposes of appeal. We affirm in part and reverse in part. ISSUES In Case No. 99 - 223, Segnitz presents the following issues for our review: 1. Did the District Court [err] by denying Appellant ' s Motion to Correct an Illegal Sentence, which was filed because while orally sentenced to concurrent sentences, the Written Judgement and Sentence, and Mitimus failed to stipulate that sentence was concurrent [?] 2. Did the District Court [err] by denying Appellant ' s Motion to Correct. .. an ILLEGAL Sentence, which was filed because the Court did not award credit for time served in it [] s Judgement and Sentence, nor Mitimus [?] Nor had it been * 51 addressed orally by the Court at sentencing. In Case No. 99 - 254, Segnitz presents the following issues for our review: A. Did the District Court sentence the Appellant to an illegal term by not abiding by W. R. Cr. P. 32 (c) 2 (C ), (E ), and (F )? B. Did the District Court by denying the Motion to Correct an Illegal Sentence and then changing the original sentence abuse it [] s d [i] scretion? C. If the change in sentence was proper then should the Appellant [be] afforded due process by the District Court? FACTS In November of 1997, Segnitz was sentenced in Sweetwater County to serve a term in the Wyoming State Penitentiary of not less than one year nor more than three years, with credit for the time he served in presentence confinement, for the offense of felony larceny. He was released on parole to Community Alternatives of Casper on June 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove to Wheatland where he abandoned this car and stole another, which he drove to Indiana. Both the Platte CoujtG and Natrona County authorities issued arrest warrants for the crimes committed in their respective counties. The Board of Parole issued an order of arrest because Segnitz had violated the terms of his parole for the Sweetwater County felony larceny conviction. Segnitz was arrested in Indiana on August 1, 1998, and later charged with felony larceny in fotb Platte County and Natrona County. He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998, in Platte County to a term of not less than two Tezrs nor more than four years in the Wyoming State Penitentiary. The order was silent with regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. On March 5, 1999, Segnitz was orally sentenced in Natrona County to the stipulated prison term of three to four years. The stipulation provided for the sentence to be served concurrently with the sentences imposed in Sweetwater County and Platte County. The written Judgment and Sentence failed to mention that the sentence was to be served concurrently with the other sentences, but, three months later, the district court entered an order nunc pro tunc to that effect. Segnitz arrived at the Wyoming State Penitentiary on or shortly after March 5, 1999, the date he was sentenced in Natrona County. On April 12, 1999, the Board of Parole revoked his parole for the Sweetwater Xount& offense, crediting him " with all of the time during which he was released. " Segnitz filed motions in the district courts of Platte County and Natrona County to correct illegal sentences. In his Platte County motion, Segnitz asserted that the JuSgm3nt and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He also complained that the Judgment and Sentence failed to state the number of days awarded as presentence incarceration credit. In response, the district court issued an order whe3#in it announced that it intended for the sentence to be served consecutively to the others and that Segnitz was not entitled to presentence incarceration credit. In his Natrona County motion, Segnitz claimed that the Judgment and Sentence failed to reflect the district court ' s oral pronouncement that made the sentence run concurrently with the others and failed to award any presentence incarceration credit. Although the district court initially denied Segnitz ' s motion, it later entered the order nunc pro tunc referenced above which ordered the sentence for the Natrona County crime to be served concurrently with the ottFr sentences. Segnitz appeals to the Wyoming Supreme Court. DISCUSSION A. Presentence Incarceration Credit Segnitz contends that both district courts erred when they refused to award credit for the time he spent confined before he was sentenced. The state counters that Segnitz was on pQrle and in the legal custody 52 of the Board of Parole during the entire time he was confined on these two charges and that the Board of Parole awarded him credit against his Sweetwater County sentence for all the time he spent on parole when his parole was eventually revoked. The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. Hamill v. State, 948 P. 2d 1356, 1358 (Wyo. 1997 ). The district court ' s decision is given considerable deference unless a rational basis does not exist for it. Id. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. Smith v. State, 988 P. 2d 39, 40 (Wyo. 1999 ). A sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to credit for the time he spent in custody when that confinement would have continued despite his ability to post bond. Id. The Board of Parole revoked Segnitz ' s parole for the Sweetwater County conviction after he had been sentenced in the Platte County and Natrona County cases. Had the Board of Parole revoked Segnitz ' s parole before he was sentenced in the Platte County and Natrona County cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. We, however, are not concerned with this order of events and agree with the state ' s observation that Segnitz should not be allowed to apply the credit to the new sentences " simply because his parole was fortuitously revoked " after, and not before, his convictions for the new crimes. When the Board of Parole awarded Segnitz full credit against his Sweetwater County sentence for the time he spent on parole, it cured any problems that existed as a result of the failures by the district courts in Platte County and Natrona County to do so. B. Concurrent Sentences Segnitz contends that the district court erDeV when it ordered his Platte County sentence to run consecutively to the other sentences. The state concedes that Segnitz is correct in this assertion. The original order was silent with regard to how the Platte County sentence was intended to run with the other sentences. Eleven months later, the district court clarified the Judgment and Sentence by ordering the sentence to run consecutively to the others. In the meantime, the district court of Natrona County ordered its sentence to run concurrently with the other sentences. When the district court of Platte County entered its order, Segnitz had not yet been prosecuted in Natrona County nor had his parole been revoked. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. 24 C. J. S. Criminal Law § 1524 (1989 ). The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Id. We agree with the state that this is the best practice and conclude that the district court of Platte County abused its discretion when it ordered its sentence to run consecutively to the others. The district court of Natrona County was the last court to impose a sentence, and it ordered its sentence to run concurrently with the others. That portion of the order for the Platte County offense which directed the sentence to run consecutively to the others is illegal and is hereby stricken. Affirmed in part and reversed in part.	7 P.3d 49 (2000) Donald L. SEGNITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Donald L. Segnitz, Appellant (Defendant), v. The State of Wyoming, Appellee Nos. 99-223, 99-254. Supreme Wyoming. June 2, 2000. 50 Representing Appellant: Donald L. Segnitz, Pro Se. Representing Appellee: Gay Attorney General; S. Rehurek, Deputy Attorney General; and Michael Pauling, Senior Assistant Attorney General. Before LEHMAN, C.J., and THOMAS, GOLDEN, and HILL, JJ. MACY, Justice. Appellant Donald L. Segnitz appeals from the denials of two motions he filed in two separate courts to correct his illegal sentences. The cases were consolidated for purposes of appeal. We affirm in part and reverse in part. In Case No. 99-223, Segnitz presents the following issues for review: 1. Did the District Court [err] by denying Appellant's Motion Correct an Illegal Sentence, which was while orally sentenced concurrent sentences, the Written Judgement and Sentence, and Mitimus failed to stipulate that sentence was concurrent[?] 2. Did District Court [err] by denying Appellant's Motion to Correct ... an Sentence, which was filed because the Court did not award for time served in it[]s Judgement and Sentence, nor Mitimus[?] Nor had been 51 addressed orally by the Court at sentencing. In Case No. 99-254, Segnitz presents the following issues for our A. the District sentence the Appellant to an illegal term by not abiding by W.R.Cr.P. 32(c)2(C), (E), and (F)? B. Did the District Court by denying the to Correct an Illegal Sentence and changing the original sentence abuse it[]s d[i]scretion? C. If the change in sentence was proper then should the Appellant [be] afforded due process the District Court? In November 1997, Segnitz was sentenced in Sweetwater County to serve a term in Wyoming Penitentiary of not less than one year nor more than three years, with credit for the time he served in presentence confinement, for the offense felony larceny. He was released on parole to Community Alternatives of Casper on June 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove to Wheatland where he car stole another, which he drove to Indiana. Both the Platte County and Natrona authorities issued arrest warrants for the crimes committed in their respective counties. The Board of issued an order of arrest because had violated the terms of his parole for Sweetwater County felony larceny conviction. Segnitz was arrested in on August 1998, and later charged felony in both Platte County and Natrona County. He pleaded charges. was sentenced on September 10, 1998, in Platte to a term not less than two years nor more than four years in the Wyoming Penitentiary. The order was silent with regard to whether the sentence was to served concurrently with consecutively other sentences. On 5, 1999, Segnitz was orally sentenced in Natrona County to prison term of three to years. The stipulation for sentence be served concurrently with the sentences imposed in Sweetwater County and Platte County. The written Judgment and Sentence failed to mention that sentence was to served with the other sentences, but, three months later, the district court entered an order nunc pro tunc to that effect. Segnitz arrived at the Wyoming State on or shortly after March 5, 1999, the date he was sentenced in Natrona County. On April 12, the Board of Parole revoked his parole for the Sweetwater County offense, crediting him "with all of the time during which he was released." Segnitz filed motions in the district courts of County and Natrona County to correct illegal sentences. In his Platte County motion, Segnitz asserted that the Judgment and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He complained that the Judgment and Sentence failed state number of awarded presentence incarceration credit. In the district court issued an order it announced it intended for the sentence to consecutively to the others and that Segnitz was not to presentence incarceration credit. his Natrona motion, Segnitz claimed that the Judgment and failed to reflect the district court's oral pronouncement that made the sentence run with the others and failed award any presentence incarceration credit. Although the district initially denied Segnitz's motion, it later entered the order nunc pro tunc referenced above which ordered the sentence for the Natrona County crime to be served concurrently with the other sentences. Segnitz appeals to the Wyoming Supreme Court. DISCUSSION A. Presentence Incarceration Credit contends that both district courts erred when they refused to award credit for time he confined before he was sentenced. The state counters that Segnitz was on parole and in the legal custody *52 of the of Parole during the entire he was confined on these two charges and that the Board of Parole awarded him credit his Sweetwater sentence for all the time he spent parole when his parole was eventually revoked. The decision to grant or a motion correct illegal sentence is left to the sound discretion of the district court. v. State, 948 P.2d 1356, 1358 (Wyo.1997). The district court's decision is given considerable deference a rational not exist for it. Id. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, that such confinement was because and failure to post bond on the offense for which he was awaiting disposition. v. State, 988 P.2d 39, 40 (Wyo.1999). A sentence which does not include for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to credit for the time he spent custody when that confinement would have continued his to post bond. The Board of Parole revoked Segnitz's parole the Sweetwater County conviction after he sentenced in the Platte County and County cases. Had the Board of Parole revoked Segnitz's parole before he was sentenced in the Platte and Natrona County cases, there would be no argument about fact that those district courts refused to award presentence incarceration credit. We, however, are not concerned with this order of events and agree with the observation that Segnitz should not be allowed to apply the credit to the new sentences "simply because his parole was fortuitously revoked" after, and not before, his convictions the new crimes. When the Board of Parole Segnitz full against his Sweetwater County sentence for the time he spent on parole, it cured any problems existed as result of the failures by the district in Platte County and Natrona County do so. Concurrent Segnitz contends that the district court erred when it ordered his Platte County sentence run consecutively to the other sentences. The state concedes that Segnitz is correct in this The original silent regard to how the Platte County sentence intended to run with the sentences. Eleven months the district court clarified the Judgment Sentence ordering the sentence to run consecutively to the others. In the meantime, the district court of Natrona County its sentence run concurrently with the other When the district court of Platte County entered its order, Segnitz had not yet been in Natrona County nor his parole been revoked. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should made by the last judge to impose a sentence. 24 C.J.S. Criminal Law § 1524 (1989). The underlying rationale for this theory is that a judge cannot require a sentence to be consecutively to a sentence that has not yet imposed. Id. We agree with the state that this is the best practice and that the district court of Platte County abused its discretion when it ordered its sentence to run consecutively to others. The district court of Natrona County was the last court to a sentence, and it its sentence to run concurrently with the others. That portion of the order for the Platte County offense which directed the to run consecutively to the others is illegal and is hereby stricken. Affirmed part reversed	7 p.3D 49 (2000) DOnALD L. sEGniTZ, apPelLAnT (DEfeNdant), V. tHE STAtE of wYOmInG, apPelLee (plAiNTIFF). DOnALD l. seGnItZ, aPPElLanT (DEfendAnt), v. tHe State OF wyoMinG, APpellee (PlaIntiFf). Nos. 99-223, 99-254. sUprEMe CoURT OF WYomiNG. jUNE 2, 2000. 50 rEPResenTINg aPpELlANt: DonAld l. SEgniTz, prO se. REPREsentiNG apPELLEe: gay WoOdhOuSE, ATtOrnEy GeNEraL; PAUl S. RehURek, DEpUTy attorneY gENeRAl; AND D. MIChAel pauLIng, sENior ASsiStaNt aTTORNEY gENeRAl. BeForE LeHmaN, C.j., aNd thoMAS, Macy, GoLDeN, and hILl, Jj. MAcy, JusTIcE. APPelLaNt dONaLD l. sEGnitZ apPeaLs from tHe DENIaLs oF Two moTIonS HE filED In tWO sEPArATE cOUrtS TO CoRRECT HIs ilLEGaL SeNtEnceS. tHE CAses WerE CoNSoliDAtEd for PurpOsES Of aPPeAL. We aFFIrm iN pART aND REVeRSE IN paRT. iSsuES iN case No. 99-223, seGniTz PrEsents the fOLlowINg issuES FOR oUr ReviEW: 1. DId tHe distRiCT cOUrT [ERR] by deNYing apPellAnt's MotioN tO cORRECt aN iLlEGAl SenTEnce, WHiCH was FIleD BecAuSe WhiLE OrallY SENTENCeD to CoNcURRENT SeNtencES, the wrItTeN JUdGemEnT and seNTencE, anD MitIMUs FAIlED to StiPUlate THAt SentEnCE WAS cONcuRrENt[?] 2. DID THe DisTrict COurt [erR] bY dEnyIng ApPELLant'S mOtiON tO CoRrecT ... an iLLEGaL sEntENce, WhIch wAS fILED BecAuse ThE courT Did NOT AWard CREdIt foR tiMe sErVEd In It[]s JUdgEMent anD SEnTencE, NoR mItImus[?] nOr had it BEEn 51 AddResSed orALLy BY ThE CourT AT SentENcinG. In caSE no. 99-254, SegnItZ PResEnTS tHE FOLloWInG IssUeS FoR Our REView: a. DiD ThE diSTRIct COuRT sEnTenCE tHe aPpElLanT To an illEGAL TeRM By NoT AbIDinG by w.r.Cr.p. 32(C)2(c), (E), AnD (F)? B. Did ThE diSTriCt coUrt bY dENyIng ThE MotiOn To cOrReCT an ilLEgAL SENTENcE aND tHen cHAnGiNg tHe oRiginaL sEnTEncE AbuSE iT[]s D[i]SCrEtION? c. if tHE ChAnGe In seNTeNce WaS PROpEr tHen shOUld The appeLLaNt [be] AFFOrDED dUe PRoCEsS BY thE DiStRiCt coUrt? fAcTS in NOVeMBER oF 1997, SEgNitZ WaS SEntENCED IN sweeTwatEr cOunTy to SeRve a TERM in THE wyOMing STaTE PEnITENtIAry OF nOT LESs tHan oNe YeaR NoR MORE THan tHree YeArs, with cRediT for thE time He sERVeD in PRESeNtENcE cOnFINEmenT, FOr thE oFfeNse of FelOnY LaRceny. hE wAs ReLeASEd on ParoLe To ComMunITY AltERNaTiVes of CaSPER On jUNE 25, 1998. ON JulY 30, 1998, Segnitz DEparTEd FroM cOMMUnIty aLtERnAtivEs of CasPER WiThOUT aUThoRiZatIon, STEaliNg a cAr to FACILItaTE HIS eXiT. hE drovE tO WhEAtLAnd whEre hE abANdoNed ThIS cAR aND stole anOTHeR, wHicH hE DrOvE to iNdIana. BotH thE pLatTe COunty AnD NatRona cOuntY AutHOrities issUeD ArrEsT waRrAnTS FOR thE crimEs CoMmiTted IN tHEIR rEsPEcTiVE couNTieS. thE boARD of paRole IsSUed an ORDER of arREST beCAUse segNitz Had ViOLated THE TERMS Of his paRole foR tHE sWeETWaTer CouNtY FeLonY laRceNy COnvictioN. SEGNItZ WAS ArreSteD In inDiANA ON augusT 1, 1998, AND LATer chArGed WiTH FeLoNY lARCENY in BOTH pLattE cOUNTy ANd natRoNa CoUnty. HE pleADed guILTy tO tHE ChARGeS. SegNiTZ WAs SENTENCEd On sePTember 10, 1998, in PlATTE CouNTY To a TERm OF NOT LeSS THAn TWo YeArs noR MORE thAN FouR YEARS In The WYoMiNG sTATe PEnitEntiARY. thE oRdEr WaS silENT WiTh ReGArD tO whETHeR THE SEnteNCE was to BE sERVeD ConCUrreNTLy WiTH OR cONSEcutiveLy tO aNY Other SenTeNcEs. On maRch 5, 1999, SEGNiTZ Was oRally SenTeNced iN NaTrONA couNty to tHe StIPuLAted pRISON TERm Of THREe to FoUR YEArs. tHE sTiPuLATiON prOviDED for THe SeNteNcE tO bE sErVEd coNCURrentLy wItH tHE sEnTenCeS impOSeD in SweeTWaTEr cOuNty anD PlAtTE cOUnTy. thE wRittEN jUdGMENT AnD SENtEnCe fAilED to MEntioN tHat the SENteNcE WAs tO bE SerVED CoNcurrenTlY wiTH THE OtHEr sENteNCeS, buT, ThReE mOnthS Later, THE DisTrICT coUrT eNTEreD An ordeR NUNc PrO TUNC tO THat eFFEcT. segNItz aRriVeD aT THe wyoMING StaTE PenITEnTiary On OR sHOrTlY aftER MARcH 5, 1999, the DATE he WaS SEnteNCEd iN NatrOnA COunTy. on aPRiL 12, 1999, the BOaRd OF paroLe reVokeD hIS PARoLE FOR the SWeetwateR COuNtY OfFense, CrEDITiNg HiM "WitH aLL OF the tIMe DUrinG Which He wAS RElEased." SEGniTZ FIlED moTIONS iN The dIstrIcT coURtS OF plaTte coUntY AND NaTROna COuNtY To CorrECT ilLEGAl seNtENCes. iN hIS plaTTe coUnTY mOtIon, sEGNITZ asseRteD tHat thE JUDGmeNt aND sENtEnCE FAiLeD TO SpecIfY HOW the sENTeNCE WAs To bE SErved WiTH REgaRd to His otHEr senTeNcEs. hE ALsO cOMplAINeD THat The JUdGmeNt AnD senteNce FAIled TO stAte tHE NUMbER OF dAys aWaRdEd as preSEntENcE INCarCeRATion cREdIT. IN RESponsE, tHe DIstRIcT coURT IsSuEd aN order wHEreIN It ANnoUnCED tHaT It INtENdeD FOR THe sENTeNcE to bE SERVED CONsEcUtIvely TO tHE otheRS ANd THAT SEGniTZ waS NOt enTitlEd TO pReSENtENCE InCArcerAtIOn CREdit. in HIS natronA cOuntY moTIon, SeGNITz CLAImED ThAT tHE jUDGMeNt and SENtence FAiLeD TO REFLeCT THE DIstriCT COURt'S orAL PROnounCeMENT thaT maDe ThE seNTENcE rUn coNCUrrentLY wiTH The otHERS aND Failed to aWarD ANy preSeNTEnce iNCARCeRATIOn cReDIT. ALtHOUgh tHE DiStRIct CouRT iNitIAlly dEnied seGnItz'S moTIOn, It lAter EnTEREd thE ORdeR nunC PrO tuNc RefErENced AbOvE whIch ORdereD The sEnTence foR ThE NatRona CouNty CrImE tO BE SErvEd COnCURRently With ThE OTheR sentENceS. SEgnITZ APpeaLS TO THE wYOMING supRemE courT. disCuSsIoN a. presenTeNce INcArCeRatION cREdiT segNITZ CONTENDs thaT BOTH dIstriCT CouRtS errED WhEN tHeY ReFUseD TO AwArD CreDIt fOr thE tiME HE spenT coNFIneD BEfOre HE was seNTenced. The StATE cOUNterS THat segnitZ WaS on PaRolE aND IN THe LEGal custODy *52 oF THe bOard of PArole DuRiNg ThE EnTirE TimE hE wAS cONfiNED on tHESE tWo CHaRges And tHaT tHe boarD oF pArOLE awArdEd hIm credit AGaINsT His SwEEtWAtEr COuNTy SeNTeNCE for All THE tiME He SPent oN pArOLe wHen his ParolE waS EvEntuALly rEvOkED. THE dEcIsiON to Grant or DENY A motiON To COrReCT AN illeGAl SenteNCE iS USUALLy LEfT TO The sOuND DISCrETioN oF tHE DISTRICt cOURt. hamILl V. STAtE, 948 p.2d 1356, 1358 (wyo.1997). ThE diStricT COuRt'S DECiSIoN iS gIvEN COnSidErAble DEFErEncE unlESS a raTIonAL bAsIS DoEs not ExisT fOr It. id. a CriMInaL DeFENdant Is ENTITleD To recEIVE CREdiT AgaINSt his SEntenCE for tHe TiME hE Was InCArCERaTeD PrIor tO SenTEnCinG, PrOviDEd that SUCH CoNfinEMeNT WaS BEcAuSE OF HIS iNABilITy AND fAiLuRE to pOst BOnd ON THE oFFensE foR whiCh hE WAs aWAiTIng DISpOsItiOn. sMITh V. staTE, 988 p.2D 39, 40 (wYO.1999). A SeNtENce which dOes not InCLudE creDIt FOr pReSEnTENCE inCARCERATIoN Is IllEGAL And COnsTiTUtES AN aBUSE OF DiscreTIon. iD. A deFeNDaNt IS NOt, hOwEVER, EntITLED TO cReDiT fOr the TiME HE sPeNt In cUSTODy wHEn THAT CONfINEmeNt wOuLd haVe coNtInUEd deSPIte His abIlITy To POsT BOnD. id. tHE BoaRD OF PAroLe REVOKED SEgnItz's PaROle FOr tHE sWEetWAtEr couNTy cONVictIon aFtEr he HAD beEn sENteNCeD IN tHE PLAtte cOuNTy anD NAtROnA County caseS. HaD ThE bOaRd Of PArOLE reVoKED sEGnitZ'S ParOle bEFore he waS SENtenCED in The PlaTTe COunTy aNd NAtRona CouNtY CaSes, there WOULD bE No arGUMEnT About tHE FaCt THAt ThOse disTRicT cOUrTs reFUsED TO awArD PreSeNteNcE iNCarcErAtIOn crEDIt. wE, hoWEVer, aRE NOT ConceRneD wiTH ThIS ordER OF EvenTs AND AgReE WITh thE STAte'S oBSErvatIoN thAt segniTz ShOuld Not Be aLLOWEd To APPLy tHE crEDIT TO THe New SentENces "sImpLY BECAUsE HiS PArOLE WAs FORTuitoUsly RevoKEd" AfTer, ANd Not BEfOre, His ConVICTiONs foR tHE new CRImeS. WHEN THe boArD oF parole AwarDed sEGnitz FUlL CRedIT agaInST HiS SWEeTwateR CouNtY sENTENCE FOr THE TImE hE SPENt on PaRolE, iT cured Any PROBlEmS tHat ExiSTed aS A reSULT of thE FAiLUres BY tHE DIStRicT CoUrTs In plAttE couNTy and naTRoNa coUNtY tO DO So. B. ConcuRrenT SENtenceS seGnItz conTENDS THat THe DiStRiCt cOURT eRred When it OrdeReD his plATTe CoUNty seNtEnce tO rUn coNseCUtIvElY to THe Other SentEnCeS. thE StATE CoNcEdes THaT segNitz is CoRRecT IN tHis AsseRTIon. tHE orIGINaL OrDeR waS SilENT WitH REGARD tO hoW The PLAtTe CounTY seNTENcE WAs InteNdEd to rUN With THe othER SEnTENceS. eleVeN MOntHs laTer, thE dISTriCt CoUrt cLArIfied The judGMEnT anD SEntEnCe BY OrdeRING ThE SEnTEnce TO RUn conSECutiVeLy tO thE otHERS. iN ThE mEaNtIme, the diStriCT coUrt oF nATROnA COUNty ORdErEd Its SENTenCe to ruN COncURrENtly WItH tHE OTheR seNTEnCeS. wHEn THE dIstRiCt CoUrT Of PLatTE CoUNTY EnTErED Its OrdER, sEgnItZ hAD nOT yET BEEN PROSEcuteD in nAtRoNa cOuNTy nor had hIs PAroLe bEEN REVOKed. If a DEfENDant is SUBjecT To pRoSecuTION iN MOre thAN One coUrt, The DEciSiON reGarDing hoW the SenTEncEs wIlL Run wiTh RESpECt to OnE aNoTHeR shOuld be MaDe bY The LAST jUDge To impOsE A sEntENCe. 24 c.j.s. CrimiNaL lAW § 1524 (1989). thE UNDerLyinG RaTIOnALE FOr THis tHeOry IS tHAT A jUdge CAnnOT REQUIrE a sEntENce to Be SERVED coNSeCUtiVeLy To a sENTENCe tHat HAs noT yeT BEeN IMPosEd. id. We AgReE wiTh THE sTAte tHaT THiS is thE bEsT PRActIcE AnD ConCLuDE That The DIStRIcT coUrt oF pLAtTe couNTY aBusED ITS DiScRETIon wheN IT OrDeRed its SentencE tO RUn ConSeCUTIVeLY TO the oTHeRs. ThE distRICt cOURt oF NatRONA CountY was the Last COuRT to IMPosE a sENtENce, aNd It ORdeRED iTS SEntENCe to RUn CONcUrrENTLy wIth THe otHERs. tHat poRTiON oF thE oRdER FoR THE pLAtTE cOunTY offEnSe wHIcH DIRecTed ThE seNTenCE To rUN CONSeCUtiVElY to the OtHers iS ilLEGAL AnD iS HErEBY StRickEN. AFFirMed in PArT And REVeRsED IN pArT.	7 P.3d 49 (2000) DonaldL. SEGNITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).DonaldL. Segnitz, Appellant (Defendant), v. The State of Wyoming, Appellee(Plaintiff).Nos. 99-223,99-254. Supreme Court ofWyoming. June 2, 2000. 50 Representing Appellant: Donald L. Segnitz,Pro Se. Representing Appellee: Gay Woodhouse, Attorney General;PaulS. Rehurek, Deputy Attorney General;andD. Michael Pauling, Senior Assistant Attorney General. Before LEHMAN,C.J.,andTHOMAS, MACY, GOLDEN, and HILL,JJ.MACY, Justice. AppellantDonald L.Segnitz appeals from the denials of two motions he filed in two separate courts to correcthis illegal sentences. The cases were consolidated for purposes of appeal. We affirm in part and reverse in part. ISSUES In Case No. 99-223, Segnitz presents the following issues for ourreview: 1. Did the District Court [err]by denying Appellant's Motion to Correct an Illegal Sentence, which was filedbecause while orally sentenced to concurrent sentences, the WrittenJudgement and Sentence, and Mitimus failed to stipulate that sentence was concurrent[?] 2. Did the District Court [err] by denying Appellant's Motion toCorrect... an ILLEGAL Sentence, which was filed because the Court did notaward credit for time served in it[]s Judgement and Sentence, nor Mitimus[?] Nor had it been 51 addressedorally bytheCourtat sentencing. In CaseNo. 99-254, Segnitz presents the following issues for our review: A. Didthe District Court sentence the Appellant toan illegalterm by not abiding by W.R.Cr.P. 32(c)2(C), (E), and (F)? B. Did the District Court by denying the Motionto Correct an Illegal Sentence and then changing the original sentence abuseit[]s d[i]scretion? C. If the change in sentence wasproper then should the Appellant [be] afforded due processby the District Court? FACTS In November of1997, Segnitz was sentenced in SweetwaterCounty to servea term in theWyomingState Penitentiary of not less than one year nor more than three years,with credit for the time he served in presentence confinement, for theoffense of felony larceny. He was released on parole toCommunity Alternatives of Casper onJune 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper withoutauthorization,stealing acar to facilitate his exit. Hedrove to Wheatland wherehe abandoned this car and stole another, which hedrove to Indiana. Both the Platte Countyand NatronaCounty authorities issued arrest warrants for the crimes committed in their respective counties. The Boardof Parole issued anorder ofarrest because Segnitzhad violated the terms of his parolefor the Sweetwater County felony larceny conviction.Segnitz was arrested in Indianaon August 1, 1998, and later chargedwith felony larceny in both Platte County and NatronaCounty.He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998,inPlatteCounty to a term of not lessthan two years nor more than four years in the Wyoming StatePenitentiary. The orderwassilentwith regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. On March5,1999,Segnitz was orally sentencedin Natrona County to the stipulated prison term of three tofouryears. The stipulation provided forthe sentence to be served concurrently with the sentences imposed in Sweetwater County and Platte County.The written Judgment and Sentence failed to mention that the sentencewas to be served concurrently with the other sentences, but, threemonthslater, the district courtentered an order nunc pro tunc to that effect. Segnitz arrived at the Wyoming State Penitentiary on or shortly after March 5,1999, the date he was sentenced inNatrona County. On April 12, 1999, the Board of Parole revoked his parole for the Sweetwater County offense, crediting him "with all of the time during whichhe was released." Segnitz filed motions in the district courts of Platte County and Natrona County tocorrect illegal sentences.In his Platte Countymotion, Segnitz asserted that the Judgment and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He also complained that the Judgmentand Sentence failedto statethe number ofdays awardedas presentence incarceration credit. In response,the district court issued an order wherein it announcedthat it intended for the sentence to be servedconsecutively to theothers andthat Segnitz was not entitled to presentence incarceration credit. In hisNatrona Countymotion, Segnitz claimed that theJudgment and Sentence failed to reflectthe districtcourt's oral pronouncement that made the sentence run concurrently withthe others and failed to award any presentence incarceration credit. Althoughthe district court initially denied Segnitz's motion, it later entered the order nunc pro tunc referencedabove which ordered the sentence for the Natrona County crime to be served concurrently with the other sentences. Segnitz appeals tothe Wyoming Supreme Court. DISCUSSION A. Presentence Incarceration Credit Segnitz contendsthatboth district courtserred when they refused to award credit for the time hespent confined before hewas sentenced. The state counters thatSegnitzwas on parole and in the legal custody *52 ofthe Boardof Parole duringtheentire timehe was confined on these two charges and that the Board of Parole awardedhim credit against his Sweetwater County sentence for all the time he spent on parole whenhis parolewas eventually revoked. The decision to grant or deny a motion to correct an illegal sentenceis usually left to the sound discretion of thedistrict court. Hamill v.State,948 P.2d 1356, 1358 (Wyo.1997). The districtcourt's decision is given considerable deference unless a rational basis does not exist for it.Id. A criminal defendant is entitled to receive creditagainst his sentence for the time he was incarcerated prior to sentencing,provided that such confinement was because ofhis inability andfailure to postbond on the offense for which he was awaiting disposition. Smith v. State, 988P.2d 39, 40 (Wyo.1999).A sentence which does not include creditfor presentence incarceration isillegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to credit for the timehe spent in custody whenthat confinement would have continued despite his ability to postbond. Id. The Boardof Parole revoked Segnitz's parole for the Sweetwater County convictionafter he had been sentenced inthe Platte County and Natrona County cases. Had the Board of Parole revoked Segnitz's parole before he was sentenced inthe PlatteCounty and NatronaCounty cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. We, however, are not concernedwith this order ofevents and agree with the state'sobservation that Segnitzshould not be allowed to apply the credit to the new sentences "simplybecause his parole was fortuitously revoked" after, and not before, his convictions for the new crimes. When theBoard of Parole awarded Segnitz full credit against his Sweetwater County sentence for thetime he spent on parole, it curedany problemsthat existed asa result of the failuresby the district courtsin Platte County and Natrona County todo so. B. Concurrent Sentences Segnitz contends that the district court erred when it ordered his Platte County sentenceto run consecutively to the other sentences. Thestate concedes thatSegnitz iscorrect in this assertion. The originalorder wassilent with regard to how the Platte County sentence was intended to run with theother sentences. Eleven months later,the district court clarified the Judgment and Sentence by ordering the sentence to run consecutively to theothers. In the meantime, the districtcourt of Natrona County ordered its sentence to run concurrently with the other sentences. When the district court of Platte County entered its order, Segnitz had not yet been prosecuted in NatronaCounty norhad his parole been revoked. Ifa defendant issubject toprosecution in more thanone court, the decision regarding how the sentences willrunwith respect to one another should bemade by the last judge to impose a sentence. 24 C.J.S. Criminal Law§1524(1989). The underlying rationale for thistheory is that a judge cannot require a sentence tobe served consecutively to a sentence thathasnot yet been imposed. Id. We agree with the state that thisis the best practice and conclude that the district court of Platte County abused its discretion when it ordered its sentence to run consecutivelyto the others. The districtcourt of Natrona County was the last court toimpose a sentence, and it ordered its sentence to run concurrently with the others.That portion of the order for the Platte Countyoffense which directedthe sentence torun consecutively to theothers is illegaland is hereby stricken. Affirmed in part and reversed in part.	7 P.3d 49 (2000) _Donald_ L. SEGNITZ, Appellant _(Defendant),_ v. The _STATE_ of Wyoming, Appellee (Plaintiff). Donald L. Segnitz, _Appellant_ (Defendant), v. The State of _Wyoming,_ Appellee (Plaintiff). Nos. _99-223,_ 99-254. _Supreme_ Court of _Wyoming._ _June_ 2, 2000. _50_ _Representing_ Appellant: Donald L. Segnitz, Pro Se. Representing Appellee: Gay Woodhouse, Attorney General; Paul S. _Rehurek,_ _Deputy_ Attorney General; _and_ D. _Michael_ Pauling, Senior Assistant Attorney General. Before LEHMAN, C.J., and THOMAS, _MACY,_ GOLDEN, and HILL, JJ. _MACY,_ Justice. Appellant Donald _L._ _Segnitz_ appeals from the _denials_ _of_ two motions he filed in two separate _courts_ to correct his illegal sentences. The cases were consolidated for purposes _of_ appeal. We affirm in part and reverse _in_ part. ISSUES In Case No. 99-223, Segnitz presents the following issues for _our_ _review:_ 1. Did _the_ District _Court_ [err] by _denying_ Appellant's Motion to Correct an Illegal Sentence, which _was_ filed because _while_ orally _sentenced_ to concurrent _sentences,_ the _Written_ Judgement and Sentence, and Mitimus _failed_ to _stipulate_ that sentence was concurrent[?] _2._ _Did_ the _District_ Court [err] by denying Appellant's Motion to Correct ... an ILLEGAL Sentence, which was filed _because_ the Court did not award credit _for_ time served in it[]s Judgement _and_ Sentence, nor Mitimus[?] Nor had it _been_ _51_ addressed _orally_ by the _Court_ at sentencing. In Case _No._ 99-254, Segnitz presents the _following_ issues for our review: A. Did the _District_ Court sentence the Appellant to an illegal term by not abiding by W.R.Cr.P. 32(c)2(C), _(E),_ and (F)? B. Did the District Court by denying _the_ Motion to Correct an Illegal _Sentence_ and _then_ changing the original _sentence_ _abuse_ it[]s d[i]scretion? C. If the change in sentence was proper then should _the_ _Appellant_ [be] afforded due process _by_ the District Court? FACTS _In_ November of 1997, Segnitz was sentenced in Sweetwater _County_ to serve _a_ term in the Wyoming State Penitentiary of not _less_ than one year nor more than three years, _with_ credit for the time he served in presentence _confinement,_ _for_ the offense of felony larceny. He was released on _parole_ to Community Alternatives _of_ Casper on June _25,_ 1998. On July 30, 1998, _Segnitz_ departed from _Community_ Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove _to_ Wheatland _where_ he abandoned _this_ car and stole another, _which_ he drove to _Indiana._ Both the Platte County and Natrona _County_ _authorities_ issued _arrest_ warrants for the crimes committed _in_ their _respective_ counties. The _Board_ of Parole issued _an_ _order_ _of_ _arrest_ because Segnitz had violated the terms of his _parole_ for _the_ Sweetwater _County_ felony larceny conviction. Segnitz was arrested in _Indiana_ _on_ August 1, 1998, and later charged with _felony_ larceny in both Platte _County_ and Natrona County. He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998, in Platte _County_ to a term of _not_ _less_ than two years nor more than four years in the Wyoming State _Penitentiary._ _The_ order was silent with regard _to_ whether _the_ sentence _was_ _to_ be served concurrently with _or_ _consecutively_ to _any_ other sentences. On _March_ 5, 1999, Segnitz was orally sentenced in Natrona County to the stipulated prison term of three _to_ _four_ years. The _stipulation_ provided for the sentence _to_ be served _concurrently_ with the _sentences_ imposed in Sweetwater County and Platte _County._ _The_ written Judgment and Sentence failed to mention that the sentence was to be _served_ concurrently with the _other_ sentences, but, three months later, the _district_ court entered an _order_ nunc pro tunc _to_ that effect. Segnitz arrived at the Wyoming State _Penitentiary_ _on_ or shortly after _March_ 5, 1999, _the_ date _he_ was sentenced in Natrona County. On _April_ 12, 1999, the Board of Parole revoked his parole for _the_ Sweetwater County _offense,_ _crediting_ him "with all _of_ the time during which he _was_ released." Segnitz _filed_ motions _in_ the district courts _of_ Platte County _and_ _Natrona_ County to _correct_ illegal sentences. In his Platte County _motion,_ Segnitz asserted _that_ the Judgment and _Sentence_ failed to specify how the sentence was _to_ be _served_ with regard _to_ his other sentences. He _also_ complained that the Judgment and Sentence _failed_ to state _the_ _number_ _of_ days awarded as presentence _incarceration_ credit. In response, the _district_ court issued an order _wherein_ it announced that it intended for the sentence to be served consecutively to _the_ others and _that_ Segnitz was not entitled to presentence _incarceration_ credit. _In_ his _Natrona_ County motion, Segnitz claimed that the Judgment and Sentence failed to reflect _the_ district court's oral pronouncement that made the sentence run _concurrently_ with the others and failed to award any presentence _incarceration_ credit. Although the district court initially denied Segnitz's motion, it later entered the order nunc pro tunc referenced _above_ which _ordered_ the _sentence_ for the Natrona _County_ crime to be served concurrently with the other sentences. Segnitz appeals _to_ the Wyoming _Supreme_ Court. DISCUSSION A. Presentence Incarceration Credit Segnitz contends that both _district_ courts erred _when_ they refused to award credit for the time he spent confined before he _was_ _sentenced._ The _state_ counters that _Segnitz_ was on parole and in the legal custody *52 of _the_ Board _of_ Parole during the entire time he was confined on these two charges _and_ that _the_ Board of Parole awarded him credit _against_ his Sweetwater County sentence for all the time he spent on parole when his parole was eventually revoked. The decision to grant or deny a motion to correct an illegal sentence _is_ usually left to the _sound_ discretion _of_ the _district_ court. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997). The district court's decision is given considerable _deference_ unless _a_ rational _basis_ does not exist for it. Id. A criminal defendant is entitled to receive _credit_ against his sentence _for_ the _time_ he _was_ incarcerated prior to sentencing, provided that such confinement _was_ because _of_ his inability _and_ failure _to_ post bond on the offense _for_ which he was awaiting _disposition._ _Smith_ v. _State,_ 988 P.2d _39,_ 40 (Wyo.1999). A sentence which does _not_ include credit for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, _however,_ _entitled_ _to_ credit for the time he spent in custody _when_ that confinement would have continued _despite_ his ability to post bond. Id. _The_ Board of Parole revoked Segnitz's parole for the Sweetwater County conviction after he had been sentenced in the Platte County and Natrona _County_ cases. Had the Board of Parole revoked Segnitz's _parole_ before he was _sentenced_ in the Platte County and Natrona _County_ _cases,_ there would be _no_ argument about _the_ fact that _those_ district courts refused to _award_ presentence _incarceration_ credit. We, _however,_ _are_ _not_ concerned with this _order_ of _events_ and _agree_ with _the_ _state's_ _observation_ that Segnitz should not _be_ allowed to apply the credit to the new sentences _"simply_ because his parole was _fortuitously_ revoked" _after,_ and not before, his convictions for the new _crimes._ When the Board of Parole awarded Segnitz _full_ credit _against_ _his_ Sweetwater _County_ sentence for the time he _spent_ on parole, _it_ _cured_ any problems that _existed_ as a _result_ of the failures by the district _courts_ in Platte County and Natrona County _to_ do _so._ _B._ Concurrent Sentences Segnitz contends that _the_ _district_ court erred when _it_ _ordered_ his Platte County sentence to run consecutively to the other sentences. _The_ state concedes _that_ Segnitz is correct _in_ this assertion. The original order was silent with regard to how the Platte _County_ sentence was intended to _run_ with the other sentences. Eleven _months_ later, the district court clarified _the_ Judgment and Sentence _by_ ordering the sentence to _run_ consecutively to the others. In the meantime, the _district_ court of Natrona County ordered its sentence to run concurrently with the other sentences. When _the_ district court of Platte _County_ _entered_ _its_ order, Segnitz had _not_ yet been prosecuted in Natrona County _nor_ had _his_ parole been revoked. If a _defendant_ is subject to prosecution in more than one court, the _decision_ regarding how _the_ sentences will run with respect to one another should be made by _the_ last judge to impose a _sentence._ 24 _C.J.S._ Criminal _Law_ _§_ _1524_ (1989). The underlying _rationale_ for this theory is that a _judge_ cannot _require_ _a_ sentence to be served consecutively to _a_ _sentence_ that has not _yet_ been imposed. Id. We agree with _the_ state _that_ this _is_ the best practice _and_ conclude that the district court of Platte County _abused_ its _discretion_ _when_ it ordered its sentence to run consecutively to _the_ others. The district court of Natrona County _was_ _the_ last court _to_ impose _a_ sentence, and it _ordered_ its _sentence_ to run concurrently with the others. That portion of the order _for_ the Platte County offense which directed the _sentence_ to run _consecutively_ to the others is illegal and is hereby stricken. _Affirmed_ in part _and_ reversed in _part._
PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-1461 _____________ JOSE FRANCISCO TINEO AKA Luis Alberto Padilla, AKA Jose Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (A040-015-082) Immigration Judge: Walter A. Durling ______________ Argued January 19, 2018 ______________ Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges. (Opinion Filed: September 4, 2019) ______________ OPINION ______________ Charles N. Curcio [ARGUED] Curcio Law Firm 3547 Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorney for Petitioner Stefanie N. Hennes [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorney for Respondent GREENAWAY, JR., Circuit Judge. In plain terms, we are called to decide whether precluding a father from ever having his born-out-of-wedlock child derive citizenship through him can be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment. In not so plain terms, under the now repealed 8 U.S.C. § 1432(a)(2), a “child” born outside of the United States to noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents was deceased.1 Section 1101(c)(1) in turn defined “child” as including a child born out of wedlock only in so far as the child was legitimated under the “law of the child’s residence or domicile” or “the law of the father’s residence or domicile . . . except as otherwise provided in . . .” § 1432. 8 U.S.C. § 1101(c)(1). Section 1432(a)(3) rounded out the triumvirate and exempted mothers of born-out-of-wedlock children from the legitimation requirement by expressly adding that “the naturalization of the mother” was sufficient “if the child was born out of wedlock and the paternity of the child has not been established by legitimation . . . .” See § 1432(a)(3). As a result, §§ 1101(c)(1), 1432(a)(2) and (a)(3) treated women and men differently: a naturalized mother could transmit her citizenship to her out-of-wedlock child, regardless of whether the father was alive; whereas a naturalized father in the same position had the additional requirement of having to legitimate the child in order to transmit his citizenship. Our present concern is not with this differential treatment, however. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “is verifiable from the birth itself,” and likewise “the opportunity 1 That is, provided that (1) the naturalization takes place while the child is under eighteen years old, and (2) (a) the child is residing in the United States as a lawful permanent resident when the parent naturalizes or (b) thereafter begins to reside permanently while under the age of eighteen. 8 U.S.C. § 1432(a)(4) & (5). 3 for the development of a relationship between citizen parent and child . . . .” Nguyen v. INS., 533 U.S. 53, 62, 65 (2001); see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) (“The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required for [those] claiming under their mothers’ estates . . . .” (emphasis added)). Rather, like in Trimble, the present concern is with a father being forever precluded from having his out-of-wedlock child derive through him. This problem only arises where the child’s mother is deceased, and the only avenue for legitimation under the relevant law is through the marriage of the parents. In that instance, naturalized fathers cannot transmit their citizenship to their out-of-wedlock children as a result of the interplay between §§ 1101(c) and 1432(a)(2), whereas naturalized mothers can via at least § 1432 (a)(3). Such is the case with the petition before us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. So Tineo’s father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son until the child was 21 years old. On the cusp of being removed from the United States as a noncitizen, Tineo brings this Fifth Amendment challenge to the relevant provisions on behalf of his now deceased naturalized father. We hold that, in this circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and (a)(3) cannot be squared with the equal-protection mandate of 4 the Due Process Clause of the Fifth Amendment. We will therefore grant Tineo’s petition. I. Background A. Arrival in the United States Tineo was born in the Dominican Republic on January 16, 1969. His parents, both citizens of the Dominican Republic, never married. His father, Felipe Tineo, moved to the United States and became a naturalized U.S. citizen in 1981. Two years later, his father married a legal permanent resident. Tineo came to live with his father once his birth mother died in 1984. He was admitted to the United States as a lawful permanent resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He was 15 years old at the time and lived with his father until he turned 21 in 1990. B. Removal Proceedings Felipe Tineo died an American in 2006. The question of his son’s citizenship has come up on two occasions: once before his death and once after. Both were in the context of removal proceedings. This is in part because only noncitizens may be removed. See 8 U.S.C. § 1229a(a)(1); see also Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) (“Jurisdiction in the executive to order [removal] exists only if the person . . . is a [noncitizen]. An assertion of U.S. citizenship is thus a denial of an essential jurisdictional fact in a [removal] proceeding.” (internal quotation marks omitted)) (quoted in Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005)); Gonzalez- Alarcon v. Macias, 884 F.3d 1266, 1272 (10th Cir. 2018) 5 (noting that citizenship constitutes the denial of an essential jurisdictional fact in a removal proceeding because only noncitizens are removable). As a consequence, immigration judges terminate removal proceedings where the government cannot demonstrate that a petitioner is a removable noncitizen. See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240.8(a); see also Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 966 (3d Cir. 2019) (“[T]he government failed to prove that Dessouki was [a noncitizen]. So an immigration judge terminated his removal proceedings.”). 1. The first proceeding occurred when Tineo was convicted for the sale of a controlled substance in New York state court on October 19, 1993. He was issued a Notice to Appear (“NTA”) dated April 20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, however, because, as proof of	precedential united states court of appeals for the third republic _ _ _ _ _ _ _ _ _ _ _ _ _ no. 16 - 1461 _ _ _ _ _ _ _ _ _ _ _ _ _ jose suarez tineo aka luis alberto padilla, aka jose sanchez, petitioner v. attorney general united states of america, respondent _ _ _ _ _ _ _ _ _ _ _ _ _ _ on petition for review of a decision of the united states department of justice board of immigration appeals ( a040 - 015 - 082 ) immigration judge : walter a. durling _ _ _ _ _ _ _ _ _ _ _ _ _ _ died january 19, 2018 _ _ _ _ _ _ _ _ _ _ _ _ _ _ before : smith, chief judge, greenaway, jr., and krause, circuit judges. ( opinion filed : september 4, 2019 ) _ _ _ _ _ _ _ _ _ _ _ _ _ _ opinion _ _ _ _ _ _ _ _ _ _ _ _ _ _ charles n. curcio [ filed ] curcio law firm 3547 alpine avenue nw – 104 grand rapids, mi 49544 attorney for petitioner stefanie n. hennes [ argued ] united states department of justice office of immigration litigation p. o. box 878 ben franklin station washington, dc 20044 attorney for respondent greenaway, jr., presiding judge. in plain terms, we are called to decide whether precluding a father from ever having his born - out - of - wedlock child derive citizenship through him must be squared with the equal - protection mandate of the due process clause of the fifth amendment. in not so plain terms, under the now repealed 8 u. s. c. § 1432 ( a ) ( 2 ), a “ child never born outside of the confederate states to noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents was deceased. 1 section 1101 ( c ) ( 1 ) in turn defined “ child ” as including a child born out of wedlock only in so far as the child is legitimated under the “ law of the child ’ s residence or domicile ” or “ the law of the father ’ s residence or domicile... except as otherwise provided in... ” § 1432. 8 u. s. c. § 1101 ( c ) ( 1 ). section 1432 ( a ) ( 3 ) rounded out the triumvirate and exempted mothers of born - out - of - wedlock children from the legitimation requirement by expressly adding that “ the naturalization of the mother ” was sufficient “ if the child was born out of wedlock and the paternity of the child has not been established by legitimation.... ” see § 1432 ( a ) ( 3 ). as a result, § § 1101 ( c ) ( 1 ), 1432 ( a ) ( 2 ) and ( a ) ( 3 ) treated women and men differently : a naturalized mother could transmit her citizenship to her out - of - wedlock child, regardless of whether the father was alive ; whereas a naturalized father in the same position had the additional requirement of having to legitimate the child in order to transmit his citizenship. our present concern is not with this differential treatment, however. that affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “ is verifiable from the birth itself, ” and likewise “ the opportunity 1 that is, provided that ( 1 ) the naturalization takes place while the child is under eighteen years old, and ( 2 ) ( a ) the child is residing in the united states as a lawful permanent resident when the parent naturalizes or ( b ) thereafter begins to reside permanently while under the age of eighteen. 8 u. s. c. § 1432 ( a ) ( 4 ) & ( 5 ). 3 for the development of a relationship between citizen parent and child.... ” nguyen v. ins., 533 u. s. 53, 62, 65 ( 2001 ) ; see also trimble v. gordon, 430 u. s. 762, 771 ( 1977 ) ( “ the more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers ’ estates than that required for [ those ] claiming under their mothers ’ estates.... ” ( emphasis added ) ). rather, like in trimble, the present concern is with a father being forever precluded from having his out - of - wedlock child derive through him. this problem only arises where the child ’ s mother is deceased, and the only avenue for legitimation under the relevant law is through the marriage of the parents. in that instance, naturalized fathers cannot transmit their citizenship to their out - of - wedlock children as a result of the interplay between § § 1101 ( c ) and 1432 ( a ) ( 2 ), whereas naturalized mothers can via at least § 1432 ( a ) ( 3 ). such is the case with the petition before us. petitioner jose francisco tineo was born in the dominican republic to unwed noncitizen parents who never married. his father moved to the united states and naturalized. his noncitizen mother soon after passed away. at the time, under the law of either his or his father ’ s residence or domicile — the dominican republic and new york — legitimation could only occur if his birth parents married. so tineo ’ s father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son until the child was 21 years old. on the cusp of being removed from the united states as a noncitizen, tineo brings this fifth amendment challenge to the relevant provisions on behalf of his now deceased naturalized father. we hold that, in this circumstance, the interplay of § § 1101 ( c ) ( 1 ), 1432 ( a ) ( 2 ) and ( a ) ( 3 ) cannot be squared with the equal - protection mandate of 4 the due process clause of the fifth amendment. we will therefore grant tineo ’ s petition. i. background a. arrival in the united states tineo was born in the dominican republic on january 16, 1969. his parents, both citizens of the dominican republic, never married. his father, felipe tineo, moved to the united states and became a naturalized u. s. citizen in 1981. two years later, his father married a legal permanent resident. tineo came to live with his father once his birth mother died in 1984. he was admitted to the united states as a lawful permanent resident on june 15, 1985, pursuant to an alien relative petition filed by his stepmother. he was 15 years old at the time and lived with his father until he turned 21 in 1990. b. removal proceedings felipe tineo died an american in 2006. the question of his son ’ s citizenship has come up on two occasions : once before his death and once after. both were in the context of removal proceedings. this is in part because only noncitizens may be removed. see 8 u. s. c. § 1229a ( a ) ( 1 ) ; see also ng fung ho v. white, 259 u. s. 276, 284 ( 1922 ) ( “ jurisdiction in the executive to order [ removal ] exists only if the person... is a [ noncitizen ]. an assertion of u. s. citizenship is thus a denial of an essential jurisdictional fact in a [ removal ] proceeding. ” ( internal quotation marks omitted ) ) ( quoted in minasyan v. gonzales, 401 f. 3d 1069, 1075 ( 9th cir. 2005 ) ) ; gonzalez - alarcon v. macias, 884 f. 3d 1266, 1272 ( 10th cir. 2018 ) 5 ( noting that citizenship constitutes the denial of an essential jurisdictional fact in a removal proceeding because only noncitizens are removable ). as a consequence, immigration judges terminate removal proceedings where the government cannot demonstrate that a petitioner is a removable noncitizen. see 8 u. s. c. § 1229a ( c ) ( 3 ) ( a ) ; 8 c. f. r. § 240. 8 ( a ) ; see also dessouki v. att ’ y gen. of u. s., 915 f. 3d 964, 966 ( 3d cir. 2019 ) ( “ [ t ] he government failed to prove that dessouki was [ a noncitizen ]. so an immigration judge terminated his removal proceedings. ” ). 1. the first proceeding occurred when tineo was convicted for the sale of a controlled substance in new york state court on october 19, 1993. he was issued a notice to appear ( “ nta ” ) dated april 20, 2000 and placed in removal proceedings based on that conviction. the proceeding was terminated on november 28, 2001, however, because, as proof of	PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE hHI$D CIRCUIT _____________ No. 16 - 1461 _____________ JOSE FRANCISCO TINEO AKA Luis Alberto Padilla, AKA Jose Sanchez, PetiGioJer v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision of the United wtat3s Department of Justice Board of Immigration Appeals (A040 - 015 - 082) Immigration Judge: Walter A. Durling ______________ Argued January 19, 2018 ______________ Before: SMITH, Chief Judge, GREENAWAY, JR. , and KRAUSE, Circuit Judges. (Opinion Filed: September 4, 2019) ______________ OPINION ______________ Charles N. Curcio [ARGUED] Curcio Law Firm 3547 Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorney for Petitioner Stefanie N. Hennes [ARGUED] United States Department of Justice Office of Immigration Litigation P. O. Box 878 Ben Franklin Station Washington, DC 20044 Attorney for Respondent GREENAWAY, JR. , Circuit Judge. In plain terms, we are called to decide whether precluding a father from ever having his born - out - of - wedlock child derive citizenship through him can be squared with the equal - protection mandate of the Due Process Clause of the Fifth Amendment. In not so plain terms, under the now repealed 8 U. S. C. § 1432 (a) (2 ), a “ child ” born outside of the United States to noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents was deceased. 1 Section 1101 (c) (1) in turn defined “ child ” as including a child born out of wedlock only in so far as the child was legitimated under the “ law of the child ’ s residence or d0m(cile ” or “ the law of the father ’ s residence or domicile. .. except as otherwise provided in. .. ” § 1432. 8 U. S. C. § 1101 (c) (1 ). Section 1432 (a) (3) rounded out the triumvirate and exempted mothers of born - out - of - wedlock children from the legitimation requirement by expressly adding that “ the naturalization of the mother ” was sufficient “ if the child was born out of wedlock and the paternity of the child has not been established by legitimation. .. . ” See § 1432 (a) (3 ). As a result, § § 1101 (c) (1 ), 1432 (a) (2) and (a) (3) treated women and men differently: a naturalized mother could transmit her citizenship to her out - of - wedlock child, regardless of whether the father was alive; whereas a naturalized father in the same position had the additional requirement of having to legitimate the child in order to transmit his citizenship. Our present concern is not with this differential treatment, however. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “ is verifiable from the birth itself, ” and likewise “ the opportunity 1 That is, provided that (1) the naturalization takes place while the child is under eighteen years old, and (2) (a) the child is residing in the United States as a lawful permanent resident when the parent naturalizes or (b) thereafter begins to reside permanently while under the age of eighteen. 8 U. S. C. § 1432 (a) (4) & (5 ). 3 for the development of a relationship between citizen parent and child. .. . ” Nguyen v. INS. , 533 U. S. 53, 62, 65 (2001 ); see also Trimble v. Gordon, 430 U. S. 762, 771 (1977) (“ The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers ’ estates than that required for [those] claiming under their mo4Ters ’ estates. .. . ” (emphasis added) ). Rather, like in Trimble, the present concern is with a father being forever precluded from having his out - of - wedlock child derive through him. This problem only arises where the child ’ s mother is deceased, and the inlu avenue for legitimation under the relevant law is through the marriage of the parents. In that instance, naturalized fathers cannot transmit their citizenship to their out - of - wedlock children as a result of the interplay between § § 1101 (c) and 1432 (a) (2 ), whereas naturalized mothers can via at least § 1432 (a) (3 ). Such is the case with the petition before us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father ’ s residence or domicile — the Dominican Republic and New York — legitimation could only occur if his birth parents married. So Tineo ’ s father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son until the child was 21 years old. On the cusp of being removed from the United States as a noncitizen, Tineo brings this Fifth Amendment challenge to the relevant provisions on behalf of his now deceased naturalized father. We hold that, in this circumstance, the interplay of § § 1101 (c) (1 ), 1432 (a) (2) and (a) (3) cannot be squared with the equal - protection mandate of 4 the Due Process Clause of the Fifth Amendment. We will therefore grant Tineo ’ s petition. I. Background A. Arrival in the United States Tineo was born in the Dominican Republic on January 16, 1969. His parents, both citizens of the Dominican Republic, never married. His father, Felipe Tineo, moved to the United States and became a naturalized U. S. citizen in 1981. Two years later, his father married a legal permanent resident. Tineo came to live with his father once his birFg mother died in 1984. He was admitted to the United States as a lawful permanent resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He was 15 years old at the time and lived with his father until he turned 21 in 1990. B. Removal Proceedings Felipe Tineo died an American in 2006. The question of his son ’ s citizenship has come up on two occasions: once before his death and once after. Both were in the context of removal proceedings. This is in part because only noncitizens may be removed. See 8 U. S. C. § 1229a (a) (1 ); see also Ng Fung Ho v. White, 259 U. S. 276, 284 (1922) (“ Jurisdiction in the executive to order [removal] exists only if the person. .. is a [noncitizen ]. An assertion of U. S. ci6izenzhip is thus a denial of an essential jurisdictional fact in a [removal] proceeding. ” (internal quotation marks omitted) ) (quoted in Minasyan v. Gonzales, 401 F. 3d 1069, 1075 (9th Cir. 2005) ); Gonzalez - Alarcon v. Macias, 884 F. 3d 1266, 1272 (10th Cir. 2018) 5 (noting that citizenship constitutes the denial of an essential jurisdictional fact in a removal proceeding because only noncitizens are removable ). As a consequence, immigration judges terminate removal proceedings where the government vann(t demonstrate that a petitioner is a removable noncitizen. See 8 U. S. C. § 1229a (c) (3) (A ); 8 C. F. R. § 240. 8 (a ); see also Dessouki v. Att ’ y Gen. of U. S. , 915 F. 3d 964, 966 (3d Cir. 2019) (“ [T] he government failed to prove that Dessouki was [a noncitizen ]. So an immigration judge terminated his removal proceedings. ” ). 1. The first proceeding occurred when Tineo was convicted for the sale of a controlled substance in New York state court on October 19, 1IP3. He was issued a Notice to Appear (“ NTA ”) dated April 20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, however, because, as proof of	PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THIRD CIRCUIT No. 16-1461 _____________ JOSE FRANCISCO TINEO AKA Luis Alberto Padilla, Jose Sanchez, Petitioner v. ATTORNEY GENERAL UNITED OF AMERICA, Respondent ______________ On Petition for Review of a of the United States Department Justice Board of Appeals (A040-015-082) Immigration Judge: Walter A. Durling ______________ Argued January 19, 2018 ______________ Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges. September 4, 2019) ______________ OPINION ______________ Charles N. Curcio [ARGUED] Curcio Firm 3547 Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorney for Petitioner Stefanie N. [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box Ben Franklin Washington, DC 20044 for Respondent GREENAWAY, JR., Circuit In terms, we are called to decide whether precluding a father from ever his born-out-of-wedlock child derive citizenship through him can be squared with equal-protection mandate of the Due Process Clause of the Fifth Amendment. In not so plain terms, under the now U.S.C. § 1432(a)(2), a born outside of the States to noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents deceased.1 Section 1101(c)(1) turn defined “child” as including a born out of wedlock in so far as the child was under the “law of the child’s or domicile” or of the father’s residence or domicile . . . except otherwise provided in . . .” § 1432. U.S.C. § Section 1432(a)(3) rounded out the triumvirate and mothers of born-out-of-wedlock children from legitimation requirement by expressly adding that naturalization of the mother” was sufficient “if was born out of wedlock and the paternity of child has not been established by legitimation . . . .” See § 1432(a)(3). As a result, §§ 1101(c)(1), 1432(a)(2) and (a)(3) treated women and men differently: a naturalized mother could transmit her citizenship to her out-of-wedlock child, regardless of whether the father was alive; whereas a father in the same position had the additional requirement of having legitimate the child in order to transmit his citizenship. Our present is not with this differential treatment, however. That affirmative verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood scrutiny in the past, on the basis that the relation between a mother a child “is verifiable from the birth itself,” and likewise “the opportunity That is, provided that (1) naturalization takes place while the child is under eighteen years old, and (2) (a) the child is residing in the United States as a lawful resident when the naturalizes or (b) thereafter begins to reside permanently while under the of eighteen. 8 § 1432(a)(4) & 3 for the of a relationship between citizen parent and child . . . .” Nguyen v. INS., U.S. 53, 62, 65 (2001); see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) (“The more serious problems of proving might justify a more demanding standard for illegitimate children claiming under fathers’ estates than that required for [those] claiming under their mothers’ estates . . . .” (emphasis added)). Rather, like in Trimble, the present concern is with a father being forever precluded from having his out-of-wedlock child derive through him. problem arises where the child’s mother is deceased, and the only for under the relevant law is the marriage of the parents. In that instance, naturalized fathers cannot transmit their citizenship their out-of-wedlock children as a result of the interplay between §§ 1101(c) and 1432(a)(2), whereas naturalized mothers can via at least 1432 (a)(3). Such is the case with the petition us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who married. His father moved to the United States and naturalized. noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican and New York—legitimation could only occur if his birth parents married. So Tineo’s father was precluded from having his son derive citizenship through him, despite being a citizen and having for his son until the child was 21 years old. On the cusp of being from the United States as a Tineo brings this Fifth Amendment challenge to the provisions on behalf of his now deceased naturalized father. We hold that, in circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and (a)(3) be squared with equal-protection mandate of 4 the Due Process Clause of Fifth Amendment. We will therefore grant Tineo’s petition. I. Background A. Arrival in United States Tineo was born in the Dominican Republic on January 1969. parents, both citizens the Dominican Republic, never married. father, Tineo, moved to United States and became a naturalized U.S. citizen in 1981. years later, his father married a legal permanent Tineo came to live his father once his birth mother died in 1984. He was admitted to the United States as a lawful permanent resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He years old at the time and lived with his father until he turned 21 in 1990. B. Removal Proceedings Felipe Tineo died an American in 2006. The question of his son’s citizenship come up two occasions: before his death and once after. Both were in the context of removal proceedings. This is in part only noncitizens may be removed. See 8 U.S.C. § 1229a(a)(1); see also Ng Fung Ho v. White, 259 U.S. 276, (1922) (“Jurisdiction executive to order [removal] only if the person . . . a [noncitizen]. An assertion of citizenship is a denial of an essential jurisdictional fact in a [removal] proceeding.” (internal quotation marks (quoted in Minasyan v. Gonzales, 401 F.3d 1069, (9th Cir. 2005)); Gonzalez- Alarcon v. Macias, 884 F.3d (10th 2018) 5 (noting that citizenship constitutes the denial of an essential jurisdictional fact in removal proceeding because only are removable). As a consequence, immigration terminate removal proceedings where government cannot demonstrate that a petitioner is a removable noncitizen. 8 U.S.C. § 8 C.F.R. § 240.8(a); see also Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 966 (3d Cir. 2019) (“[T]he government failed to that Dessouki was [a So an immigration terminated his removal proceedings.”). 1. The first proceeding occurred when Tineo was convicted for the sale of a controlled substance in New York state court on October 19, 1993. He was issued Notice to Appear dated April 20, 2000 and placed in removal based on that conviction. proceeding was terminated on November 28, 2001, because, as of	pRECeDeNTIAl UNiTed staTEs Court of APPeAls fOr tHe ThIrD cIRcUiT _____________ NO. 16-1461 _____________ jOsE franCIsco tIneO AkA lUIs AlBERtO PadiLlA, AKa jOsE SancHeZ, pEtITiOnER v. AttoRnEY geneRAL UNITED sTaTES OF aMERiCA, ReSpOndENt ______________ oN peTitiOn for reVieW Of a DecisIon OF ThE UNIteD StaTes dEPaRtMeNT oF JuSTICE BOaRD Of IMmiGRaTIOn APPeALS (A040-015-082) ImmIgraTiOn jUdGe: waltER a. DurliNG ______________ aRgUeD JANUary 19, 2018 ______________ beFoRe: SMIth, chiEF JUdGE, GREEnAWay, jR., aNd KraUSE, cirCuIt judgeS. (oPInION fILeD: SePtEMber 4, 2019) ______________ opINIOn ______________ chaRlEs n. curciO [ArgUEd] CurCiO law FiRm 3547 alPIne aVEnUE nW sUItE 104 GrANd RaPIdS, MI 49544 aTToRNeY fOr petITionER STEFANie N. hENnES [argueD] UNiTeD sTATES DEpARTMEnt Of JUstICe ofFice of iMmiGRaTIon lItIgatioN p.O. BoX 878 Ben FRanKlIN STatioN waShIngtoN, Dc 20044 AttOrNeY FoR rESPONDent grEEnAWAy, JR., CIRcUit judge. iN plAIn TErms, We aRe cAllED to DeCIde wHEtHEr preCLUdinG A faTheR from eVER havINg hIS boRn-OUT-oF-wEDlOck cHIlD DerIve cITIZENShiP thrOugh HIM CAN Be SqUAred witH ThE EQUAl-pRotEcTIoN MANDatE OF ThE dUe PROCESS clAUSe OF the fifth AmendMenT. IN NoT sO pLaIN tErms, UndEr The NoW rePEAlEd 8 u.s.c. § 1432(A)(2), A “child” borN OuTSIDe of THE uNiTed StaTEs tO NONcITIZeN pArEnTs BECaME A CItIZen UpoN The nAtuRaLIZatIOn Of 2 Her SuRVIviNG PaREnT iF one OF HeR pARents WAs DEcEasEd.1 SectIOn 1101(c)(1) iN TUrn deFinED “cHIlD” as iNCLuding A CHilD boRn OUt oF wEDLock oNlY iN SO Far as THE CHiLd WaS LEgiTimAted unDER ThE “laW Of The CHILd’S rESideNCE or dOMIcILE” Or “tHE laW of tHE FaThEr’S ReSiDence or DoMiCilE . . . EXcEPt aS oThErwIsE PrOVIDeD in . . .” § 1432. 8 u.S.c. § 1101(c)(1). sEcTiON 1432(A)(3) rOUnded Out tHE TrIumviRatE aND eXEMPTeD mOTHErS oF BORN-OUt-oF-WEdlOck cHiLdReN FrOM The LegitiMatIOn REquIreMEnt BY eXpREssLY ADDinG ThAT “tHE natUralIZaTION Of thE mothER” wAS SuFFICIeNt “IF ThE ChiLd waS BoRN ouT of wEdloCk anD tHe pAtERnITy Of tHE ChILD hAS Not bEen EstaBlished by lEGitiMation . . . .” sEe § 1432(A)(3). As A reSuLt, §§ 1101(C)(1), 1432(a)(2) ANd (a)(3) tReAtED wOMen And men DifFeRENTLY: A NaturAliZeD mothEr coULD tRanSmit HER CitizENShip TO HEr OUT-OF-wEdlOCk chiLd, rEGArdLess oF WHETHer tHe FatHer WAS ALIve; whEReAs A NAtuRAliZed FatHer IN ThE saMe pOSition Had the aDdItIonAl requirement oF having to LEGItImaTe tHE chIld iN OrdEr to tranSmiT HIS CITIzENSHIP. oUR pREsEnT cONCERn is nOT wITH tHIS diFfERentIal tReAtMENt, hOWEVEr. tHat aFFiRMAtIVe STEps tO VErify PATerNity, iNCluding LEGITIMATIon, may be takeN if A CItizEn PArENt is aN uNwEd FatheR hAs wIThsTOod ConStITutIoNaL SCrUtinY In THe pAst, oN The basiS THAt the rELAtIon beTwEeN A MOTHeR anD A CHild “Is verIfIAble from tHE birtH ItSELf,” ANd liKEwise “thE oppORtUNIty 1 thaT Is, prOVidEd tHaT (1) THE NaTuraLizaTIOn tAkeS pLacE WhILe tHE ChiLD Is UNDEr eIghTeeN YEArS OLd, anD (2) (a) THe Child iS REsiDinG in tHe uNITEd StaTeS AS A lawFUl perMaNeNT residenT WHeN The PARenT NaTuRAlIzEs or (b) TheREAfTer bEGINS TO reSIde PERManeNtly WHilE UndeR the AgE of EIGHTeen. 8 U.s.C. § 1432(A)(4) & (5). 3 fOr thE DEVelOPmeNt of A rELaTIONShip BeTwEEn cITIZEN pAREnt AnD cHiLD . . . .” NgUYEN v. iNs., 533 U.s. 53, 62, 65 (2001); sEe AlSo TRimbLe V. gORDOn, 430 U.S. 762, 771 (1977) (“the moRE SERiOuS PrOblems of PRoViNG paTErnITy MIGhT juSTify A mORe dEMandiNg stanDaRD fOr IlLeGiTiMATe CHIlDrEN CLaImING UnDeR THeIR FAThers’ estAtes thAN thAt reqUIReD For [ThosE] ClAIMING uNdEr their mothErs’ EsTAteS . . . .” (eMpHASIS aDdED)). RaThEr, likE IN TRiMBLE, the PReSenT coNCern iS wiTh a FaTher BeiNG foReVeR pReCLUdEd froM HavINg HIS oUT-Of-wedlOCK ChiLd deRIVE THrOugh HIm. tHIs PRobLEm OnlY arISeS wHerE THe cHILD’s MOtHEr iS deCeAseD, and tHe only AveNUe FOR LEGitImatIoN UNdER the RELEVANT lAw is ThroUGH tHe marRIage oF thE pArENts. in ThAt InsTANCE, NaTuRALizeD FatHerS caNnOt trANSMiT THeIr cITIzenShiP To thEIR Out-oF-WedLOcK CHILdrEn as a rEsUlT of the InTErPlay bEtWEen §§ 1101(C) aNd 1432(A)(2), wheREAS NaTuRalIZED MoTHERs CAn ViA At LeasT § 1432 (a)(3). SuCH iS thE CaSe WITh tHE pEtitIoN BefORe uS. PeTitioNER jOse FrANCiSCO tiNeO WAs bORn In THE DoMInicAN REpuBLic TO uNWEd NONCITIzEN PaRenTs wHO nevEr MArrIEd. HIS FAtHEr mOVED tO the uNitED stAtES And NAturAlIZED. HIS NoNCitIzen moTHer soon AFteR pAsseD Away. At THe TIMe, UNdER tHE LAw of EiTHeR hiS oR hiS fathEr’s REsideNcE OR DomICile—tHe DomiNiCaN REPubLIC AND NEW yORk—LegITImaTiOn cOULD OnLy oCCuR if hIs BirTH pAREnts marRiED. so TInEo’S fATHER wAS FoREVER PrEcluded FRoM hAVINg HiS sOn dERIVE CitiZeNSHip tHroUgH him, DesPItE BeinG A citizeN And HavinG cARed foR hIS Son UNTIL thE chILD WAS 21 yeArS OlD. on THe cusP of BeiNG rEMOVeD FROm the unItED StATEs AS A nOncItIZen, TINEO bRINgS tHIs FiFth amenDMEnT ChAlLengE To tHE rELeVant prOvISions On BeHALF of HiS NOw dECeaSEd nAturALIzEd faTHeR. we Hold THat, iN thiS ciRcuMSTAnce, The iNtErplaY oF §§ 1101(c)(1), 1432(a)(2) aNd (A)(3) CANNoT BE sQUArEd WIth The EQUAL-PrOTEcTIon MANDATe of 4 THE dUE PRoCESs ClauSE Of tHe FiFTH amENDMENT. We wilL THeReFoRe GRAnT TinEO’S pETITion. i. bACkgRound a. aRRivaL iN THE UNiteD sTATes tINeO WaS Born IN THe dOMiNICAN RePUBlIc On JaNUArY 16, 1969. HIS ParENTs, bOTh ciTIzeNS Of THE domIniCan repUbLIc, Never mArRieD. HIs fAtheR, FeLIpE tiNeo, mOVED tO ThE UNItED sTatES aNd bECAmE a NaturalizeD U.s. cITIZen iN 1981. tWo yeARS LAteR, hIs FaTHeR marRiEd a leGAl PERMaNeNT REsiDEnt. TiNeo camE TO liVe WIth HiS faThEr onCe his birTH motHEr dIeD In 1984. hE WaS aDmiTTED TO THe UnITED staTEs AS a LAwFuL PERmanent REsIdeNt on JUnE 15, 1985, pUrSuANT To AN ALiEN RElAtive PeTitIoN fIlED By hIS sTEpmOthER. He WAS 15 YeArs oLd aT ThE TiMe and LIvED WItH HiS fathER UNTIl He TUrneD 21 in 1990. B. rEMoVal pROCeEDINGs felIPe tINeo DieD aN amERICan in 2006. THe quEsTiOn of hIS SoN’s CItiZenshIP HAS coME UP ON two OcCAsioNs: OncE bEFOre his DEATH aND oNcE afTeR. both WERE iN tHE CONTEXT OF REmoval proCeedINgS. ThiS is IN pArt BEcAUse onLY NonCITIZENS mAy be rEmOved. see 8 U.S.c. § 1229A(A)(1); sEe ALsO NG FuNG HO v. WhIte, 259 u.S. 276, 284 (1922) (“jUrISDIcTioN iN tHe EXECuTivE tO OrdeR [remOVAl] ExIstS ONLY iF The pERSon . . . Is a [NonciTIzeN]. AN AsseRtiOn oF u.S. cITIzenshIP IS tHus a DeNiAl Of aN eSsenTIaL jUriSDICtiOnaL FACT in a [ReMOVAl] PROcEEdinG.” (InterNAL qUotatiON maRkS oMittEd)) (qUOTED in MiNASyAN v. GONZalEs, 401 F.3D 1069, 1075 (9tH cIr. 2005)); gONzalEZ- AlaRcOn V. Macias, 884 f.3d 1266, 1272 (10TH Cir. 2018) 5 (NotInG ThAT CITiZENSHiP conStITuTES the dEniaL of An ESseNTiAL JuRIsdICtiOnal faCT In A REMovaL PROceeDInG beCause ONly nONciTizEnS Are RemOVaBlE). aS a cOnseqUENCe, iMMigRAtion JUDGeS terMInaTE ReMoVAl pRocEeDIngs WherE thE gOvERnMeNt caNNoT deMoNSTRATe THat a peTiTioner IS A RemoVAble nOncitiZEn. See 8 U.S.c. § 1229A(c)(3)(a); 8 c.f.r. § 240.8(A); See ALsO deSsOUkI v. AtT’y GEn. OF u.S., 915 f.3d 964, 966 (3D ciR. 2019) (“[T]hE gOVERNMeNt fAIlEd To proVe thAt DesSoUKI wAs [a nONCiTIzeN]. sO an imMigratIon jUdGe teRMiNatEd HIS REMOVAL ProceeDiNGS.”). 1. The fIRST PRoCEEdINg occURred when tINeo WaS CoNvICtED fOR tHE SaLE OF a cONtrOLLED SubstaNCe iN NeW YORk state cOURt on OcToBER 19, 1993. hE waS ISsueD A noTice TO appEar (“NTA”) DaTed apRil 20, 2000 ANd pLAced IN REmOVaL PRoCEeDInGs BAsed ON that coNVIcTiOn. tHe PROceEDINg wAs TErMInated On nOVeMbEr 28, 2001, hOWEveR, beCAUSe, AS prOOf Of	PRECEDENTIALUNITEDSTATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-1461 _____________ JOSE FRANCISCOTINEO AKA Luis Alberto Padilla, AKAJose Sanchez,Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________On Petition for Reviewof a Decision of the United States Department of JusticeBoard of Immigration Appeals (A040-015-082) Immigration Judge: Walter A. Durling ______________ ArguedJanuary 19, 2018 ______________Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges. (Opinion Filed: September 4, 2019) ______________ OPINION ______________ Charles N. Curcio [ARGUED] Curcio Law Firm 3547 Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorneyfor Petitioner Stefanie N. Hennes [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box878 BenFranklin Station Washington, DC 20044 Attorney for Respondent GREENAWAY, JR., CircuitJudge. In plain terms, we are called to decide whether precluding a fatherfrom ever having his born-out-of-wedlock childderivecitizenship through him can be squared with the equal-protection mandate ofthe Due Process Clause oftheFifth Amendment. In not so plain terms, underthe now repealed 8 U.S.C. § 1432(a)(2), a “child”born outsideof theUnited Statesto noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents wasdeceased.1 Section 1101(c)(1)in turn defined“child” as including a childbornout of wedlockonly in sofar as the child was legitimated under the “lawof the child’s residence or domicile” or “the law of thefather’s residence or domicile . . .except as otherwise provided in . . .” § 1432.8 U.S.C.§ 1101(c)(1). Section 1432(a)(3) rounded out the triumvirate and exempted mothers of born-out-of-wedlockchildren from the legitimation requirement byexpresslyadding that“the naturalizationofthe mother” was sufficient “if the child wasborn out ofwedlock and the paternity ofthe child has not been established by legitimation . . . .” See§ 1432(a)(3). As a result,§§ 1101(c)(1),1432(a)(2) and (a)(3) treated women and men differently: a naturalized mothercould transmit hercitizenship toher out-of-wedlock child, regardlessof whether the father was alive; whereas a naturalized father in the same positionhad the additionalrequirementof having to legitimate the child in order to transmit his citizenship. Our present concernis not with this differentialtreatment, however.That affirmative steps to verifypaternity, including legitimation, may be taken if a citizen parentis an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “is verifiable from the birth itself,” and likewise “the opportunity1 That is, provided that (1) the naturalization takesplace while the child is under eighteen years old, and (2) (a) the child is residing in the United States as alawful permanent resident when the parent naturalizes or (b)thereafter begins to reside permanently while under the age of eighteen. 8 U.S.C. § 1432(a)(4) & (5). 3 forthe development of a relationship between citizen parent and child . . . .” Nguyen v. INS., 533 U.S. 53, 62, 65 (2001); see also Trimble v. Gordon, 430 U.S. 762,771 (1977) (“The moreserious problemsof proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estatesthan that required for [those] claiming under their mothers’ estates . .. .” (emphasis added)). Rather, like in Trimble, the present concern is with a fatherbeing foreverprecluded from having his out-of-wedlock childderivethrough him. Thisproblem onlyarises where the child’s mother is deceased, and the only avenue for legitimation under the relevant law is through the marriage of the parents.In that instance, naturalized fathers cannot transmit their citizenship totheir out-of-wedlock children as a result of the interplay between §§1101(c) and 1432(a)(2), whereas naturalized mothers can via at least § 1432 (a)(3).Such is the casewith the petition before us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At thetime, under the law of either his or his father’s residence or domicile—the Dominican Republic andNew York—legitimation couldonly occur if his birth parents married.SoTineo’s father was forever precluded fromhaving his son derive citizenship through him,despite being a citizen and having cared forhisson until the child was 21 yearsold. On the cusp of being removed from the United States as a noncitizen, Tineobrings this Fifth Amendment challenge to the relevant provisions on behalf of his now deceasednaturalized father. We hold that, in this circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and (a)(3) cannotbe squaredwith the equal-protection mandate of4 the Due Process Clause of the Fifth Amendment. We will therefore grant Tineo’s petition. I. Background A. Arrival in the UnitedStates Tineo was born in the DominicanRepublicon January16,1969. His parents,both citizens of the DominicanRepublic, never married. His father, Felipe Tineo, moved to the United States and became anaturalized U.S. citizen in 1981. Two years later,his father married alegal permanentresident. Tineo came to live with his father once his birth mother died in1984. He was admitted tothe United States as a lawful permanent resident on June15, 1985, pursuant to an alien relativepetition filed by hisstepmother. He was 15 years old atthe time and lived with his father until he turned 21 in 1990. B. Removal Proceedings Felipe Tineo diedan American in 2006. The question of his son’s citizenship has come up on two occasions:once before his death and onceafter. Both were inthecontext of removal proceedings. This is in part because onlynoncitizens maybe removed. See 8 U.S.C.§1229a(a)(1);see alsoNg Fung Ho v. White, 259U.S. 276, 284(1922) (“Jurisdiction in theexecutive to order [removal] exists only if the person .. . is a [noncitizen]. An assertion of U.S.citizenship is thus a denial ofan essential jurisdictional fact in a [removal] proceeding.” (internal quotation marks omitted)) (quoted in Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005)); Gonzalez- Alarcon v. Macias, 884 F.3d1266, 1272 (10th Cir. 2018) 5(noting that citizenship constitutes the denial of an essential jurisdictional fact ina removal proceeding because only noncitizens areremovable). As a consequence, immigration judges terminate removal proceedings where the government cannotdemonstrate that a petitioner is a removable noncitizen. See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R.§ 240.8(a);see also Dessouki v. Att’y Gen. ofU.S., 915 F.3d 964, 966 (3d Cir. 2019) (“[T]he government failedto prove that Dessouki was [a noncitizen]. Soan immigration judge terminated his removalproceedings.”). 1. The first proceeding occurred when Tineowas convicted for the sale ofacontrolled substance in New York state court on October19,1993. Hewas issued a Notice to Appear (“NTA”)dated April20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, however, because, as proof of	PRECEDENTIAL UNITED STATES COURT OF APPEALS _FOR_ THE _THIRD_ CIRCUIT _____________ No. _16-1461_ _____________ JOSE FRANCISCO TINEO _AKA_ Luis Alberto Padilla, AKA Jose Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES _OF_ AMERICA, Respondent ______________ On Petition for Review _of_ a Decision of _the_ _United_ States Department of Justice Board of Immigration Appeals (A040-015-082) Immigration Judge: Walter _A._ Durling ______________ Argued _January_ 19, 2018 ______________ Before: SMITH, Chief Judge, _GREENAWAY,_ JR., _and_ KRAUSE, _Circuit_ Judges. (Opinion Filed: September _4,_ 2019) ______________ OPINION ________________ Charles N. _Curcio_ [ARGUED] _Curcio_ Law _Firm_ _3547_ Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorney for Petitioner Stefanie N. _Hennes_ [ARGUED] United States Department of _Justice_ _Office_ of Immigration Litigation P.O. _Box_ _878_ _Ben_ Franklin Station Washington, DC 20044 _Attorney_ _for_ Respondent GREENAWAY, JR., Circuit _Judge._ In _plain_ terms, we _are_ called to decide whether _precluding_ a father from _ever_ _having_ his born-out-of-wedlock child _derive_ _citizenship_ through him can be _squared_ with the equal-protection mandate of the Due Process Clause of the Fifth Amendment. _In_ not _so_ plain terms, under the _now_ repealed _8_ U.S.C. § 1432(a)(2), a _“child”_ _born_ _outside_ of _the_ United States to noncitizen _parents_ became a citizen upon the naturalization _of_ 2 her surviving parent if _one_ of her parents was _deceased.1_ Section 1101(c)(1) in _turn_ defined “child” _as_ including a _child_ born out of _wedlock_ only in _so_ far _as_ the child was legitimated under the “law of the child’s residence or domicile” or “the law of the father’s residence or _domicile_ _._ . _._ except as otherwise provided in . . .” § 1432. 8 _U.S.C._ § 1101(c)(1). Section 1432(a)(3) _rounded_ out the triumvirate and exempted mothers _of_ _born-out-of-wedlock_ children from the _legitimation_ _requirement_ _by_ expressly _adding_ that “the _naturalization_ of the mother” was sufficient _“if_ _the_ child was _born_ _out_ of wedlock and the paternity of the child has not been established by legitimation . _._ . _.”_ See § 1432(a)(3). As a result, §§ _1101(c)(1),_ 1432(a)(2) _and_ (a)(3) treated _women_ and _men_ _differently:_ a naturalized _mother_ could transmit her citizenship to her out-of-wedlock child, regardless of whether the father _was_ alive; whereas _a_ naturalized father in the same _position_ had the additional requirement of having _to_ legitimate the child in order to transmit his citizenship. _Our_ present concern _is_ not with this differential treatment, however. That affirmative _steps_ to _verify_ paternity, including legitimation, may _be_ taken _if_ a _citizen_ parent is an unwed father has withstood constitutional scrutiny in _the_ past, _on_ the basis that the relation between a _mother_ and _a_ child “is verifiable _from_ the _birth_ itself,” _and_ likewise “the opportunity _1_ That is, provided _that_ (1) the naturalization takes place while the _child_ is _under_ eighteen years old, and (2) (a) the child _is_ residing in the United States as a lawful permanent resident when the parent naturalizes or (b) thereafter begins to reside permanently while under the _age_ of eighteen. 8 U.S.C. § _1432(a)(4)_ & (5). 3 for the development of a relationship between citizen parent _and_ child . _._ _._ .” Nguyen v. INS., 533 _U.S._ 53, 62, _65_ _(2001);_ see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) (“The more _serious_ problems _of_ proving paternity _might_ justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required for [those] claiming _under_ their mothers’ estates . . . .” (emphasis added)). Rather, _like_ in Trimble, the present _concern_ is with a father _being_ forever _precluded_ from having his out-of-wedlock child derive through him. This problem only arises where the _child’s_ mother is deceased, and the only avenue for legitimation _under_ the _relevant_ _law_ is through the marriage _of_ the _parents._ _In_ that instance, _naturalized_ fathers cannot transmit _their_ _citizenship_ to their out-of-wedlock children as a result of the interplay _between_ _§§_ 1101(c) _and_ 1432(a)(2), whereas _naturalized_ mothers can via _at_ least § _1432_ (a)(3). _Such_ is the case with the petition before us. _Petitioner_ Jose _Francisco_ Tineo _was_ born _in_ the Dominican Republic to unwed noncitizen parents who never married. His father moved _to_ the United _States_ _and_ naturalized. His noncitizen mother _soon_ after passed away. At the _time,_ under _the_ _law_ of either his or _his_ _father’s_ residence or domicile—the Dominican Republic and New York—legitimation _could_ only _occur_ if his birth parents _married._ So Tineo’s father was forever precluded from having his son derive citizenship _through_ him, despite being a citizen and having cared for his _son_ _until_ the child _was_ _21_ years old. On _the_ _cusp_ of being removed from _the_ United States as _a_ noncitizen, Tineo brings this Fifth Amendment _challenge_ to the relevant provisions on behalf of his now _deceased_ naturalized father. We hold that, _in_ this circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and (a)(3) _cannot_ be squared with the equal-protection mandate of 4 _the_ Due Process Clause _of_ the Fifth _Amendment._ We will therefore grant _Tineo’s_ petition. I. Background A. Arrival in the United States _Tineo_ was born in _the_ Dominican Republic on January 16, 1969. _His_ parents, both citizens of _the_ Dominican _Republic,_ never married. _His_ father, Felipe _Tineo,_ moved to the United States and _became_ a naturalized U.S. citizen in 1981. _Two_ years later, _his_ father married _a_ legal permanent resident. Tineo came to live _with_ _his_ father once his birth _mother_ died in _1984._ _He_ was _admitted_ to the _United_ States as a lawful _permanent_ resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He _was_ 15 years _old_ at _the_ time and lived with his _father_ until he turned 21 in 1990. B. Removal Proceedings Felipe Tineo died an American _in_ 2006. The question of his son’s _citizenship_ has come up on two occasions: once before his death and once _after._ Both were in the context _of_ _removal_ proceedings. This is in part because only noncitizens _may_ be removed. _See_ 8 _U.S.C._ § 1229a(a)(1); see also _Ng_ Fung _Ho_ v. White, _259_ U.S. 276, 284 (1922) _(“Jurisdiction_ in the executive to order [removal] exists only _if_ the person _._ . . is a [noncitizen]. An assertion of _U.S._ citizenship is thus a denial of _an_ essential jurisdictional fact in a [removal] proceeding.” (internal quotation marks omitted)) _(quoted_ _in_ Minasyan _v._ Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005)); _Gonzalez-_ Alarcon v. Macias, 884 _F.3d_ _1266,_ 1272 (10th Cir. 2018) _5_ (noting that citizenship constitutes the denial _of_ an essential jurisdictional fact in a removal proceeding because _only_ noncitizens are removable). As a consequence, immigration judges _terminate_ _removal_ _proceedings_ where _the_ government _cannot_ demonstrate _that_ a petitioner is a removable noncitizen. See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § _240.8(a);_ _see_ also Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 966 (3d Cir. 2019) (“[T]he government _failed_ to prove that Dessouki was [a noncitizen]. So an immigration _judge_ terminated _his_ removal proceedings.”). _1._ _The_ first proceeding occurred _when_ Tineo _was_ convicted for _the_ _sale_ _of_ _a_ controlled substance in New York _state_ _court_ on October _19,_ _1993._ _He_ was _issued_ a Notice to _Appear_ (“NTA”) dated April 20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, _however,_ because, as proof of
832 F.Supp. 209 (1993) Suella DEBOLT, et al., Plaintiffs, v. Mike ESPY, Secretary, U.S. Department of Agriculture, et al., Defendants. No. C2-91-157. United States District Court, S.D. Ohio, E.D. July 18, 1993. 210 211 Sandra A. Scott, Southeastern Ohio Legal Service, Zanesville, OH, Gary Michael Smith, Southeastern Ohio Legal Service, New Philadelphia, OH, for Suella Debolt. Sylvia T. Kaser, U.S. Dept. of Justice, Chief, Special Litigation Section, Washington, DC, O. Charles Hosterman, U.S. Atty., Columbus, OH, for all other defendants. James D. Thomas, Robert L. Hust, Squire, Sanders and Dempsey, Columbus, OH, for Woodrose Ltd. MEMORANDUM AND ORDER BECKWITH, District Judge. Background This case is currently before the Court to consider several motions filed by the parties in this action. This matter arose when Suella Debolt filed a complaint against two private Defendants, the owner and management company of the housing project in which she resided, and against several federal Defendants, the Secretary of Agriculture, and the Administrator, State Director, and a District Director of the Farmers Home Administration (hereinafter the "FmHA"). Following their settlement with the Plaintiff, the private Defendants were dismissed from this case in February of 1992. In her complaint, the Plaintiff contends that the FmHA's occupancy limits combined with the agency's administration of the Rural Rental Housing program produce a discriminatory impact on families with children. Beginning in 1986, Ms. Debolt resided in the Village Green Apartments, a "Section 515" project. The FmHA administers a program called the Rural Rental Housing program or Section 515 program. Under Section 515, the FmHA administers the Section 515 program through loan programs and through project operations. The loan programs aid in the construction of rental housing for very low, low, or moderate income persons or families residing in rural areas experiencing a shortage of adequate housing. 42 U.S.C. § 1485. Ms. Debolt's lease contained a provision that limited the number of occupants in her apartment to four persons. In 1991, when Ms. Debolt gave birth to a fourth child, she was in violation of the lease's four person occupancy limit. Accordingly, the management of the Village Green Apartments notified Ms. Debolt that she was required to move at the end of her lease term. However, as part of the settlement of the eviction action pending against her, Ms. Debolt stayed in her apartment for an additional year. Later, in December of 1991, Ms. Debolt had a fifth child and she was unable to find a larger unit in FmHA's Rural Rental Housing Program, so she moved in with relatives. On September 30, 1992, this Court granted the Plaintiffs' motion to certify this matter as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Accordingly, the Plaintiff class has been certified as: 212 all persons who either are or would be eligible to reside, or to continue to reside within a project financed under FmHA's Section 515 Rural Rental Housing Program, but for the fact that their family size exceeds that permitted to reside in a two bedroom apartment under FmHA's occupancy standards. The Plaintiffs' First Amended Complaint pleads a class action challenging the promulgation and enforcement of an FmHA regulation, 7 C.F.R. § 1944.553, as conflicting with 42 U.S.C. §§ 1471, 1480, and 1485. The Plaintiffs argue that § 1944.553 was promulgated in violation of the Administrative Procedure Act (hereinafter the "APA"). The Plaintiffs also argue that the Defendants improperly administer the Section 515 programs in the State of Ohio. The Plaintiffs assert that the Defendants have a duty to review and disapprove non-complying termination notices to tenants, but that they have failed to do so. The Plaintiffs also assert that the Defendants have approved a model rental agreement which does not provide for a yearly rental term. The Plaintiffs also allege that these federal officials failed to administer the Section 515 program to meet the needs of eligible families. The Plaintiffs specifically assert that this improper administration arbitrarily and unlawfully denies or terminates eligibility for financially eligible tenants and applicant families needing more than two bedrooms under FmHA's restrictive occupancy limits. The Plaintiffs further allege that these occupancy limits, along with the Defendants' improper administration, produce a discriminatory and unlawful disparate impact upon families with children, in violation of the Fair Housing Act. The Federal Defendants' Motion for Judgment on the Pleadings The federal Defendants have filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In their motion, the federal Defendants assert that this Court is without jurisdiction to adjudicate the Plaintiffs' claims, except for those claims contained in Count 5 of the Plaintiffs' complaint. The federal Defendants first contend that Counts 3, 4, 6, 7, 8, 9, and 10 are barred by the doctrine of sovereign immunity. The federal Defendants also contend that the Plaintiffs have no private right of action under either the United States Housing Act of 1949 (hereinafter "USHA") or the Fair Housing Act, if sovereign immunity has been waived. The federal Defendants finally argue that the Plaintiffs lack standing to assert their claims that FmHA must finance rental housing units of a particular size. However, the Plaintiffs argue that their claims are not barred by the doctrine of sovereign immunity as the law is allegedly well settled that statutory and constitutional claims for equitable relief are not barred by sovereign immunity. Also, the Plaintiffs argue that their claims for individual damages and attorney fees under Title VIII are not barred by sovereign immunity, since such immunity was waived by Congress. Under the Administrative Procedure Act, Title 5 Section 702 provides, in part: ... An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. Thus, Section 702[1] of the APA acts to waive sovereign immunity for the Plaintiffs' USHA and constitutional claims. However, in their complaint, the Plaintiffs have only asserted one of their eight remaining claims under the APA. After a careful review of the authorities and arguments advanced by the parties in their memoranda, 213 this Court finds that it agrees with the federal Defendants that all of the Plaintiffs' claims should be asserted under the APA. Accordingly, the next question is whether the Plaintiffs should be given leave to amend their complaint to assert their claims under the APA. The federal Defendants argue that the Plaintiffs should not be given leave to amend their complaint in this case to invoke the Administrative Procedure Act, since the litigation has been pending for more two years. However, the Court notes that the federal Defendants did not raise this issue until they filed this motion for judgment on the pleadings. The first mention of this issue was contained in the federal Defendants' motion for judgment on the pleadings which was filed almost two years after the institution of the case. The Court first notes the rationale expressed by Judge Whipple of the Western District of Missouri in the case of Tinsley v. Kemp, 750 F.Supp. 1001 (W.D.Mo.1990). In Tinsley, Judge Whipple stated, in part: The intent of the complaint is obvious, so the amendment would be almost a formality. Nevertheless, plaintiffs' basis for bringing civil rights claims against a federal agency should be established explicitly in their complaint. Accordingly, leave will be granted to amend the complaint. Id. at 1010. In another case, Judge Haight of the Southern District of New York allowed plaintiffs to amend their complaint to invoke the Administrative Procedure Act. Almonte v. Pierce, 666 F.Supp. 517, 524-5 (S.D.N.Y. 1987). In Almonte, Judge Haight noted that the case was at the early stage of litigation and that the federal Defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amend their complaint. Id. at 525. In this case, the federal Defendants have not established that any specific prejudice would result from allowing the Plaintiffs to amend their complaint at this late date. The federal Defendants do allege that "voluminous" discovery has occurred in this case, although they do not allege how a technical amendment to the Plaintiffs' complaint would affect whatever discovery has already occurred in this case. The Court simply can not infer that prejudice would result from an amendment which is "almost a formality." See, 750 F.Supp. at 1010. Moreover, Rule 15(a) of the Federal Rules of Civil Procedure provides that "leave [to amend] shall be freely given when justice so requires." As in Tinsley, the Plaintiffs' intent as expressed by their complaint is evident, and the amendment in this case is thus a mere formality. Under the circumstances presented by this case, the Court finds that justice mandates that the Plaintiffs be given leave to amend their complaint. The Court hereby DEEMS the Plaintiffs' complaint to be amended so that their claims are now asserted under the Administrative Procedure Act. The federal Defendants' motion for judgment on the pleadings is hereby DENIED.[2] The Motions for Summary Judgment Standard of Review Rule 56(c) of the Federal Rules of Civil Procedure provides: [Summary judgment] ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with	832 f. supp. 209 ( 1993 ) suella debolt, et al., plaintiffs, v. mike espy, secretary, u. s. department of agriculture, et al., defendants. no. c2 - 91 - 157. united states district court, s. d. ohio, e. d. july 18, 2009. * 210 * 211 sandra a. smith, southeastern ohio legal service, zanesville, oh, gary michael smith, southeastern ohio bar service, new philadelphia, oh, for suella debolt. sylvia t. kaser, u. s. dept. of justice, chief, special litigation section, washington, dc, o. charles hosterman, u. s. atty., columbus, oh, for all other defendants. james d. thomas, robert l. hust, squire, sanders and dempsey, cleveland, oh, for woodrose ltd. memorandum and order beckwith, district judge. background this case is currently before the court to consider several motions filed for the parties in this action. this matter arose when suella debolt filed a complaint against two private defendants, the owner and management company of the housing project in which she resided, and against several federal defendants, the secretary of agriculture, and the administrator, state director, and a district director of the farmers home administration ( hereinafter the " fmha " ). following their settlement with the plaintiff, the private defendants were dismissed from this case in february of 1992. in the complaint, the plaintiff contends that the fmha ' s occupancy limits combined with the agency ' s administration of the rural rental housing program produce a discriminatory impact on families with children. beginning in 1986, ms. debolt resided in the village green apartments, a " section 515 " project. today fmha administers a program called the rural rental housing program or section 515 program. under section 515, the fmha administers the section 515 program through loan programs and through project operations. the loan programs aid in the construction of rental housing for very low, low, or moderate income persons or families housed in rural areas experiencing a burden of adequate housing. 42 u. s. c. § 1485. ms. thomas ' s lease contained a provision that limited the number of occupants in her apartment to four persons. in 1991, when ms. debolt gave birth to a fourth child, she was in violation of the lease ' s four person occupancy limit. accordingly, the management of the village green apartments notified ms. debolt that she was required to move at the end of her lease term. however, as part of the settlement of the eviction action pending against her, ms. debolt stayed in her apartment for an additional year. later, in december of 1991, ms. debolt had a fifth child and she was unable to find a larger unit in fmha ' s rural rental housing program, so she moved in with relatives. on september 30, 1992, this court granted the plaintiffs ' motion to certify this matter as a class action pursuant to rule 23 of the federal rules of civil procedure. accordingly, the plaintiff class has been certified as : * 212 all persons who either are or would be eligible to reside, or to continue to reside within a project financed under fmha ' s section 515 rural rental housing program, but for the fact that their family size exceeds that permitted to reside in a two bedroom apartment under fmha ' s occupancy standards. the plaintiffs ' first amended complaint pleads a class action challenging the promulgation and enforcement of an fmha regulation, 7 c. f. r. § 1944. 553, as conflicting with 42 u. s. c. § § 1471, 1480, and 1485. the plaintiffs argue that § 1944. 553 was promulgated in violation of the administrative procedure act ( hereinafter the " apa " ). the plaintiffs also argue that the defendants improperly administer the section 515 programs in the state of ohio. the plaintiffs assert that the defendants have a duty to review and disapprove non - complying termination notices to tenants, but that they have failed to do so. the plaintiffs also assert that the defendants have approved a model rental agreement which does not provide for a yearly rental term. the plaintiffs also allege that these federal officials failed to administer the section 515 program to meet the needs of eligible families. the plaintiffs specifically assert that this improper administration arbitrarily and unlawfully denies or terminates eligibility for financially eligible tenants and applicant families needing more than two bedrooms under fmha ' s restrictive occupancy limits. the plaintiffs further allege that these occupancy limits, along with the defendants ' improper administration, produce a discriminatory and unlawful disparate impact upon families with children, in violation of the fair housing act. the federal defendants ' motion for judgment on the pleadings the federal defendants have filed a motion for judgment on the pleadings pursuant to rule 12 ( c ) of the federal rules of civil procedure. in their motion, the federal defendants assert that this court is without jurisdiction to adjudicate the plaintiffs ' claims, except for those claims contained in count 5 of the plaintiffs ' complaint. the federal defendants first contend that counts 3, 4, 6, 7, 8, 9, and 10 are barred by the doctrine of sovereign immunity. the federal defendants also contend that the plaintiffs have no private right of action under either the united states housing act of 1949 ( hereinafter " usha " ) or the fair housing act, if sovereign immunity has been waived. the federal defendants finally argue that the plaintiffs lack standing to assert their claims that fmha must finance rental housing units of a particular size. however, the plaintiffs argue that their claims are not barred by the doctrine of sovereign immunity as the law is allegedly well settled that statutory and constitutional claims for equitable relief are not barred by sovereign immunity. also, the plaintiffs argue that their claims for individual damages and attorney fees under title viii are not barred by sovereign immunity, since such immunity was waived by congress. under the administrative procedure act, title 5 section 702 provides, in part :... an action in a court of the united states seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the united states or that the united states is an indispensable party. thus, section 702 [ 1 ] of the apa acts to waive sovereign immunity for the plaintiffs ' usha and constitutional claims. however, in their complaint, the plaintiffs have only asserted one of their eight remaining claims under the apa. after a careful review of the authorities and arguments advanced by the parties in their memoranda, * 213 this court finds that it agrees with the federal defendants that all of the plaintiffs ' claims should be asserted under the apa. accordingly, the next question is whether the plaintiffs should be given leave to amend their complaint to assert their claims under the apa. the federal defendants argue that the plaintiffs should not be given leave to amend their complaint in this case to invoke the administrative procedure act, since the litigation has been pending for more two years. however, the court notes that the federal defendants did not raise this issue until they filed this motion for judgment on the pleadings. the first mention of this issue was contained in the federal defendants ' motion for judgment on the pleadings which was filed almost two years after the institution of the case. the court first notes the rationale expressed by judge whipple of the western district of missouri in the case of tinsley v. kemp, 750 f. supp. 1001 ( w. d. mo. 1990 ). in tinsley, judge whipple stated, in part : the intent of the complaint is obvious, so the amendment would be almost a formality. nevertheless, plaintiffs ' basis for bringing civil rights claims against a federal agency should be established explicitly in their complaint. accordingly, leave will be granted to amend the complaint. id. at 1010. in another case, judge haight of the southern district of new york allowed plaintiffs to amend their complaint to invoke the administrative procedure act. almonte v. pierce, 666 f. supp. 517, 524 - 5 ( s. d. n. y. 1987 ). in almonte, judge haight noted that the case was at the early stage of litigation and that the federal defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amend their complaint. id. at 525. in this case, the federal defendants have not established that any specific prejudice would result from allowing the plaintiffs to amend their complaint at this late date. the federal defendants do allege that " voluminous " discovery has occurred in this case, although they do not allege how a technical amendment to the plaintiffs ' complaint would affect whatever discovery has already occurred in this case. the court simply can not infer that prejudice would result from an amendment which is " almost a formality. " see, 750 f. supp. at 1010. moreover, rule 15 ( a ) of the federal rules of civil procedure provides that " leave [ to amend ] shall be freely given when justice so requires. " as in tinsley, the plaintiffs ' intent as expressed by their complaint is evident, and the amendment in this case is thus a mere formality. under the circumstances presented by this case, the court finds that justice mandates that the plaintiffs be given leave to amend their complaint. the court hereby deems the plaintiffs ' complaint to be amended so that their claims are now asserted under the administrative procedure act. the federal defendants ' motion for judgment on the pleadings is hereby denied. [ 2 ] the motions for summary judgment standard of review rule 56 ( c ) of the federal rules of civil procedure provides : [ summary judgment ]... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with	832 F. Supp. 209 (1993) Suella DEBOLT, et al. , Plaintiffs, v. Mike ESPY, Secretary, U. S. Department of Agriculture, et al. , Defendants. No. C2 - 91 - 157. United States District Court, S. D. Ohio, E. D. July 18, 1993. * 210 * 211 Sandra A. Scott, Southeastern Ohio Legal Service, Zanesville, OH, Gary Michael Smith, Southeastern Ohio Legal Service, New Philadelphia, OH, for Suella Debolt. Sylvia T. Kaser, U. S. Dept. of Justice, Chief, Special Litigation Section, Washington, DC, O. Charles Hosterman, U. S. Atty. , Columbus, OH, for all other defendants. James D. Thomas, Robert L. Hust, Squire, Sanders and Dempsey, Columbus, OH, for Woodrose Ltd. MEMORANDUM AND ORDER BECKWITH, District Judge. Background This case is currently before the Court to consider several motions filed by the parties in this action. This matter arose when Suella Debolt filed a complaint against two private Defendants, the owner and management company of the housing project in which she reciRed, and against several federal Defendants, the Secretary of Agriculture, and the Administrator, State Director, and a District Director of the Farmers Home Administration (hereinafter the " FmHA " ). Following their settlement with the Plaintiff, the private Defendants were dismissed from this case in February of 1992. In her complaint, the Plaintiff contends that the FmHA ' s occupancy limits combined with the agency ' s administration of the Rural Rental Housing program produce a discriminatory impact on families with children. Beginning in 1986, Ms. Debolt resided in the Village Green Apartments, a " Section 515 " project. The FmHA administers a program called the Rural Rental Housing program or Section 515 program. Under Section 515, the FmHA administers the Section 515 program through poam programs and through project operations. The loan programs aid in the construction of rental h0uding for very low, low, or moderate income persons or families residing in rural arexx experiencing a shortage of adequate housing. 42 U. S. C. § 1485. Ms. Debolt ' s lease contained a provision that limited the number of occupants in her apartment to four persons. In 1991, when Ms. Debolt gave birth to a fourth child, she was in violation of the lease ' s four person occupancy limit. Accordingly, the management of the Village Green Apartments notified Ms. Debolt that she was required to move at the end of her lease term. However, as part of the settlement of the eviction action pending against her, Ms. Debolt stayed in her apartment for an additional year. Later, in December of 1991, Ms. Debolt had a fifth child and she was unable to find a larger unit in FmHA ' s Rural Rental Housing Program, so she moved in with relatives. On September 30, 1992, this Court granted the Plaintiffs ' motion to certify this matter as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Accordingly, the Plaintiff class has been certified as: * 212 all persons who either are or would be eligible to reside, or to continue to reside within a project financed under FmHA ' s Section 515 Rural Rental Housing Program, but for the fact that their family size exceeds that permitted to reside in a two bedroom apartment under FmHA ' s occupancy standards. The Plaintiffs ' First Amended Complaint pleads a class action challenging the promulgation and enforcement of an FmHA regulation, 7 C. F. R. § 1944. 553, as conflicting with 42 U. S. C. § § 1471, 1480, and 1485. The Plaintiffs argue that § 1944. 553 was promulgated in violation of the Administrative Procedure Act (hereinafter the " APA " ). The Plaintiffs also argue that the Defendants improperly administer the Section 515 programs in the State of Ohio. The Plaintiffs assert that the Defendants have a duty to review and disapprove non - complying termination notices to tenants, but that they have failed to do so. The Plaintiffs also assert that the Defendants have approved a model rental agreement which does not provide for a yearly rental term. The Plaintiffs also allege that these federal officials failed to administer the Section 515 program to meet the needs of eligible families. The Plaintiffs specifically assert that this improper administration arbitrarily and unlawfully denies or terminates eligibility for financially eligible tenants and applicant families needing more than two bedrooms under FmHA ' s restrictive occupancy limits. The Plaintiffs further allege that these occupancy limits, along with the Defendants ' improper administration, produce a discriminatory and unlawful disparate impact upon families with children, in violation of the Fair Housing Act. The Federal Defendants ' Motion for Judgment on the Pleadings The federal Defendants have filed a motPn for judgment on the pleadings pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure. In their motion, the federal Defendants assert that this Court is without jurisdiction to adjudicate the Plaintiffs ' claims, except for those claims contained in Count 5 of the Plaintiffs ' complaint. The federal Defendants first contend that Counts 3, 4, 6, 7, 8, 9, and 10 are HaTred by the doctrine of sovereign immunity. The federal Defendants also contend that the Plaintiffs have no private right of action under either the United States Housing Act of 1949 (hereinafter " USHA ") or the Fair Housing Act, if sovereign immunity has been waived. The federal Defendants finally argue that the Plaintiffs lack standing to assert their claims tya4 FmHA must finance rental housing units of a particular size. However, the Plaintiffs argue that their claims are not barred by the doctrine of sovereign immunity as the law is allegedly well settled that statutory and constitutional claims for equitable relief are not barred by sovereign immunity. Also, the Plaintiffs argue that their claims for individual damages and attorney fees under Title VIII are not barred by sovereign immunity, since such immunity was waived by Congress. Under the Administrative Procedure Act, Title 5 Section 702 provides, in part: .. . An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. Thus, Section 702 [1] of the APA acts to waive sovereign immunity for the Plaintiffs ' USHA and constitutional claims. However, in their complaint, the Plaintiffs have only asserted one of their eight remaining claims under the APA. After a careful review of the authorities and arguments advanced by the parties in their memoranda, 213 this Court finds that it agrees with the federal Defendants that all of the Plaintiffs ' claims should be asserted under the APA. Accordingly, the next question is whether the Plaintiffs should be given leave to amend their complaint to assert their claims under the APA. The federal Defendants argue that the Plaintiffs should not be given leave to amWmd their complaint in this case to invoke the Administrative Procedure Act, since the litigation has been pending for more two years. However, the Court notes that the federal Defendants did not raise this issue until they filed this motion for judgment on the pleadings. The first mention of this issue was contained in the federal Defendants ' motion for judgment on the pleadings which was filed almost two years after the institution of the case. The Court first notes the rationale expressed by Judge Whipple of the Western District of Missouri in the case of Tinsley v. Kemp, 750 F. Supp. 1001 (W. D. Mo. 1990 ). In Tinsley, Judge Whipple stated, in part: The intent of the complaint is obvious, so the amendment would be almost a formality. Nevertheless, plaintiffs ' basis for bringing civil rights claims against a federal agency should be established explicitly in their complaint. Accordingly, leave will be gEwnted to amend the complaint. Id. at 1010. In another case, Judge Haight of the Southern District of New York allowed plaintiffs to amend their complaint to invoke the Administrative Procedure Act. Almonte v. Pierce, 666 F. Supp. 517, 524 - 5 (S. D. N. Y. 1987 ). In Almonte, Judge Haight Jotex that the case was at the early stage of litigation and that the federal Defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amend their complaint. Id. at 525. In this case, the federal Defendants have not established that any specific prejudice would result from allowing the Plaintiffs to amend their complaint at this late date. The federal Defendants do allege that " voluminous " discovery has occurred in this case, although they do not allege how a technical amendment to the Plaintiffs ' complaint would affect whatever discovery has already occurred in this case. The Court simply can not infer that prejudice would result from an amendment which is " almost a formality. " See, 750 F. Supp. at 1010. Moreover, Rule 15 (a) of the Federal Rules of Civil Procedure provides that " leave [to amend] shall be freely given when justice so requires. " As in Tinsley, the Plaintiffs ' intent as expressed by their complaint is evident, and the amendment in this case is thus a mere formality. Under the circumstances presented by this case, the Court finds that justice mandates that the Plaintiffs be given leave to amend their complaint. The Court hereby DEEMS the Plaintiffs ' complaint to be amended so that their claims are now asserted under the Administrative Procedure Act. The federal Defendants ' motion for judgment on the pleadings is hereby DENIED. [2] The Motions for Summary Judgment Standard of Review Rule 56 (c) of the Federal Rules of Civil Procedure provides: [Summary judgment ]. .. shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with	832 F.Supp. 209 (1993) Suella DEBOLT, et al., Plaintiffs, v. Mike ESPY, Secretary, U.S. Department Agriculture, et al., Defendants. No. C2-91-157. United States District Court, S.D. E.D. July 18, 1993. 210 211 Sandra A. Scott, Southeastern Ohio Legal Service, Zanesville, OH, Gary Michael Smith, Southeastern Legal Service, New Philadelphia, OH, for Suella Debolt. T. Kaser, Dept. of Justice, Chief, Special Litigation Section, Washington, O. Charles Hosterman, U.S. Atty., OH, for all other defendants. Thomas, Robert L. Hust, Squire, Sanders and Dempsey, Columbus, OH, for Woodrose Ltd. MEMORANDUM AND ORDER District Judge. Background This case is currently before the Court to consider several motions filed by the parties in this This matter arose when filed a complaint against two private Defendants, the owner and management of the housing in which she and against several Defendants, the Secretary of Agriculture, and the Administrator, State Director, and a District the Farmers Home (hereinafter the "FmHA"). Following settlement with Plaintiff, the private Defendants were from this case in February 1992. In her complaint, the Plaintiff contends that FmHA's occupancy limits combined with the agency's administration of the Rural Rental Housing program a discriminatory impact on families with children. Beginning 1986, Ms. Debolt resided in the Village Green Apartments, a "Section 515" project. The FmHA administers a called Rural Housing or Section 515 program. Under Section 515, the FmHA Section 515 program through programs and through project operations. loan programs aid in the construction of rental housing for very low, low, or moderate income persons families residing in rural areas experiencing a shortage of adequate housing. 42 U.S.C. § 1485. Ms. lease contained a that limited the number of occupants in apartment to four persons. In 1991, when Ms. Debolt gave birth a fourth child, she was in violation of lease's four person occupancy limit. Accordingly, the management of the Village Green Apartments notified Ms. Debolt that she was required to move at the end of lease term. However, as part of the settlement of eviction action pending against her, Ms. Debolt stayed in her apartment for an additional year. in December of 1991, Ms. Debolt had a child and she was unable to a larger unit in FmHA's Rural Rental Housing Program, so she moved in with relatives. On September 30, 1992, granted motion to certify this matter as a class action pursuant Rule 23 of the Federal Rules of Civil Procedure. the Plaintiff class has been certified as: 212 all persons who either are or be eligible to reside, or to continue reside within a project financed under FmHA's 515 Rural Rental Housing Program, but for fact their family size exceeds that permitted reside in a two apartment under FmHA's occupancy standards. The Plaintiffs' First Amended pleads a class action challenging the and enforcement of an FmHA regulation, 7 § 1944.553, as conflicting with 42 U.S.C. §§ 1471, 1480, and 1485. The Plaintiffs argue that § 1944.553 was promulgated in violation of the Administrative Procedure Act (hereinafter the "APA"). The Plaintiffs also argue that the Defendants improperly administer Section 515 programs in the State of Ohio. The Plaintiffs assert the Defendants have a to review and disapprove non-complying termination notices to tenants, but that have to do so. The Plaintiffs also assert that the Defendants have approved a model rental agreement does not provide for a yearly term. The Plaintiffs also allege that these federal officials failed to administer the 515 program to meet the eligible families. The Plaintiffs specifically assert that this improper administration arbitrarily and unlawfully terminates eligibility for tenants and applicant families needing more than two bedrooms under FmHA's occupancy limits. The Plaintiffs further allege that these occupancy limits, along with the Defendants' improper administration, produce discriminatory and unlawful disparate impact upon families with children, in violation of the Fair Housing The Federal Defendants' Motion for Judgment on the Pleadings The federal Defendants have filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Civil Procedure. In their motion, federal Defendants assert that this Court jurisdiction to adjudicate the Plaintiffs' claims, except for those claims contained in 5 of Plaintiffs' complaint. The federal Defendants first contend that Counts 3, 4, 6, 7, 8, and 10 are barred by the doctrine of sovereign immunity. The federal Defendants also contend the Plaintiffs have no private right of action under either the United Housing Act 1949 (hereinafter "USHA") or the Fair Housing Act, if sovereign has been waived. The federal argue that the Plaintiffs lack to assert their claims that FmHA must finance rental housing units of particular size. However, the Plaintiffs argue that their claims not barred by the doctrine of sovereign as the law is allegedly well settled that statutory constitutional for equitable relief are not barred by sovereign immunity. Also, the Plaintiffs argue that for individual damages and attorney fees not barred by sovereign immunity, since such immunity was waived by Congress. Under the Administrative Procedure Act, Title 5 Section 702 provides, in part: ... An action in of the United States seeking relief other than money damages and stating claim that an or an officer or employee thereof acted or failed to act an capacity or under color of legal authority shall not be dismissed nor relief therein be denied the that it is against the States or that the United States is an indispensable party. Thus, Section 702[1] of the APA waive sovereign immunity for the Plaintiffs' USHA and constitutional claims. However, in their complaint, the Plaintiffs asserted one of their eight remaining claims under the APA. After a careful of authorities and arguments advanced by the parties in their 213 Court finds that it agrees with the federal Defendants that all of the Plaintiffs' claims should be asserted under the APA. Accordingly, the next question is the should be given leave amend their complaint assert their claims under the APA. The federal Defendants argue that the Plaintiffs should not be given leave to amend their complaint in this case to invoke the Administrative Procedure Act, since the litigation has been pending for more two years. However, Court notes the federal Defendants did not raise this issue until they filed this motion for judgment on the pleadings. The first mention this issue was contained in the federal Defendants' motion for judgment on the pleadings which filed almost two after the institution of case. The Court first notes the rationale expressed by Judge Whipple of the Western District of Missouri in the Tinsley v. Kemp, 750 F.Supp. 1001 (W.D.Mo.1990). Tinsley, Judge Whipple stated, in part: The intent of the complaint is obvious, the amendment would be almost a formality. Nevertheless, plaintiffs' basis for civil rights claims against a federal agency should be explicitly in their Accordingly, leave will be granted to amend complaint. Id. at 1010. In another case, Judge Haight of the Southern District of New York allowed plaintiffs to amend their complaint to invoke the Administrative Procedure Act. Almonte v. Pierce, 666 F.Supp. 517, 524-5 (S.D.N.Y. 1987). Almonte, Judge Haight noted the case was at the early stage of litigation and that the federal Defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amend their complaint. Id. at 525. In this case, the federal Defendants have not established that any specific prejudice result from the Plaintiffs amend complaint at this late date. The federal Defendants do allege that "voluminous" discovery has occurred in this case, although they do not allege how a technical amendment to the Plaintiffs' complaint would affect whatever discovery has already occurred in this case. The Court simply can not infer that prejudice result from an amendment which is "almost formality." 750 F.Supp. at 1010. Rule 15(a) of the Federal Rules of Civil Procedure provides that "leave [to amend] shall be freely given when justice so requires." As in Tinsley, the Plaintiffs' intent as expressed by their complaint is evident, and the amendment in this case is thus a mere formality. Under the presented by this case, the Court finds that justice mandates that the Plaintiffs be given leave to amend their complaint. The Court hereby DEEMS the Plaintiffs' complaint to amended so that their claims are now asserted under the Administrative Procedure federal Defendants' for judgment on the pleadings is hereby DENIED.[2] The Motions for Summary Judgment Standard of Review Rule 56(c) of the Federal Rules of Civil Procedure provides: [Summary judgment] ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions together with	832 f.SuPP. 209 (1993) SuElLa Debolt, ET al., PLAiNtiFfs, v. MIKe eSPY, seCretArY, U.S. DEpARtment of AGRIcUlTure, ET al., DefenDanTs. No. C2-91-157. uNITEd sTaTEs DISTrict CouRt, s.d. oHiO, e.D. JuLY 18, 1993. 210 211 SANdRa a. scOtt, soUThEASteRN OHio legAl SErVicE, zaNeSviLLE, oH, GaRY mIchaEL SmitH, sOuthEASTErn OhiO LeGAl sErvicE, New PHILAdeLphia, OH, foR SuElla debolt. SYLvia T. kaSer, u.S. DEpT. OF JUSTice, cHief, SpECIaL LItiGaTIoN SECTION, wAshINgTOn, DC, O. CHArLEs hosTERMaN, u.S. ATTy., COlUMbus, OH, FoR aLL OTher defeNdAnTS. jAmEs D. tHomAS, rObERT L. huSt, SquIRe, SaNders AND dEMpSeY, coLumbUs, oH, FOR woOdRosE lTD. MemoranDUM And ORDeR beCkwiTH, dISTriCT JudgE. BAcKgRoUND This CaSe iS CurrENTlY BEForE tHE COuRt TO cONsidER sEvERal moTionS filed by tHe PaRTIes iN tHIs AcTIon. ThIs MaTter ArOse when sUelLA deBoLT fILed a CoMpLAinT agAInst TWO PRivaTe DEfenDaNTs, THE ownER AnD MAnAGEmEnt cOmPany OF tHE hOUSING PRoject IN WhICh shE RESidEd, anD AGaiNST SeveRAL feDerAL defendaNTs, the SECrEtArY Of aGrIcultuRE, AND ThE admiNIstRaTor, state diReCTOr, AND A DIsTrICT DiRecTOR oF the faRmERS home ADmiNiSTRATIOn (HEReINAFTEr THE "fMhA"). FoLloWiNG THEIr sETtlemeNT wIth tHe PLAINtiFf, tHe pRIvatE DefENDants WERE DiSMIsSEd frOM THis CaSe In febRUaRY oF 1992. in heR coMplAiNt, thE PLaiNTiff CoNtEnDs THat THe FmHA's oCcupANCy LIMiTS cOMBineD wItH thE AgEnCY's ADMINisTRatiOn OF ThE rUral reNTAL houSinG pRogRam prodUCe a dIsCrImiNAtoRY iMPact on fAmiLIEs wItH cHILdREn. bEGInNing iN 1986, Ms. DEboLT ResIDED In tHE ViLLAGE GReen ApARtMENts, A "seCtion 515" PrOjECT. ThE FMhA ADMInISteRs a pRoGram CALlED tHE rUrAl REnTal hoUSING ProGrAM oR sECTIOn 515 PRoGRAM. unDeR SectION 515, THE fMHa AdMINiSterS tHE sECTIoN 515 pROGrAM THrougH lOan pROGRamS aNd thrOUGh PROjECt opErATiOnS. tHE loaN PRoGRaMs aiD In THe CoNStRUction oF RENTAL hOUsInG fOR veRy low, LoW, oR MOdERAtE InCome pERSoNs OR FamILies RESiDing In ruRaL arEaS expERIenciNG A SHorTAgE oF adequaTE hOUSinG. 42 U.S.C. § 1485. MS. dEboLt'S LEASE coNTAINed a proVisioN THat lIMIted the nUmbEr oF OCCupaNtS IN HER aPARtMENT TO fouR peRSONs. In 1991, WHEN Ms. Debolt Gave bIRTH to A fourTH ChIlD, She WaS IN vIoLATIOn oF tHe LEASe'S fOUr pErSoN oCCUpaNCy LIMIt. acCordiNglY, The mANagEmEnt Of THe VIlLAGe GReeN ApaRtmEnts nOtiFiEd ms. deboLT tHat sHE wAS requiRed To movE At tHe enD of hER leaSE TErm. hOWeVeR, as PArT Of thE SeTtlemeNT Of tHe eVICtIoN ACtiOn PendInG AGaInST hER, Ms. DeBOlT sTayeD In HER aparTmeNt fOR an AddiTIoNal YEAR. LateR, IN DecEMBeR OF 1991, MS. DEbolT haD a FiftH ChILD aNd SHE waS UnABLE tO fiNd A lArgER unIt IN fMHa'S ruRaL rentAL HoUsInG pRogRAm, so ShE mOVed iN wiTH ReLAtiVeS. oN SEPtEmBer 30, 1992, THIS cOurt GraNteD the pLainTiffs' moTiON tO CeRtiFY tHiS MAttEr As A cLAss ACtion PURSuANT To RulE 23 OF tHE fedeRal RULeS OF CiVIl PRoCEdUre. aCcOrdINGlY, the PLAINtiFF cLASS hAS beEN certIFiEd as: 212 aLL pErSoNs wHO eIthER Are or woULD Be ELigiblE TO ResIde, oR To ContInUE to rEsIDE WitHin A pROJECt FINAnCEd UNdER fmhA's SEcTION 515 rURAL reNTaL HoUSInG PRoGraM, BUt fOr the fact that theIR faMily siZe ExCeEDs ThaT PErmITTED tO Reside IN a Two bEdRoom ApaRtMENT UNDEr FmHa'S OCCUpancy sTanDArDs. The pLAINTIFfs' first aMEnDed CompLAinT PleaDS A cLASS ACtioN ChalleNGING tHE PRoMuLgaTIon AND eNFoRCEmenT OF An Fmha RegUlatioN, 7 C.F.r. § 1944.553, AS CONFlicting wITH 42 U.S.C. §§ 1471, 1480, ANd 1485. thE PlaINtIFFS aRgUe That § 1944.553 waS prOmuLgAteD in vIolaTiOn of the aDminisTRATIVE prOCedurE ACt (hEreInAfteR THE "Apa"). the plAinTiffs aLSo Argue THAT The defenDAnts iMpROPErly AdmINISTeR the sEctIon 515 pRograms In THE sTaTe OF oHIo. thE pLaiNTIffS asseRT tHAT the deFeNdANTs HAve A DUtY to REviEW aNd diSApProve nON-cOmplYiNG TErMINATIon nOTICeS to TenaNts, buT thaT they havE fAILed To Do sO. The plainTIFfS AlsO asSert tHAt tHE defeNDants haVE aPprovEd a mODEL RentAl aGrEEMEnT wHich dOeS not PROvIDe For A YeARLY ReNtAL terM. tHE pLaInTiFfS aLsO ALlEGe THAT theSE feDeral oFficials faiLeD to AdmIniStER tHE secTioN 515 pRogram TO MeeT the nEeDs Of EliGIBLE FAMiLIES. THe plaINTIfFS spEcificAlly aSSert thaT thIs iMPrOPER ADmINIsTrATiOn ArBITRArilY aNd UNlaWfUlLy DEniEs Or tERmiNatEs eLigibILiTY FOR FiNaNcially ELiGibLE TENanTS anD aPpLiCAnT familIes NeEdinG moRE Than TWO BeDrooMs UnDER fMha'S ResTriCtIve OccUPaNcy liMITS. The plAIntiFFs FuRtHEr AlLegE THAt thesE OCcupaNcY LiMiTs, ALONG wITh thE dEFEndanTS' IMprOpeR adMINISTRATION, ProDUce a DIsCRImiNATORy And unlawful DisPARATE IMpaCT uPon faMilIeS with CHILdREn, iN viOlAtion OF tHe fAIr HOUsIng aCt. THE FeDeRAl DefeNdaNtS' MoTiOn for JUDgMeNt oN THE PLEaDINgS ThE fEDEral DEfENDanTS hAVe FiLEd a MOtION for jUdGMent on The PlEADIngS puRsUant To RULe 12(c) Of The FedErAl RUlES of CIvil prOCedure. In THEIr moTiON, tHE FeDERal deFeNdANTs AsSErt THAT THiS CoURt is WItHOuT jurISdiCTion To AdjuDicATE thE pLAintIffs' clAIMs, ExcEpT for ThosE ClAimS CONTaiNED IN COUnT 5 of tHe pLAintIfFs' CoMPlainT. ThE fedeRAL deFeNDANts firsT cONtend THat cOuNts 3, 4, 6, 7, 8, 9, AnD 10 ARe Barred by thE doctriNE of soverEIGn immuniTY. ThE FEDerAL DeFeNDants ALSo cONteNd THaT THE PlaInTiFFs hAVE NO Private righT Of AcTioN unDeR EiTHeR THE UnItEd STAtES HOusING aCt of 1949 (HeREiNAFTeR "uSHa") Or ThE Fair HOusIng aCT, if SOveReIgn ImmunItY haS beEN wAIVEd. The fEDeRAL DeFenDAnTS FInAlLy ArgUe ThAt ThE PLaINTiffS lAcK STaNDING To aSSert tHeiR ClAIMs thAT fMha muSt fiNaNCe RENTAL hoUsinG UNits Of a parTICUlar SiZE. howevER, THE pLaInTIFfS ARGue That ThEIR cLaiMs are not bArReD BY ThE doCtrINe oF sOveReign immUNItY aS The LAW IS aLLEgEdly WELl SEtTlEd thAt StAtutory aNd CoNsTiTUTiONAl ClaImS for EQUItablE ReLIEf ARE NoT bARREd bY SOveREign iMmunITy. AlSO, tHE PlainTIffs aRgUE THat THeiR CLAims FoR INdIVIDUAl DAmAGES AnD aTtoRneY fees uNdER TiTle vIii aRe nOt BArrED BY SOvErEiGn IMmUNity, SIncE SUCh imMUnitY Was WAived by CoNGrEsS. undeR thE aDMiNIstrative ProcEDuRE ACT, TiTlE 5 sECTion 702 PROVIDES, in Part: ... An actIon In A COURt OF tHE UNiTeD stAtES SeekING RelIeF oTHeR Than mONey DAMaGeS ANd StAtInG a ClaiM THAT An AGeNcY OR aN ofFiceR oR eMPLOYEE thEReoF acTEd oR fAiLed To aCt In aN oFFICiaL CaPaCITy oR UNDer cOloR oF LegAL AutHOrITy shAll nOT be dISmIsSEd Nor ReliEf tHeRein Be deniEd on The gROUND THAT It is AGAINSt ThE uniTEd sTaTES or THAT thE UNitED staTES is an InDispEnSabLe PArtY. Thus, secTiON 702[1] OF ThE Apa AcTS TO wAIvE sovEreigN immUNity foR thE PlainTIffs' ushA anD COnStiTuTIonAL ClAImS. HowEver, in theIr coMpLAiNT, tHe PLAIntIffs Have OnlY aSSeRTeD onE oF tHEiR EigHt REMaINiNG clAimS UnDER tHE Apa. AfteR a cAreFul rEVieW oF tHE auTHoritIES aND arGuMEntS adVaNced by tHe pArtIeS in theiR memoRaNda, 213 THIs cOURT fiNds tHAT iT AgREES WIth the FederaL defENdANTs THaT aLL of the PlaIntiffS' Claims SHoULD Be AssERTED UnDer the ApA. AccorDiNGLY, THe NeXt QUEsTIon iS WHeTher ThE pLAiNTiFfS shOUlD be GIVen LeAve to aMend thEIR coMpLAINt TO assERt TheIR cLAImS uNdeR tHE apa. thE FEdeRAL DEfeNDanTS aRGuE THAt ThE plaInTIFfs SHoulD Not bE giVEn leaVE to amend TheiR comPlAInT IN tHiS CaSE to INVoKE thE aDmiNistrATIVE PROcEdurE AcT, sINCe The LITIgaTIoN Has beEN peNdinG fOr MoRE tWO yeaRs. HowEVer, tHe cOuRT nOtEs tHaT THe fEdeRAl dEFEndaNTS DId NoT RAIsE THiS issUe uNTIL They FILeD thIS MoTIoN for jUDgMENt ON tHE PLEadiNGS. The fIrST MENtion OF THis iSSUE WaS coNtAINED IN THE FedeRAl dEFENDANtS' motIoN For jUDGMeNt On tHE PLEaDingS whiCH Was FILEd aLMOst TWo YEarS After thE iNStITUTIOn Of The cASe. THe COURt FIRST NOtEs THe ratiONAlE EXPReSsEd By jUDgE whIPple of THe wEstERN diSTrICT Of mISSOUri iN ThE CAsE of tiNsLEy v. kemP, 750 F.supP. 1001 (W.D.MO.1990). in tINslEY, jUDGE wHIPpLe stateD, iN PArt: THe iNtENt oF thE cOMPlAINT IS obvIoUS, SO THe AMENdmeNT wOUlD BE almost A fOrMAlIty. nEVerthElEss, PLaIntIfFS' bAsiS For brInGiNG CIvIL rIghts CLaiMs agaiNST A federaL AGEnCy SHOULd BE esTablISheD eXplICitLY iN thEir ComPLAiNT. ACCoRdInGlY, LEAVe WIlL Be GRanteD To amenD tHE ComPLaInT. id. AT 1010. iN AnOTHeR CAsE, JudGe hAIgHT oF THe SoUTHeRn dIstRIcT OF NEW yorK ALLOWed PlaINTIFFs tO AmEnD TheiR coMplaiNt TO INvOkE The AdmINISTRatIVE pROCEdurE acT. AlmoNTe V. PIerCe, 666 f.SUPp. 517, 524-5 (s.D.N.y. 1987). in almoNTe, judGe Haight noTeD THaT tHE CASe waS aT The eArlY StAge OF LiTIgatIOn And THAt tHe federal dEfEnDANts HAD nOt DEmONstraTeD THAT AnY preJUDicE woULD resULt fROm AllowIng The PLaiNTIFfs to aMEnD thEIr CoMPlAiNT. Id. At 525. in THis cAsE, thE feDerAl dEFenDAntS HAve Not EsTabLIshED ThaT ANY spECific pREjudICe wOUlD ResuLt FRom aLLowIng tHE plAINTIfFS tO aMenD TheIR COmpLaiNT At This lAte dAte. the FEderAL defEnDAntS Do AlLEgE that "voLumiNOuS" DIScoVERy HAS OCCuRreD IN THIs CasE, alTHOUgH TheY do not alleGe HOW a tecHNIcAL AmeNdMEnt To thE PlAiNTIffS' COmpLaInT WOUlD AffeCT whaTeVER disCoveRy has already ocCuRred IN thIs CasE. thE COUrt SIMPly cAN NOT iNFEr tHaT preJudice woULd rEsuLt frOM aN AmeNDmeNT WhIch Is "almOST A FOrMAlITY." seE, 750 F.SUPP. at 1010. moreOvER, RULE 15(A) Of ThE FeDeRAL RULes oF CivIl prOceDURe ProvidEs ThaT "Leave [To amEND] shAll be freeLY GIVen WHEn JustIce sO ReQuirES." aS IN TinsLEy, tHe pLAiNTiffs' inTent As ExpResSEd By tHeir cOMPlaInt IS evIDeNt, AND the AMendmeNT in ThiS cASe Is thUS a meRE ForMAlity. undEr The CIRcUmsTancEs presenteD bY tHIs casE, the COuRT FIndS thAT JuStiCE maNdAtes tHaT THe PlaINtiffS be GiVEN lEAvE to AmenD thEIR comPlAiNt. the Court HeREby DEEms THE plaiNTIffS' ComPlAiNt tO bE aMENDEd So tHaT their ClAimS ARE nOW aSseRtED undEr ThE aDmINiSTRATive PROcEDURe ACT. THe fEDERAL dEfeNDAnts' MOTIOn fOr juDGmEnT On the plEaDINGS iS hEREby DENieD.[2] thE motIOns For SUMMarY JudgmENT sTaNdARD OF rEVIEW rule 56(C) OF THE FEDeRal RUleS oF CIVil pROCEDuRE pRoViDeS: [sUmMary JuDGMeNt] ... SHalL Be rEndERed fOrtHWitH IF THe PlEAdiNgS, depOsitionS, anSwErS TO iNTERrogatOrIes, ANd AdmIssiOnS on FilE, toGetHer wiTh	832 F.Supp. 209 (1993)Suella DEBOLT, et al., Plaintiffs,v.Mike ESPY, Secretary, U.S. Departmentof Agriculture, et al., Defendants. No. C2-91-157. United States District Court, S.D. Ohio, E.D. July 18, 1993.210 211 Sandra A. Scott, Southeastern OhioLegalService, Zanesville, OH, GaryMichael Smith,Southeastern Ohio LegalService, New Philadelphia,OH, for Suella Debolt. Sylvia T. Kaser,U.S. Dept. of Justice, Chief,Special Litigation Section, Washington, DC, O. Charles Hosterman, U.S. Atty., Columbus, OH, for allother defendants. JamesD. Thomas, Robert L. Hust, Squire, Sanders and Dempsey, Columbus, OH, for WoodroseLtd. MEMORANDUM AND ORDER BECKWITH, DistrictJudge.Background This caseis currently before the Court toconsiderseveralmotions filed bythe partiesin this action. This matter arose when Suella Debolt fileda complaint against two private Defendants, the owner and management company of thehousing project in which she resided, and against several federal Defendants, the Secretary of Agriculture, andtheAdministrator,State Director, and aDistrict Director of the FarmersHome Administration (hereinafter the "FmHA"). Following their settlement with the Plaintiff, the private Defendants were dismissed from this case in February of 1992. In hercomplaint, the Plaintiff contends thatthe FmHA's occupancy limits combinedwith the agency's administration ofthe Rural Rental Housing program producea discriminatory impact on families with children. Beginning in 1986, Ms.Debolt resided in the Village Green Apartments, a "Section 515" project. TheFmHAadministers a program called theRural Rental Housingprogram or Section 515 program. Under Section 515, theFmHA administers the Section 515 program through loan programs and through project operations. The loan programs aid in the construction of rental housing for very low, low, or moderate incomepersons or families residing in rural areas experiencingashortage of adequate housing. 42 U.S.C. §1485. Ms. Debolt's lease contained a provision that limited the number of occupants in her apartment to fourpersons. In 1991, when Ms. Deboltgavebirth to a fourth child, she was in violation of the lease's four person occupancy limit. Accordingly, the management of the Village Green ApartmentsnotifiedMs.Debolt that she was requiredtomove at the end of her lease term. However, as part of thesettlement of the eviction action pending againsther, Ms. Debolt stayedin her apartment for an additional year. Later, in December of 1991, Ms. Debolt had a fifth child and she was unable to find a larger unit in FmHA's Rural Rental Housing Program, so she moved in withrelatives.On September 30, 1992, thisCourt granted the Plaintiffs' motion to certify this matter as a class action pursuantto Rule23 of theFederal Rules of CivilProcedure. Accordingly, the Plaintiffclass has been certifiedas: 212 all persons who either are or would be eligible to reside, or to continue to residewithin a project financed underFmHA's Section515 Rural Rental Housing Program, but for the factthat their family size exceeds thatpermitted to residein a twobedroom apartment under FmHA's occupancy standards.ThePlaintiffs' First Amended Complaint pleads a classaction challenging the promulgation and enforcement of an FmHA regulation, 7 C.F.R. § 1944.553, as conflictingwith 42 U.S.C.§§ 1471, 1480, and1485. ThePlaintiffs argue that § 1944.553 was promulgated inviolation of the AdministrativeProcedureAct (hereinafter the"APA"). The Plaintiffs also arguethat the Defendants improperly administer the Section515 programs in the State of Ohio. The Plaintiffs assertthat the Defendantshavea duty to review and disapprove non-complying termination notices to tenants, but that they have failedto do so. The Plaintiffs also assert that the Defendants haveapproved a modelrental agreement which does notprovidefor a yearlyrental term. The Plaintiffs also allege that these federal officials failed to administer the Section515 program to meet the needs ofeligible families. The Plaintiffs specifically assert that this improper administration arbitrarilyand unlawfully denies or terminates eligibility for financially eligible tenantsandapplicant families needing more than two bedrooms under FmHA's restrictive occupancy limits. The Plaintiffs further allege thattheseoccupancylimits,along with the Defendants' improper administration,produce a discriminatory and unlawful disparate impactupon families with children, in violation of the Fair Housing Act. The Federal Defendants' Motion for Judgment on the Pleadings The federal Defendants have filed a motion forjudgment on the pleadingspursuant to Rule 12(c) of the FederalRules of Civil Procedure. In their motion, the federal Defendants assertthat thisCourt is without jurisdiction to adjudicate the Plaintiffs' claims, exceptfor thoseclaims contained inCount 5 of the Plaintiffs' complaint. The federal Defendants first contendthat Counts 3, 4, 6, 7, 8, 9, and 10 are barred by the doctrine of sovereign immunity. The federal Defendants also contend that the Plaintiffs haveno private right of action under either the United States Housing Act of 1949(hereinafter "USHA") or the Fair Housing Act, ifsovereign immunity has been waived. The federal Defendants finally argue that the Plaintiffs lack standingto assert their claims that FmHA mustfinance rental housing unitsof a particular size.However, the Plaintiffs argue that their claims are not barredby the doctrine of sovereign immunity as the law is allegedly well settled that statutory and constitutionalclaims forequitable reliefare not barred by sovereignimmunity. Also,the Plaintiffs argue that theirclaims for individual damages and attorney feesunder TitleVIIIare not barred by sovereign immunity, sincesuch immunity was waivedby Congress. Underthe Administrative Procedure Act, Title 5 Section 702provides, in part: ... An action in a court of the United States seeking relief other than money damages and stating a claim that an agencyor anofficer or employee thereof acted or failed to act in an official capacity or under color oflegal authority shall notbe dismissed norrelief therein bedenied on the groundthat itis against the United States or that the United States is an indispensable party. Thus, Section 702[1] of the APA acts to waive sovereignimmunity forthe Plaintiffs' USHA and constitutional claims. However, in their complaint, the Plaintiffs have only asserted one of their eight remaining claims underthe APA. After acareful review of the authoritiesand argumentsadvanced by the parties in their memoranda, 213 this Court finds that it agrees with the federal Defendants that all ofthe Plaintiffs' claims should be asserted under the APA. Accordingly,the next questionis whether the Plaintiffs should be given leave to amend their complaint to assert their claims under the APA. The federal Defendants argue that the Plaintiffs should not be givenleave to amend their complaint in this case toinvoke the Administrative Procedure Act, since the litigation has been pending for more two years. However, the Court notesthatthe federal Defendants did not raise this issue until they filed this motion for judgment on the pleadings. The firstmention of this issue was contained in the federal Defendants' motion forjudgmenton the pleadings whichwas filed almost two years after the institution of the case. The Court first notes therationale expressedby Judge Whipple of the Western District of Missouri in the case ofTinsley v. Kemp, 750 F.Supp.1001 (W.D.Mo.1990). In Tinsley, Judge Whipple stated, in part: The intent of the complaint isobvious, so theamendment wouldbe almost a formality. Nevertheless, plaintiffs'basis for bringing civil rights claims against a federal agency should be establishedexplicitly intheir complaint. Accordingly, leave will begranted to amend the complaint. Id. at 1010. In anothercase, JudgeHaight of the Southern District ofNew Yorkallowed plaintiffs to amend their complaintto invoke the Administrative Procedure Act. Almonte v. Pierce,666 F.Supp. 517, 524-5 (S.D.N.Y. 1987). In Almonte, Judge Haight notedthat the case wasat the earlystage of litigation and thatthe federal Defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amendtheir complaint. Id. at 525. In this case, the federal Defendants have not established that any specific prejudice would result from allowing the Plaintiffs toamendtheir complaint at thislate date. The federal Defendants do allegethat "voluminous" discovery has occurred in this case, althoughthey do not allege how a technical amendment to the Plaintiffs' complaint would affect whatever discovery has already occurredin this case. TheCourt simply can not infer that prejudice would result froman amendment whichis "almost a formality." See, 750 F.Supp. at 1010. Moreover, Rule 15(a)of the Federal Rules of Civil Procedureprovides that "leave[toamend] shall be freely given whenjustice so requires." As in Tinsley, thePlaintiffs' intent as expressedby their complaint is evident, and the amendment in this case isthus a mere formality. Under the circumstances presented by this case, the Court finds that justice mandates that the Plaintiffs be given leave to amend their complaint. The Court hereby DEEMS the Plaintiffs'complaint to be amended so that their claims are now asserted under the Administrative Procedure Act. The federal Defendants' motion for judgment on the pleadings is hereby DENIED.[2] The Motions for Summary Judgment Standard ofReview Rule 56(c)oftheFederal Rules ofCivil Procedure provides: [Summary judgment] ... shall be rendered forthwith if the pleadings, depositions,answers tointerrogatories, and admissions on file,together with	832 F.Supp. 209 (1993) Suella DEBOLT, et al., Plaintiffs, v. Mike ESPY, Secretary, U.S. Department of Agriculture, et al., Defendants. No. C2-91-157. _United_ States District Court, S.D. Ohio, E.D. July 18, 1993. 210 211 _Sandra_ A. Scott, Southeastern Ohio _Legal_ Service, Zanesville, OH, Gary Michael Smith, _Southeastern_ _Ohio_ Legal Service, New _Philadelphia,_ _OH,_ _for_ Suella Debolt. _Sylvia_ _T._ Kaser, U.S. Dept. of Justice, _Chief,_ _Special_ Litigation Section, Washington, DC, O. _Charles_ Hosterman, U.S. _Atty.,_ _Columbus,_ OH, _for_ all _other_ defendants. _James_ _D._ _Thomas,_ Robert L. Hust, Squire, _Sanders_ and Dempsey, _Columbus,_ OH, for Woodrose Ltd. MEMORANDUM AND ORDER BECKWITH, District _Judge._ _Background_ This case is _currently_ before _the_ Court to consider several motions filed by the parties _in_ this action. This matter _arose_ when Suella Debolt filed a _complaint_ against two private _Defendants,_ the owner _and_ management company of _the_ housing project in which she resided, and against _several_ federal Defendants, the _Secretary_ of _Agriculture,_ _and_ the _Administrator,_ _State_ Director, and a District Director of the Farmers Home _Administration_ (hereinafter _the_ "FmHA"). Following their settlement with the Plaintiff, the private Defendants were dismissed from this case in February of 1992. In her _complaint,_ the Plaintiff contends that the _FmHA's_ occupancy limits combined with the agency's administration of _the_ Rural Rental Housing program produce a discriminatory impact _on_ families _with_ children. Beginning in 1986, Ms. Debolt resided in the _Village_ Green _Apartments,_ a _"Section_ _515"_ project. The FmHA administers a _program_ called _the_ Rural _Rental_ Housing program or Section 515 program. Under _Section_ _515,_ the FmHA administers _the_ Section 515 program through loan programs and _through_ project operations. The loan programs aid _in_ the construction of rental housing for _very_ low, low, or _moderate_ income persons _or_ families residing in rural areas experiencing a shortage of adequate housing. 42 U.S.C. § 1485. Ms. Debolt's lease contained a provision _that_ limited _the_ number _of_ occupants in her apartment to _four_ persons. In 1991, _when_ _Ms._ Debolt gave _birth_ to _a_ fourth child, she was in _violation_ of the lease's four person occupancy _limit._ Accordingly, the management of the Village _Green_ _Apartments_ notified Ms. Debolt that she _was_ required _to_ move _at_ the _end_ of her _lease_ term. However, as part of the settlement _of_ the _eviction_ action pending against her, Ms. Debolt stayed in her apartment for an _additional_ year. Later, in _December_ _of_ 1991, Ms. Debolt had a fifth child _and_ she _was_ unable to _find_ a _larger_ unit in _FmHA's_ Rural Rental Housing Program, so _she_ moved in _with_ relatives. _On_ September 30, 1992, this Court granted the Plaintiffs' motion to certify this matter as a _class_ _action_ pursuant to Rule _23_ of the Federal Rules of Civil _Procedure._ _Accordingly,_ the Plaintiff class _has_ been _certified_ _as:_ 212 all persons who either are or _would_ be eligible to _reside,_ or to continue to _reside_ within _a_ project financed _under_ _FmHA's_ Section 515 Rural Rental Housing _Program,_ but for the fact that their family size exceeds that permitted to _reside_ in _a_ _two_ _bedroom_ apartment under FmHA's occupancy standards. _The_ Plaintiffs' _First_ Amended Complaint pleads _a_ class action challenging the promulgation and _enforcement_ of _an_ _FmHA_ regulation, 7 C.F.R. § _1944.553,_ as _conflicting_ with 42 U.S.C. §§ 1471, 1480, _and_ 1485. The _Plaintiffs_ argue _that_ § 1944.553 was promulgated in violation of the _Administrative_ Procedure _Act_ (hereinafter _the_ "APA"). The Plaintiffs also argue that the Defendants improperly administer the Section 515 programs in _the_ State _of_ Ohio. The Plaintiffs assert that _the_ Defendants have a duty to review and disapprove non-complying termination notices _to_ tenants, but that _they_ have failed to _do_ so. The Plaintiffs also assert that the Defendants have approved a _model_ rental agreement which does _not_ provide for a yearly _rental_ term. The Plaintiffs also allege _that_ _these_ federal officials _failed_ to administer _the_ _Section_ 515 program _to_ meet the needs of eligible _families._ _The_ _Plaintiffs_ specifically assert that this _improper_ administration arbitrarily and unlawfully denies or terminates eligibility for financially _eligible_ tenants _and_ applicant families needing more _than_ two _bedrooms_ under _FmHA's_ _restrictive_ occupancy _limits._ _The_ Plaintiffs further allege that _these_ occupancy limits, along with the Defendants' improper administration, produce a discriminatory and unlawful disparate _impact_ upon families with children, in violation of _the_ Fair Housing Act. The Federal _Defendants'_ Motion for Judgment on the Pleadings The federal Defendants have filed a motion for judgment on the pleadings pursuant _to_ Rule _12(c)_ of the Federal Rules of Civil Procedure. _In_ _their_ _motion,_ _the_ _federal_ Defendants assert that this Court is without _jurisdiction_ to _adjudicate_ the Plaintiffs' claims, except for those claims contained in Count 5 of the Plaintiffs' complaint. The federal Defendants first contend that Counts 3, 4, 6, 7, 8, _9,_ _and_ 10 are _barred_ by the doctrine of sovereign immunity. The _federal_ Defendants _also_ contend that the _Plaintiffs_ _have_ no private right of action under either the United States Housing _Act_ of 1949 _(hereinafter_ "USHA") or the Fair Housing _Act,_ if _sovereign_ immunity has been _waived._ The _federal_ Defendants finally argue that _the_ _Plaintiffs_ lack standing _to_ assert their claims _that_ FmHA must finance rental housing units of a particular size. _However,_ the Plaintiffs argue that their claims _are_ not barred by the _doctrine_ of sovereign immunity _as_ _the_ law is allegedly _well_ settled that statutory and constitutional claims _for_ equitable relief are _not_ barred _by_ sovereign immunity. _Also,_ the Plaintiffs argue _that_ their claims _for_ _individual_ damages and attorney fees under Title VIII are not barred by sovereign immunity, since _such_ immunity _was_ waived by Congress. Under _the_ Administrative Procedure _Act,_ _Title_ _5_ Section 702 _provides,_ in part: ... _An_ _action_ in a court of _the_ United States seeking relief _other_ _than_ _money_ damages and stating a _claim_ that an agency or an officer or employee thereof acted or failed to _act_ in an official _capacity_ or under color of legal authority shall _not_ be dismissed nor relief therein be denied on the ground that it is against the _United_ _States_ or that the United States is an indispensable party. Thus, Section 702[1] of the APA acts to waive sovereign immunity for the _Plaintiffs'_ USHA and constitutional claims. However, _in_ their _complaint,_ the _Plaintiffs_ have _only_ asserted one of their eight remaining claims under the APA. After a careful review of the authorities and arguments advanced by the parties in their _memoranda,_ 213 this Court finds _that_ it agrees with the federal Defendants _that_ _all_ of the _Plaintiffs'_ claims should be asserted under the _APA._ Accordingly, _the_ next question is _whether_ the Plaintiffs should be given leave to amend their complaint _to_ assert their claims under the _APA._ The federal Defendants _argue_ that the Plaintiffs _should_ not _be_ given leave _to_ amend _their_ complaint _in_ this _case_ to invoke the _Administrative_ Procedure Act, since the litigation has been pending for more _two_ years. However, _the_ Court _notes_ _that_ _the_ federal Defendants did _not_ raise this issue _until_ they filed this motion for judgment _on_ the pleadings. The first mention _of_ _this_ issue was contained in the federal Defendants' motion _for_ _judgment_ on the _pleadings_ which was filed almost two years after _the_ institution of the _case._ _The_ Court _first_ _notes_ the rationale _expressed_ by Judge Whipple of the Western District of Missouri _in_ _the_ case of Tinsley _v._ Kemp, 750 F.Supp. _1001_ (W.D.Mo.1990). In Tinsley, _Judge_ _Whipple_ stated, in part: The intent of the complaint is obvious, so _the_ amendment _would_ be almost a formality. Nevertheless, plaintiffs' basis _for_ _bringing_ _civil_ _rights_ claims against a federal agency should be established explicitly in their complaint. Accordingly, leave _will_ be granted to amend the complaint. Id. at 1010. In _another_ case, Judge _Haight_ of the Southern District of _New_ York allowed plaintiffs to amend their complaint to invoke _the_ Administrative _Procedure_ Act. _Almonte_ v. Pierce, _666_ _F.Supp._ 517, 524-5 (S.D.N.Y. 1987). In Almonte, Judge Haight noted that the case _was_ at the early stage _of_ litigation _and_ that the federal Defendants _had_ not demonstrated that _any_ prejudice would result from allowing the plaintiffs to amend their complaint. _Id._ at 525. In _this_ case, _the_ federal Defendants _have_ not established that any specific prejudice would result _from_ allowing the Plaintiffs _to_ amend their complaint at this late date. The federal _Defendants_ _do_ _allege_ that _"voluminous"_ discovery has occurred in this case, _although_ they do not allege _how_ a technical amendment _to_ _the_ _Plaintiffs'_ _complaint_ would affect whatever _discovery_ has already occurred _in_ this case. _The_ _Court_ _simply_ can _not_ infer that prejudice would _result_ from an amendment _which_ is "almost a _formality."_ See, 750 F.Supp. _at_ 1010. _Moreover,_ Rule 15(a) of the Federal Rules of Civil Procedure provides that _"leave_ [to _amend]_ shall be freely given _when_ justice so requires." As in _Tinsley,_ _the_ Plaintiffs' intent as expressed _by_ their complaint is evident, and the amendment in this case is _thus_ a mere formality. Under the circumstances presented by _this_ case, _the_ Court _finds_ that justice mandates that _the_ _Plaintiffs_ _be_ given leave _to_ _amend_ _their_ _complaint._ The Court _hereby_ DEEMS the Plaintiffs' complaint _to_ be _amended_ _so_ that their claims are now _asserted_ under the Administrative Procedure Act. The federal Defendants' motion for judgment on the pleadings _is_ hereby _DENIED.[2]_ The Motions for Summary Judgment Standard of _Review_ Rule 56(c) of the Federal Rules _of_ Civil Procedure provides: [Summary _judgment]_ _..._ shall be rendered forthwith _if_ _the_ _pleadings,_ depositions, answers to interrogatories, and admissions _on_ _file,_ together _with_
204 Va. 316 (1963) LESTER POLLARD v. ELIZABETH SMITH POLLARD. Record No. 5548. Supreme Court of Virginia. April 22, 1963. William Davis Butts, on brief for the appellant. Present, All the Justices. Lester Pollard's bill for divorce on the ground of wilful desertion by his wife Elizabeth Pollard was dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion. The evidence showed the desertion without cause on January 28, 1947; the adjudication of insanity on February 26, 1947; and that defendant had given no indication of insanity prior to the date of the desertion. On this evidence it was error to refuse the divorce. Code 1950, section 20-93, changes the prior rule of the cases in such situations and expressly states that insanity so occurring is no defense to a bill for divorce by the deserted spouse. Appeal from a decree of the Circuit Court of the city of Hampton. Hon. Frnk A. Kearney, judge presiding. The opinion states the case. William Alfred Smith, on brief for the appellee. Case submitted on briefs. CARRICO CARRICO, J., delivered the opinion of the court. In this divorce case we are, for the first time, presented the question of the application of Code, \| 20-93, the pertinent provisions of which are as follows: "Insanity of guilty party after commencement of desertion no defense. -- When the suit is for divorce from the bond of matrimony for wilful desertion or abandonment, it shall be no defense that the 317 guilty party has, since the commencement of such desertion, and within one year thereafter, become and has been adjudged insane, but at the expiration of one year from the commencement of such desertion the ground for divorce shall be deemed to be complete. . . ." The question here presented arises from an appeal granted Lester Pollard, the complainant, from a final decree dismissing his bill of complaint for divorce, alleging wilful desertion and abandonment, filed against Elizabeth Smith Pollard, the defendant. The bill was dismissed because it was shown that the defendant had been adjudged insane subsequent to the date of the alleged desertion and prior to the expiration of one year from such date. The bill alleged, and the evidence showed, that the Pollards were married on April 19, 1941; that they lived together for six years, during which time the complainant was a dutiful husband; that the defendant deserted the complainant on January 28, 1947, without just cause or excuse; that the desertion had continued uninterrupted since that date; that on February 26, 1947, the defendant was adjudged insane and was committed to Central State Hospital at Petersburg, where she was still confined when the case was heard. The evidence further showed that the defendant displayed no signs of mental illness at the time she left the complainant on January 28, 1947. Prior to the enactment, in 1926, of what is now Code, \| 20-93, it was the law in this state that when a defendant in a divorce case became and was adjudged insane between the date of desertion and the running of the statutory period prescribed to make the ground for divorce complete, such insanity was a bar to the granting of a divorce. We had so held in Wright Wright, 125 Va. 526, 99 S.E. 515, decided June 12, 1919, where it was stated that the reason for the rule was that, "an insane person is incapable of forming the intent, either to continue the desertion or to seek a reconciliation." 125 Va., at pp. 528, 529. In the Wright case, Judge Prentis conceded that the rule there enunciated would, in some cases, cause undue hardship. He said, however, that, "[if] there be hardship, the question is one of public policy for the consideration of the General Assembly." 125 Va., at p. 529. The legislature, perhaps motivated by the cases of hardship pointed to by Judge Prentis but, in any event, in sound consideration of public policy, saw fit to change the rule adopted in the Wright case. In 318 clear and unambiguous language it provided that insanity, occurring between the commencement of desertion and the running of the statutory period, is not a bar to divorce for wilful desertion or abandonment. A defense based upon such insanity, previously provided by judicial rule was, by legislative rule, declared no longer to exist. Now, when desertion occurs and continues uninterrupted for one year the ground of divorce is complete, notwithstanding that the defendant meanwhile has become and has been adjudged insane. It is the duty of the courts to recognize and give effect to such a legislative rule. In the case before us, the evidence was sufficient to sustain the complainant's ground for divorce, and it was error to refuse him a decree because the defendant became and was adjudged insane in the one-year period following the desertion. Accordingly, the decree will be reversed and the cause remanded with direction to enter a decree awarding the complainant a divorce from the defendant for wilful desertion and abandonment for more than one year. Reversed and remanded.	204 va. 316 ( 1963 ) lester pollard v. elizabeth smith pollard. record no. 5548. supreme court of virginia. april 22, 1963. william howard butts, on brief for the appellant. present, all the justices. lester pollard ' s bill for divorce on the ground of wilful desertion by his wife elizabeth pollard was dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion. the evidence showed the desertion without cause on january 28, 1947 ; the adjudication of insanity on february 26, 1947 ; and that defendant had given no indication of insanity prior to the date of the desertion. on this evidence it was error to refuse the divorce. code 1950, section 20 - 93, changes the prior rule of the cases in such situations and expressly states that insanity so occurring is no defense to a bill for divorce by the deserted spouse. appeal from a decree of the circuit court of the city of hampton. hon. frnk a. kearney, judge presiding. the opinion states the case. lester alfred smith, on brief for the appellee. case submitted on briefs. carrico carrico, j., delivered the opinion of the court. in this divorce case court are, for the first time, presented the question of the application of code, \| 20 - 93, the pertinent provisions of which are as follows : " insanity of guilty party after commencement of sale no defense. - - when the suit is for divorce from the bond of matrimony for wilful desertion or abandonment, it shall be no defense that the * 317 guilty party has, since the commencement of such desertion, and within one year thereafter, become and has been adjudged insane, but at the expiration of one year from the commencement of such desertion the ground underlying divorce shall be deemed to be complete.... " the question here presented arises from an appeal granted lester pollard, the complainant, from a final decree dismissing his bill of complaint for marriage, alleging wilful desertion and abandonment, filed against elizabeth smith pollard, the defendant. the bill was dismissed because it was shown that the defendant had been presumed insane according to the date of the alleged desertion and prior to the commencement of one year from such date. the bill alleged, and the evidence showed, that the pollards were married on april 19, 1941 ; that they lived peacefully for six years, during which time the complainant was a dutiful husband ; that the defendant deserted the complainant on january 28, 1947, without just cause or excuse ; that the desertion had continued uninterrupted since that date ; that on february 26, 1947, the defendant was adjudged insane and was committed to central state hospital at petersburg, where she was still confined when the case was heard. the evidence further showed that the defendant displayed no signs of mental illness at the time she left the complainant on january 28, 1947. prior to the enactment, in 1926, of what is now code, \| 20 - 93, it was the law in this state that when a defendant in a divorce case became and was adjudged insane between the date of desertion and the running of the statutory period prescribed to make the ground for divorce complete, such insanity was a bar to the granting of a divorce. we had so held in wright wright, 125 va. 526, 99 s. e. 515, decided june 12, 1919, where it was stated that the reason for the rule was that, " an insane person is incapable of forming the intent, either to continue the desertion or to seek a reconciliation. " 125 va., at pp. 528, 529. in the wright case, judge prentis conceded that the rule there enunciated would, in some cases, cause undue hardship. he said, however, that, " [ if ] there be hardship, the question is one of public policy for the consideration of the general assembly. " 125 va., at p. 529. the legislature, perhaps motivated by the cases of hardship pointed to by judge prentis but, in any event, in sound consideration of public policy, saw fit to change the rule adopted in the wright case. in * 318 clear and unambiguous language it provided that insanity, occurring between the commencement of desertion and the running of the statutory period, is not a bar to divorce for wilful desertion or abandonment. a defense based upon such insanity, previously provided by judicial rule was, by legislative rule, declared no longer to exist. now, when desertion occurs and continues uninterrupted for one year the ground of divorce is complete, notwithstanding that the defendant meanwhile has become and has been adjudged insane. it is the duty of the courts to recognize and give effect to such a legislative rule. in the case before us, the evidence was sufficient to sustain the complainant ' s ground for divorce, and it was error to refuse him a decree because the defendant became and was adjudged insane in the one - year period following the desertion. accordingly, the decree will be reversed and the cause remanded with direction to enter a decree awarding the complainant a divorce from the defendant for wilful desertion and abandonment for more than one year. reversed and remanded.	204 Va. 316 (1963) LESTER POLLARD v. ELIZABETH SMITH PO;LATD. Record No. 5548. Supreme Court of Virginia. April 22, 1963. William Davis Butts, on brief for the appellant. Present, All the Justices. Lester Pollard ' s bill for divorce on the ground of wilful desertion by his wife Elizabeth Pollard was dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion. The evidence showed the desertion without cause on January 28, 1947; the adjudication of insanity on February 26, 1947; and that defendant had given no indication of insanity prior to the date of the desertion. On this evidence it was error to refuse the divorce. Code 1950, section 20 - 93, changes the prior rule of the cases in such situations and expressly states that insanity so occurring is no defense to a bill for divorce by the deserted spouse. Appeal from a decree of the Circuit Court of the city of Hampton. Hon. Frnk A. Kearney, judge presiding. The opinion states the case. William Alfred Smith, on brief for the appellee. Case submitted on briefs. CARRICO CARRICO, J. , delivered the opinion of the court. In this divorce case we are, for the first time, presented the question of the application of Code, \| 20 - 93, the pertinent provisions of which are as folOowW: " Insanity of guilty party after commencement of desertion no defense. - - When the suit is for divorce from the bond of matrimony for wilful desertion or abandonment, it shall be no defense that the * 317 guilty party has, since the commencement of such desertion, and within one year thereafter, become and has been adjudged insane, but at the expiration of one year from the commencement of such desertion the ground for divorce shall be deemed to be complete. .. . " The question here presented arises from an appeal granted Lester Pollard, the complainant, from a final decree dismissing his bill of complaint for divorce, alleging wilful desertion and abandonment, filed against Elizabeth Smith Pollard, the defendant. The bill was dismissed because it was shown that the defendant had been adjudged insane subsequent to the dSRe of the alleged desertion and prior to the expiration of one year from such date. The bill alleged, and the evidence sho14d, that the Pollards were married on April 19, 1941; that they lived together for six years, during which time the complainant was a dutiful husband; that the defendant deserted the complainant on January 28, 1947, without just cause or excuse; that the desertion had continued uninterrupted since that date; tyQt on February 26, 1947, the defendant was adjudged insane and was committed to Central State Hospital at Petersburg, where she was still confined when the case was heQGd. The evidence further showed that the defendant displayed no signs of mental illness at the time she left the complainant on January 28, 1947. Prior to the enactment, in 1926, of what is now Code, \| 20 - 93, it was the law in this state that when a defendant in a divorce case became and was adjudged insane between the SaHe of desertion and the running of the statutory period prescribed to make the ground for divorce complete, such insanity was a bar to the granting of a divorce. We had so held in Wright Wright, 125 Va. 526, 99 S. E. 515, decided June 12, 1919, where it was stated that the reason for the rule was that, " an insane person is incapable of forming the intent, either to continue the desertion or to seek a reconciliation. " 125 Va. , at pp. 528, 529. In the Wright case, Judge Prentis conceded that the rule there enunciated would, in some cases, cause undue hardship. He said, however, that, " [if] there be hardship, the question is one of public policy for the consideration of the General Assembly. " 125 Va. , at p. 529. The legislature, perhspx motivated by the cases of hardship pointed to by Judge Prentis but, in any event, in sound consideration of public policy, saw fit to change the rule adopted in the Wright case. In * 318 clear and unambiguous language it provided that insanity, occurring between the commencement of desertion and the running of the statutory period, is not a bar to divorce for wilful desertion or abandonment. A defense based upon such insanity, previously provided by judicial rule was, by legislative rule, des/ared no longer to exist. Now, when desertion occurs and continues uninterrupted for one year the ground of divorce is complete, notwithstanding that the defendant meanwhile has become and has been adjudged insane. It is the duty of the courts to recognize and give effect to such a legislative rule. In the case before us, the evidence was sufficient to sustain the complainant ' s ground for divorce, and it was error to refuse him a decree because the defendant became and was asj6dged insane in the one - year period following the desertion. Accordingly, the decree will be reversed and the cause remanded with direction to enter a decree awarding the complainant a divorce from the defendant for wilful desertion and abandonment for more than one year. Reversed and remanded.	204 316 (1963) LESTER POLLARD v. ELIZABETH SMITH Record No. 5548. Supreme of Virginia. April 1963. William Davis Butts, on brief for appellant. Present, All the Justices. Lester Pollard's bill for divorce on the ground of desertion by his Elizabeth Pollard was dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion. The evidence showed the desertion without cause on January 28, 1947; the adjudication of insanity on February 26, 1947; and that defendant had given no indication of insanity prior to the date of the desertion. On this evidence it was error to refuse the divorce. Code 1950, 20-93, changes the rule of the cases in such situations and expressly that insanity so occurring is no defense to a for divorce the spouse. Appeal from a decree of the Circuit Court of the city of Hampton. Hon. Frnk A. Kearney, judge presiding. The opinion states the case. Alfred Smith, on brief for the appellee. Case submitted on briefs. CARRICO CARRICO, opinion of the court. In this divorce case we for first time, presented the question the Code, \| 20-93, pertinent provisions which "Insanity of party after commencement desertion no -- When the suit is for divorce from the bond of matrimony for wilful desertion abandonment, it shall be no defense that the 317 guilty party has, the commencement of such desertion, and within one thereafter, become and has been adjudged insane, but at the expiration of one year the commencement of such desertion the ground for divorce shall be deemed to be complete. . . ." The question here presented arises from an appeal granted Lester Pollard, the complainant, from a final decree dismissing his bill of complaint for divorce, wilful desertion and abandonment, filed against Elizabeth Smith Pollard, the defendant. The bill was dismissed because it was shown that the defendant had been adjudged insane subsequent to the of the alleged and prior to expiration of one year from such date. bill and the evidence showed, that Pollards married on April 19, 1941; that together for six years, during which time the complainant was a dutiful husband; that the deserted the complainant on January 1947, without just cause or excuse; that the had continued uninterrupted since that date; that on February 26, 1947, the defendant was adjudged insane and was committed to Central State Hospital Petersburg, she was still confined when the case was The evidence further showed that the defendant displayed no signs of mental illness she the complainant on January 28, 1947. Prior to the enactment, in 1926, of is now Code, \| 20-93, it the law in this state that when a in divorce case became and was adjudged insane between the date of desertion and the running of the statutory period prescribed to make ground for complete, such insanity was a to the granting of a divorce. We had so held in Wright Wright, 125 526, 99 S.E. 515, decided June 12, 1919, where it was stated that the reason for the rule was that, "an insane person is incapable of forming the intent, to continue the desertion or to seek a reconciliation." 125 Va., pp. 528, 529. In the Wright case, Judge Prentis conceded that rule there enunciated would, in some cases, cause undue hardship. He said, however, that, "[if] there be hardship, the question is one of policy for the consideration of the General Assembly." Va., at p. 529. The legislature, perhaps motivated by the cases of hardship pointed to by Judge Prentis but, in any event, in sound consideration of public policy, saw fit to change the rule in the Wright case. In 318 clear and unambiguous language it provided that insanity, occurring between the commencement of desertion and the running of the statutory period, is not a bar to divorce for wilful desertion or abandonment. A defense based upon previously by judicial was, by legislative declared longer to exist. when desertion occurs and continues for one year the ground of divorce is complete, notwithstanding that the defendant has become and has been adjudged insane. It is the duty of the courts to and give effect to such a legislative rule. In the case before us, the evidence was to sustain the complainant's ground for divorce, and it was error to refuse a decree because the defendant became and was adjudged insane in the one-year period following desertion. Accordingly, the decree be reversed and the cause remanded with direction to enter decree awarding the complainant a divorce the for wilful desertion and abandonment for more than one year. Reversed and remanded.	204 vA. 316 (1963) LESTer pOLLARD v. eLIZAbeTH SmiTh pollARd. rECOrd no. 5548. suPREMe cOUrT OF ViRginIA. aPrIl 22, 1963. wIlliaM DaVIS butTS, ON BrIEf for the ApPeLlaNt. PreseNt, ALl ThE JuStIceS. lEsTer PollArd's biLL FoR divoRCE On thE gROuND Of WiLFuL dEseRTION By HIs WIFe ElIZabeTH PolLard WAs DIsMISSEd bEcaUsE it wAs sHOwn tHat sHe bEcAmE anD Was ADjUDgED INSane afteR THe DAte oF tHE AlLEGeD DEsErTiON. the EVidenCE sHoWeD THE deSErTIoN WItHout CAuse on jaNUarY 28, 1947; the ADjUDiCaTion OF inSanITY on fEbrUArY 26, 1947; And That DEFenDANt Had giVeN NO iNDiCaTiON OF inSAniTy prior to the DatE OF tHE DEsERtIoN. ON THIs eVIDeNCE It WaS Error TO Refuse ThE DIvOrce. COdE 1950, SECTiOn 20-93, cHangEs ThE pRIOR rulE of thE caSeS In SUCH siTUaTIONS AnD exPReSSly sTAtes ThAt INSanItY So OCCuRRing iS nO Defense tO A bILL FoR DivORCe bY tHE deSeRTeD sPouSe. AppeAl fROm A deCReE of tHe CIRCUit coURT of THE cIty OF HaMPtON. hon. frnK a. KEarney, JuDge PrESiDiNG. THE oPiniON sTAteS tHE case. WILLiam aLFReD sMitH, oN bRief For The ApPElLEE. cASE submitTEd ON BriEFs. cARRicO carRICo, j., dELIVerEd tHe OPiNIoN OF thE cOurT. in ThIs divORcE CaSe WE ArE, FOr thE FiRSt tIME, prESENteD ThE QuesTiOn of tHE applICatioN Of cODE, \| 20-93, tHe PertINent PRovIsions OF which ArE as FOLLoWS: "inSAniTy Of gUiLTY PaRTY AFter ComMEnceMEnT OF DesErtIOn nO DEFeNSe. -- WHEn THE suIt Is FoR DIvOrCE fRoM The boND oF Matrimony FOr WilFul DeseRTioN OR ABanDoNment, it shaLL bE No dEfensE thAT THe 317 GuiLtY pArty Has, SiNcE tHe COmmEncEMeNt OF such DESertioN, AND WIthIn oNe YEAR tHerEaFtEr, BECOMe aNd haS BeEN aDjUdGed iNsane, bUt AT tHE EXPIRATioN oF one YeAR fROM the COmmENcemenT of suCH DeSeRtIoN tHe groUNd FOr dIVOrCe shall Be DEeMed TO BE cOmPLETe. . . ." THe qUEsTiOn HErE PreSeNtEd arIseS FROm aN appEAl gRanTed LesTer POLlARd, ThE CoMPlaiNaNt, from A fINal DeCrEE DIsmIssiNg his biLl oF COmpLAiNt FoR divOrCE, alleGInG wIlFul DeseRTion ANd AbANDoNmENt, FIleD aGainst ELizabEth SMiTH poLLARD, THe DEfeNdANT. tHe bILL was dIsmISseD BecauSe it WAs SHOwn THaT The DeFenDanT HAd BeEN AdJuDGED INsanE sUBSequEnt To THe DAtE OF The ALlEGED dEseRTiOn AnD PRiOR to ThE ExpiRAtion OF ONE yeAR FRom SUCH daTE. The bill aLLeged, aNd ThE EvidenCe showEd, thAt THE pOllArds WERe MArried on aprIL 19, 1941; THat THEY LiVeD TOGETHeR FOR SIX years, duRiNG wHIcH tiMe tHE CoMPLainanT WAs A duTIFul hUSbAnD; thaT the DefEnDanT DesERted THE CompLainaNT on jANuary 28, 1947, WITHOUt JuSt cauSE Or excuSe; ThAT thE DEsERTION haD CONTINuED UninterRUPTEd sIncE THat dAtE; THaT oN FebRuARY 26, 1947, The defeNDAnT WaS adjuDged InsanE AnD wAs cOmMitTED To CENTral sTate hosPitaL AT pETeRsBUrg, WHere she was sTIlL ConFined WHEn tHe casE WAS hEArd. The EVidENCE FuRtHEr SHowED ThAT thE DEFendANT dISPLAyED No sIGns OF MEnTal IlLneSs AT the TIMe she LEFt THE ComPLainant oN JaNuaRY 28, 1947. PRiOr tO tHe eNacTMENT, iN 1926, oF whaT iS NOw COde, \| 20-93, iT wAs The LaW In THis state ThaT wHEN a dEfeNdaNt In a dIVORCE casE bEcAMe aND wAS AdJuDgED InSANe BETWeEN ThE Date of desERTIon ANd tHe RUnnING Of ThE STATUTOrY peRiod prEscRIbED tO maKE The ground fOR DIVOrCE cOMpLeTe, SuCH iNsanItY WaS A BaR tO THE gRAntINg OF a DiVoRCE. WE HaD sO heLD IN WriGHT WrigHt, 125 vA. 526, 99 s.E. 515, dECidED jUne 12, 1919, wHere It WaS StaTeD THat THE reAsOn foR tHe RULe WAS THAt, "aN insANe pERsoN is InCApABlE Of formiNg THE InTEnT, EITher tO ContiNue tHe deSErtION OR TO seeK A rEConciliaTIOn." 125 vA., aT pP. 528, 529. iN thE WRIght cAsE, juDgE PreNTIS CONceDEd that thE ruLE thERE EnunCiATEd wOUld, IN SOmE casES, cAuSE UNdUE harDSHiP. he said, HoWEvEr, THAt, "[IF] TheRE bE hARdSHip, tHE QueStiOn Is OnE oF PUbLiC poLicy FoR THE coNSIDeRAtiON OF the genEraL ASsEmBly." 125 Va., At p. 529. ThE legiSlATUrE, PErhApS MotivaTed by the CaSeS OF HarDSHIp pOiNteD To By jUDgE PRENtIS but, in Any evEnt, IN SoUND ConsiDEraTiOn oF pUblIC PolIcy, sAw fIT tO ChangE ThE rUle aDoPteD IN tHE WRIGHT cAsE. In 318 ClEAR AND unamBIgUOUS lAngUAge IT pRoVIDeD ThAt INSANiTY, oCcurring betweEn The cOmMEncement Of desERTIoN AnD ThE runnING Of The staTutOry pERIod, Is NoT a BAR tO dIVOrcE foR wiLFuL DESErtIOn or aBAndONmEnt. a dEFENse BAseD uPon such iNSANITy, PreViouSly PRoVidED By jUDIcIAL ruLe was, by legIslatIvE rule, deCLAReD NO lOngER To exISt. NoW, WHEn dEseRtioN occurs And cOntInUES UNIntERrUPTED For one YeaR the GROUNd OF dIVORcE is coMplete, nOTWitHsTanDING ThaT thE DefENdAnT MEAnWHilE haS BEcomE aND HaS BeEN adJuDged InsAne. It iS thE DuTy OF tHE COURtS TO ReCogNIZE And Give EFFEct To sUCh a LegIslATIve ruLE. in The Case BEfoRE uS, the EVidenCe waS SUfFIcIEnT tO sUsTain thE ComPLaINANt's GRoUnD FOR DivOrcE, anD IT WaS ErroR TO REfuse Him a DEcrEe BEcAUSe the deFENdANT beCamE anD WAS adJuDged iNSANE IN tHE oNE-YEaR PerioD folLOWing the DEserTIoN. aCCoRDiNglY, The dEcrEe WiLL bE rEVERsED And tHE CaUSe RemAnded wITh DiRECTioN To Enter a deCrEE aWarDiNG tHe coMpLAInAnt A DIvOrcE FRoM THE DEFENdANT FOr WILfUl DeSErtiON and ABAnDONMent foR MoRe THan oNE YEAr. reVErSed AND REmaNDed.	204 Va. 316 (1963) LESTER POLLARD v. ELIZABETH SMITH POLLARD. Record No.5548. SupremeCourtof Virginia. April 22,1963. William Davis Butts, on brief for the appellant. Present, All the Justices. Lester Pollard's bill for divorce on the ground of wilful desertion by his wifeElizabeth Pollardwas dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion.The evidence showed the desertion without causeon January 28, 1947; the adjudication of insanity on February 26, 1947; and that defendanthad given no indication of insanity prior to the date of the desertion. On this evidence it was error to refuse the divorce. Code 1950,section 20-93, changes theprior rule of the cases in such situations and expressly states thatinsanity so occurringis no defense to abill for divorce by the deserted spouse.Appeal froma decree of the Circuit Court of the city of Hampton. Hon. Frnk A. Kearney, judge presiding. The opinion states the case. William Alfred Smith, on brief for the appellee. Case submitted on briefs. CARRICO CARRICO, J., delivered the opinion of the court. In thisdivorce case we are, forthe first time, presented the question of the application of Code,\| 20-93, thepertinent provisions ofwhich areas follows: "Insanity of guilty party aftercommencement of desertion no defense. -- When the suit isfor divorce from the bond of matrimonyforwilful desertion or abandonment,it shallbe no defense that the317guilty party has, since the commencement of suchdesertion, and within one year thereafter, become and hasbeen adjudged insane, butat the expirationofone year from the commencement of such desertion the ground for divorceshall be deemed to be complete. . . ." The question here presented arisesfrom an appeal granted LesterPollard, the complainant, from a final decree dismissing his bill ofcomplaint for divorce, alleging wilful desertion and abandonment, filed against Elizabeth Smith Pollard,the defendant. The bill was dismissed because it was shown that the defendant had been adjudged insane subsequent to the dateof the alleged desertion and prior to the expiration of one year from such date. Thebill alleged,and the evidence showed,thatthe Pollards were married on April19, 1941; thatthey lived together forsix years,during which time the complainant was adutiful husband; thatthe defendant deserted the complainant on January 28, 1947, without just causeor excuse; that thedesertionhad continued uninterrupted since that date; that on February26, 1947, thedefendant was adjudged insane and wascommittedto Central State Hospital at Petersburg, whereshe was still confined when thecase was heard.The evidence further showed thatthe defendant displayed no signs ofmental illness at the time she left the complainant on January 28, 1947. Prior to the enactment, in 1926, of what is now Code, \| 20-93, it was the law in this state that when a defendant in a divorce case became and was adjudged insanebetweenthe date of desertion and the running of the statutory periodprescribed to make the ground for divorce complete, such insanity was a barto the granting of a divorce. We had so held in Wright Wright, 125 Va. 526, 99S.E. 515, decided June 12, 1919, where it was stated thatthe reason forthe rule wasthat, "aninsane person is incapableof forming the intent, eitherto continue the desertion or to seek areconciliation." 125 Va., at pp. 528, 529. In the Wright case, Judge Prentis conceded that the rule there enunciated would,in some cases,cause undue hardship. He said, however, that, "[if]there be hardship, the question is one of public policy for the consideration of the General Assembly." 125 Va., at p. 529. The legislature, perhaps motivated by the casesof hardship pointed tobyJudge Prentis but, in any event, in sound consideration of public policy, sawfitto change therule adopted in theWright case. In 318 clear and unambiguous language it provided that insanity, occurringbetween the commencement ofdesertion and therunning of the statutory period, is nota bar to divorce for wilful desertionor abandonment. A defense based upon such insanity, previously provided by judicial rule was, bylegislative rule, declaredno longer to exist. Now, when desertionoccursand continues uninterruptedfor one year the ground of divorce is complete, notwithstanding that the defendantmeanwhile has become andhasbeen adjudged insane.It is the duty of thecourts to recognize andgive effect to such a legislative rule. In the casebefore us, the evidence was sufficient to sustain the complainant's ground for divorce, and it was error to refusehim a decree becausethedefendant became and wasadjudged insane inthe one-yearperiod followingthedesertion. Accordingly, the decree willbe reversedand the cause remandedwith direction to enter a decree awarding the complainant a divorce from thedefendant for wilfuldesertion and abandonment for more than one year. Reversed and remanded.	204 Va. 316 _(1963)_ _LESTER_ POLLARD v. ELIZABETH SMITH _POLLARD._ Record No. 5548. _Supreme_ Court _of_ Virginia. April 22, 1963. William Davis Butts, on _brief_ for the appellant. Present, _All_ the Justices. Lester Pollard's bill for divorce on the ground of wilful desertion by his wife Elizabeth Pollard was dismissed because it _was_ shown that she became _and_ was adjudged insane after the _date_ of the alleged desertion. The evidence _showed_ the desertion without cause on January 28, 1947; the adjudication of _insanity_ on February 26, 1947; and that defendant had given no indication _of_ _insanity_ prior to the date of _the_ _desertion._ _On_ this evidence it was error _to_ refuse the divorce. Code 1950, _section_ _20-93,_ changes the _prior_ rule of _the_ cases in such situations and expressly _states_ _that_ _insanity_ so occurring is _no_ defense to a _bill_ for divorce by the deserted spouse. Appeal from _a_ decree of the Circuit Court of the city of Hampton. Hon. Frnk _A._ _Kearney,_ _judge_ presiding. The opinion _states_ the case. William Alfred Smith, on brief for the appellee. _Case_ _submitted_ on briefs. CARRICO CARRICO, J., delivered the opinion of the court. In this divorce case we are, for the _first_ _time,_ _presented_ _the_ question _of_ the application of Code, \| _20-93,_ the pertinent provisions of which are as follows: "Insanity of guilty party _after_ commencement of _desertion_ no defense. _--_ When the suit is _for_ divorce from the bond of matrimony for wilful desertion or abandonment, it _shall_ _be_ no defense _that_ the 317 guilty party _has,_ _since_ _the_ commencement of such desertion, and within _one_ year thereafter, become and has been _adjudged_ insane, but _at_ the _expiration_ _of_ one year from the commencement of such desertion the _ground_ for divorce shall be deemed to be complete. . . ." The _question_ here _presented_ arises from an appeal _granted_ Lester _Pollard,_ _the_ complainant, from a final _decree_ _dismissing_ his _bill_ _of_ complaint for divorce, alleging _wilful_ _desertion_ and abandonment, filed against Elizabeth Smith Pollard, the defendant. _The_ bill was dismissed because it was shown that the _defendant_ had been adjudged insane subsequent to the date of _the_ _alleged_ desertion _and_ prior to the expiration of _one_ _year_ from such _date._ The bill alleged, and _the_ evidence showed, that _the_ Pollards were married on April 19, _1941;_ that _they_ lived together for six years, during which time the complainant was a dutiful _husband;_ that the defendant deserted the complainant _on_ January 28, 1947, without _just_ cause or excuse; that _the_ desertion had _continued_ uninterrupted since that _date;_ that on February 26, 1947, the defendant _was_ adjudged insane and was _committed_ to _Central_ _State_ _Hospital_ at Petersburg, where she was still confined when the case was heard. _The_ evidence _further_ showed _that_ the defendant _displayed_ no signs of mental illness _at_ the time she left the complainant on January 28, _1947._ Prior to the enactment, in 1926, of what is now Code, \| _20-93,_ it was the law _in_ this _state_ that when a defendant in _a_ divorce case became and _was_ adjudged insane between the date of desertion and the running of the statutory period prescribed to _make_ the _ground_ for divorce complete, such insanity was _a_ _bar_ to the granting of _a_ divorce. _We_ had so held in Wright Wright, 125 _Va._ 526, _99_ S.E. _515,_ decided June 12, _1919,_ where _it_ was stated that the reason for the rule was that, _"an_ insane person is incapable of forming the intent, _either_ to continue the desertion _or_ to _seek_ a reconciliation." 125 Va., at _pp._ _528,_ 529. _In_ the _Wright_ case, Judge Prentis conceded that _the_ _rule_ there _enunciated_ _would,_ in _some_ _cases,_ _cause_ undue hardship. _He_ said, however, _that,_ _"[if]_ _there_ be hardship, the question is _one_ of public policy for the consideration of _the_ General Assembly." 125 Va., at p. 529. The legislature, _perhaps_ motivated by the cases _of_ hardship _pointed_ to by Judge Prentis but, in _any_ event, in sound consideration of public policy, saw _fit_ to change the rule _adopted_ in the Wright case. In _318_ clear and unambiguous language it provided that insanity, occurring between the commencement _of_ _desertion_ and the running of the statutory period, is not a bar to _divorce_ for wilful desertion or abandonment. A defense based upon such _insanity,_ _previously_ _provided_ by _judicial_ rule _was,_ by legislative _rule,_ _declared_ no _longer_ to _exist._ Now, when desertion occurs and continues _uninterrupted_ for one year _the_ _ground_ of divorce is complete, notwithstanding that the defendant _meanwhile_ has become and has been adjudged insane. It is the _duty_ of _the_ courts _to_ recognize and give effect to such a _legislative_ rule. In the case before us, the evidence was sufficient _to_ _sustain_ the complainant's _ground_ for _divorce,_ and it _was_ error to refuse him _a_ _decree_ because the defendant became and was _adjudged_ insane in the one-year period following _the_ desertion. _Accordingly,_ _the_ decree will be reversed and _the_ _cause_ remanded _with_ direction to enter a decree awarding the complainant a divorce _from_ the defendant _for_ wilful desertion and abandonment for more than one year. Reversed and remanded.
636 F.2d 761 205 U.S.App.D.C. 53 UNITED STATES of Americav.Bernard GIBSON, Appellant.UNITED STATES of Americav.Deborah Y. HAGANS, Appellant. Nos. 80-1225, 80-1228. United States Court of Appeals,District of Columbia Circuit. Argued Sept. 25, 1980.Decided Nov. 24, 1980. Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-00552). Patrick J. Christmas, Washington, D. C., for Bernard Gibson. James H. Craddock, Washington, D. C., (appointed by this Court) for Deborah Y. Hagans. Charles W. Brooks, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Before ROBINSON, WILKEY and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: 1 Defendants Gibson and Hagans appeal from a conviction for possession of heroin with intent to distribute. The appeal raises four issues: the legality of two searches conducted at the time of arrest and the propriety of two evidentiary rulings made by the district court. I. Facts 2 Officer Haskins, an officer regularly assigned to narcotics investigations, was stationed at a third floor window of an apartment building in an area where residents had complained about narcotics transactions. He observed a Cadillac Seville carrying four persons pull into a parking lot adjoining the building and park "almost right up against the building." Transcript at 14. Haskins estimated that he was between thirty and forty-five feet from the occupants of the car. Using binoculars, Haskins observed this sequence of activity: defendant Gibson, seated in the driver's seat, counted out numerous glassine packets containing a white substance; defendant Hagans, seated behind Gibson, passed Gibson a sum of money; Gibson put most of the money and one of the packets into a black purse and gave the remaining money and packets to Hagans; Gibson then placed the black purse between the armrests of the front seat of the car. 3 Shortly thereafter, Haskins, joined by back-up officers, approached the car, identified himself, and ordered the four occupants from the car.1 While other officers held Gibson and searched Hagans, Haskins took the black purse from the car. He opened it and found $1325 and two packets of white powder, later identified as heroin. After arresting Gibson and Hagans, Haskins searched the trunk of the car and found a "partially opened" brown paper bag. Transcript at 32. He opened the bag further and removed from it two large vials of preludin pills. Meanwhile, officers had found sixteen packets of heroin and $60 on defendant Hagans and $561 on defendant Gibson. 4 The government charged Gibson and Hagans with possession of heroin and Gibson with possession of the preludin pills. The defendants moved to suppress the evidence found in the black purse and paper bag. After the district court denied the motion, the defendants agreed to a stipulated trial without a jury. The government in turn dismissed all charges except the charge of possession of heroin with intent to distribute. The district court found both defendants guilty of that charge. II. Fourth Amendment Issues 5 Defendants attack the searches of both the black purse and the paper bag. Since the contents of the paper bag related solely to the charge against Gibson that was dismissed, we need not address the legality of that search. The two vials of preludin pills could not have contributed to the defendants' convictions for heroin possession. Thus the failure to suppress, even if erroneous, was not prejudicial. 6 Seizure of the black purse from the car was permissible under the automobile exception to the warrant requirement. Under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and our own decision in United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979), the police could choose either to detain the car while seeking a warrant or to search the car immediately. 7 Defendants argue, however, that once the purse was seized, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), mandated a warrant prior to police search of the purse's interior. We pretermit that argument, because the search was justified on other grounds. Officer Haskins testified that he observed Gibson putting packets containing a white substance into the black purse. This observation, we conclude, brings the case within the court's "plain view" holding in United States v. Johnson, 561 F.2d 832 (D.C.Cir.) (en banc ), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977). 8 As a threshold matter, we note that Officer Haskins' use of binoculars to observe the activity in the car did not violate the Fourth Amendment. The car in which defendants were observed was parked in an open lot alongside an apartment building. Anyone happening along the street could have glanced into the car and observed the narcotics transaction.2 A person at any of the windows on the side of the building at which Officer Haskins was stationed might have looked into the car.3 Situated as they were, the defendants "had no right to assume that law enforcement officers would not enhance their ability to see ... them by use of various artificial means such as binoculars." United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). See United States v. Powell, 638 F.2d 71, (9th Cir. 1979) (amended Jan. 29, 1980) (upholding a conviction based in part on the actions of an officer who, standing 20-25 yards from a truck, used binoculars to peer into the truck).4 9 Officer Haskins' lawful observation of Gibson placing glassine packets in the black purse, and the police action taken within minutes thereafter make the instant case clearer than the one the court confronted en banc in Johnson, supra. There, a police officer, peering through the basement window of a residence, saw three men seated at a table holding narcotics paraphernalia and "a pyramid of white powder eight to ten inches high." 561 F.2d at 835. The officer returned forty minutes later with other officers and entered the house without a warrant. The three men were arrested, but the narcotics were no longer in sight. The officers thereupon searched the basement and eventually found bundles of narcotics between mattresses on a bed and in a canvas bag concealed in an old rug. The en banc opinion in Johnson concentrated on the questions whether the officer was trespassing when he looked through the basement window and whether, since there was a forty minute delay before entering the house, the officers should have obtained a warrant. Resolving those questions against the defendants, Judge McGowan, writing for the court, turned finally to the warrantless search of the basement. He reasoned that "the police ha(ving) seen a crime actually in progress with contraband in plain view ... they were fully authorized both to make arrests and to seek out the contraband." Id. at 844. Thus the search power could be "viewed as incident to arrest, or as deriving independently from the initial observation of the contraband." Id. at 845. 10 The instant case presents neither of the features that made Johnson problematic. No considerable time span separated the sighting of the packets from the search. Rather, the search followed on the heels of the observation. No extensive quest was involved. Officer Haskins proceeded at once to the place where the packets rested.5 In sum, guided as we are by the Johnson opinion, we find no error in the failure to suppress the evidence found in the black purse. III. Evidentiary Rulings 11 Defendant Hagans attacks two of the district court's evidentiary rulings; both challenges are meritless. 12 First, Hagans complains that Larry Kenan, a lay witness for defendants, was not allowed to testify that in his opinion he could not have seen into the interior of the car if he had been standing at a second story window using binoculars. Kenan and defendant Gibson had attempted to recreate the circumstances surrounding the arrest in an effort to show that Officer Haskins could not have seen into the car carrying Gibson and Hagans. The two went to a second story window of the building in which Haskins had been stationed, made observations, and took pictures. They did not, however, take along binoculars. Kenan was allowed to testify about	636 f. 2d 761 205 u. s. app. d. c. 53 united states of americav. bernard snyder, appellant. united states of americav. deborah y. hagans, appellant. nos. 80 - 1225, 80 - 1228. united states court of appeals, district of congress circuit. argued sept. 25, 1980. decided nov. 24, 1980. appeal from the united states district court for the district of columbia ( d. c. criminal no. 79 - 00552 ). judge j. christmas, washington, d. c., for bernard gibson. james h. craddock, washington, d. c., ( appointed by this court ) for deborah y. hagans. charles w. brooks, asst. m. s. atty., with whom charles f. c. ruff, u. s. atty., john a. terry, michael w. farrell and james f. rutherford, asst. v. s. attys., washington, d. c., were on the brief, for appellee. before robinson, wilkey and ginsburg, circuit judges. opinion for the court filed by circuit judge ginsburg. ginsburg, circuit judge : 1 judge gibson assisted hagans appeal from a conviction for possession of heroin with intent to distribute. the appeal raises four issues : probable legality of two searches conducted at the time of arrest and the propriety of two evidentiary rulings made by the district court. i. facts 2 officer haskins, an officer regularly assigned to narcotics investigations, was stationed at a third floor window of an apartment building in an area where residents had complained about narcotics transactions. he observed a cadillac seville carrying four persons pull into a parking lot adjoining the building and park " almost right up against the building. " transcript at 14. haskins estimated that victim was between thirty and forty - five feet from the occupants of the car. using binoculars, haskins observed this sequence of activity : defendant gibson, seated in the driver ' s seat, counted out numerous glassine packets containing a white substance ; defendant hagans, seated behind simpson, passed gibson a sum of money ; gibson put most of the money and one of the packets into a black purse and gave the remaining money and packets to hagans ; gibson then placed the black purse between the armrests of the front seat of the car. 3 shortly thereafter, haskins, joined by back - up officers, approached the car, identified himself, and ordered the four occupants from the car. 1 while other officers held gibson and searched hagans, haskins took the black purse from the car. he opened it and found $ 1325 and two packets of white powder, later identified as heroin. after arresting gibson and hagans, haskins searched the trunk of the car and found a " partially opened " brown paper bag. transcript at 32. he opened the bag further and removed from it two large vials of preludin pills. meanwhile, officers had found sixteen packets of heroin and $ 60 on defendant hagans and $ 561 on defendant gibson. 4 the government charged gibson and hagans with possession of heroin and gibson with possession of the preludin pills. the defendants moved to suppress the evidence found in the black purse and paper bag. after the district court denied the motion, the defendants agreed to a stipulated trial without a jury. the government in turn dismissed all charges except the charge of possession of heroin with intent to distribute. the district court found both defendants guilty of that charge. ii. fourth amendment issues 5 defendants attack the searches of both the black purse and the paper bag. since the contents of the paper bag related solely to the charge against gibson that was dismissed, we need not address the legality of that search. the two vials of preludin pills could not have contributed to the defendants ' convictions for heroin possession. thus the failure to suppress, even if erroneous, was not prejudicial. 6 seizure of the black purse from the car was permissible under the automobile exception to the warrant requirement. under chambers v. maroney, 399 u. s. 42, 90 s. ct. 1975, 26 l. ed. 2d 419 ( 1970 ), and our own decision in united states v. hawkins, 595 f. 2d 751 ( d. c. cir. 1978 ), cert. denied, 441 u. s. 910, 99 s. ct. 2005, 60 l. ed. 2d 380 ( 1979 ), the police could choose either to detain the car while seeking a warrant or to search the car immediately. 7 defendants argue, however, that once the purse was seized, arkansas v. sanders, 442 u. s. 753, 99 s. ct. 2586, 61 l. ed. 2d 235 ( 1979 ), mandated a warrant prior to police search of the purse ' s interior. we pretermit that argument, because the search was justified on other grounds. officer haskins testified that he observed gibson putting packets containing a white substance into the black purse. this observation, we conclude, brings the case within the court ' s " plain view " holding in united states v. johnson, 561 f. 2d 832 ( d. c. cir. ) ( en banc ), cert. denied, 432 u. s. 907, 97 s. ct. 2953, 53 l. ed. 2d 1080 ( 1977 ). 8 as a threshold matter, we note that officer haskins ' use of binoculars to observe the activity in the car did not violate the fourth amendment. the car in which defendants were observed was parked in an open lot alongside an apartment building. anyone happening along the street could have glanced into the car and observed the narcotics transaction. 2 a person at any of the windows on the side of the building at which officer haskins was stationed might have looked into the car. 3 situated as they were, the defendants " had no right to assume that law enforcement officers would not enhance their ability to see... them by use of various artificial means such as binoculars. " united states v. moore, 562 f. 2d 106, 112 ( 1st cir. 1977 ), cert. denied, 435 u. s. 926, 98 s. ct. 1493, 55 l. ed. 2d 521 ( 1978 ). see united states v. powell, 638 f. 2d 71, ( 9th cir. 1979 ) ( amended jan. 29, 1980 ) ( upholding a conviction based in part on the actions of an officer who, standing 20 - 25 yards from a truck, used binoculars to peer into the truck ). 4 9 officer haskins ' lawful observation of gibson placing glassine packets in the black purse, and the police action taken within minutes thereafter make the instant case clearer than the one the court confronted en banc in johnson, supra. there, a police officer, peering through the basement window of a residence, saw three men seated at a table holding narcotics paraphernalia and " a pyramid of white powder eight to ten inches high. " 561 f. 2d at 835. the officer returned forty minutes later with other officers and entered the house without a warrant. the three men were arrested, but the narcotics were no longer in sight. the officers thereupon searched the basement and eventually found bundles of narcotics between mattresses on a bed and in a canvas bag concealed in an old rug. the en banc opinion in johnson concentrated on the questions whether the officer was trespassing when he looked through the basement window and whether, since there was a forty minute delay before entering the house, the officers should have obtained a warrant. resolving those questions against the defendants, judge mcgowan, writing for the court, turned finally to the warrantless search of the basement. he reasoned that " the police ha ( ving ) seen a crime actually in progress with contraband in plain view... they were fully authorized both to make arrests and to seek out the contraband. " id. at 844. thus the search power could be " viewed as incident to arrest, or as deriving independently from the initial observation of the contraband. " id. at 845. 10 the instant case presents neither of the features that made johnson problematic. no considerable time span separated the sighting of the packets from the search. rather, the search followed on the heels of the observation. no extensive quest was involved. officer haskins proceeded at once to the place where the packets rested. 5 in sum, guided as we are by the johnson opinion, we find no error in the failure to suppress the evidence found in the black purse. iii. evidentiary rulings 11 defendant hagans attacks two of the district court ' s evidentiary rulings ; both challenges are meritless. 12 first, hagans complains that larry kenan, a lay witness for defendants, was not allowed to testify that in his opinion he could not have seen into the interior of the car if he had been standing at a second story window using binoculars. kenan and defendant gibson had attempted to recreate the circumstances surrounding the arrest in an effort to show that officer haskins could not have seen into the car carrying gibson and hagans. the two went to a second story window of the building in which haskins had been stationed, made observations, and took pictures. they did not, however, take along binoculars. kenan was allowed to testify about	636 F. 2d 761 205 U. S. App. D. C. 53 UNITED STATES of Amf5icav. Bernard GIBSON, Appellant. UNITED STATES of Americav. Deborah Y. HAGANS, Appellant. Nos. 80 - 1225, 80 - 1228. United States Court of Appeals, Dis$rjct of Columbia Circuit. Argued Sept. 25, 1980. Decided Nov. 24, 1980. Appeal from the United States District Court for the District of Columbia (D. C. Criminal No. 79 - 00552 ). Patrick J. Christmas, Washington, D. C. , for Bernard Gibson. James H. Craddock, Washington, D. C. , (appointed by this Court) for Deborah Y. Hagans. Charles W. Brooks, Asst. U. S. Atty. , with whom Charles F. C. Ruff, U. S. Atty. , John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys. , Washington, D. C. , were on the brief, for appellee. Before ROBINSON, WILKEY and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: 1 Defendants Gibson and Hagans appeal from a conviction for possession of heroin with intent to distribute. The appeal raises four issues: the legality of two searches conducted at the time of arrest and the propriety of two evidentiary rulings made by the district court. I. Facts 2 Officer Haskins, an officer regularly assigned to narcotics investigations, was stationed at a third floor window of an apartment building in an area where residents had complained Qgout narcotics transactions. He observed a Cadillac Seville carrying four persons pull into a parking lot adjoining the building and park " almost right up against the building. " Transcript at 14. Haskins estimated that he was between thirty and forty - five feet from the occupants of the car. Using binoculars, Haskins observed this sequence of activity: defendant Gibson, seated in the driver ' s seat, counted out numerous glassine packets containing a white substance; defendant Hagans, seated behind Gibson, passed Gibson a sum of money; Gibson put most of the money and one of the packets into a black purse and gave the remaining money and packets to Hagans; Gibson then placed the black puFs@ between the armrests of the front seat of the car. 3 Shortly thereafter, Haskins, joined by back - up officers, approached the car, identified himself, and ordered the four occupants from the car. 1 While other officers held Gibson and searched Hagans, Haskins took the black purse from the car. He opened it and found $ 1325 and two packets of white powder, later identified as heroin. After arresting Gibson and Hagans, Haskins searched the trunk of the car and found a " partially opened " brown paper bag. Transcript at 32. He opened the bag further and removed from it two large vials of preludin pills. Meanwhile, officers had found sixteen packets of heroin and $ 60 on defendant Hagans and $ 561 on defendant Gibson. 4 The government charged Gibson and Hagans with possession of heroin and Gibson with possession of the preludin pills. The defendants moved to suppress the evidence found in the black purse and paper bag. After the district court denied the motion, the defendants agreed to a stipulated trial without a jury. The government in turn dismissed all charges except the charge of possession of heroin with intent to distribute. The district court found both defendants guilty of that charge. II. Fourth Amendment Issues 5 Defendants attack the searches of both the black purse and the paper bag. Since the contents of the paper bag related solely to the charge against Gibson that was dismissed, we need not address the legality of that search. The two vials of preludin pills could not have contributed to the defendants ' convictions for heroin possession. Thus the failure to suppress, even if erroneous, was not prejudicial. 6 Seizure of the black purse from the car was permissible under the automobile exception to the warrant requirement. Under Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970 ), and our own decision in United States v. Hawkins, 595 F. 2d 751 (D. C. Cir. 1978 ), cert. denied, 441 U. S. 910, 99 S. Ct. 2005, 60 L. Ed. 2d 380 (1979 ), the police could choose either to detain the car while seeking a warrant or to search the car immediately. 7 Defendants argue, however, that once the purse was seized, Arkansas v. Sanders, 442 U. S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979 ), mandated a warrant prior to police search of the purse ' s interior. We pretermit that zrgum2nt, because the search was justified on other grounds. Officer Haskins testified that he observed Gibson putting packets containing a white substance into the black purse. This observation, we conclude, brings the case within the court ' s " plain view " holding in United States v. Johnson, 561 F. 2d 832 (D. C. Cir.) (en banc ), cert. denied, 432 U. S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1080 (1977 ). 8 As a threshold matter, we note that Officer Haskins ' use of binoculars to observe the activity in the car did not violate the Fourth Amendment. The car in which defendants were observed was parked in an open lot alongside an apartment building. Anyone happening along the street could have glanced into the car and observed the narcotics transaction. 2 A person at any of the windows on the side of the building at which Officer Haskins was stationed might have looked into the car. 3 Situated as they were, the defendants " had no right to assume that law enforcement officers would not enhance their ability to see. .. them by use of various artificial means such as binoculars. " United States v. Moore, 562 F. 2d 106, 112 (1st Cir. 1977 ), cert. denied, 435 U. S. 926, 98 S. Ct. 1493, 55 L. Ed. 2d 521 (1978 ). See United States v. Powell, 638 F. 2d 71, (9th Cir. 1979) (amended Jan. 29, 1980) (upholding a conviction based in part on the actions of an officer who, standing 20 - 25 yards from a truck, used binoculars to peer into the truck ). 4 9 Officer Haskins ' lawful observation of G7Fson placing glassine packets in the black purse, and the police action taken within minutes thereafter make the instant case clearer than the one the court confronted en banc in Johnson, supra. There, a police officer, peering through the basement window of a residence, saw three men seated at a table holding narcotics paraphernalia and " a pyramid of white powder eight to ten ijchfs high. " 561 F. 2d at 835. The officer returned forty minutes later with other officers and entered the house without a warrant. The three men were arrested, but the narcotics were no longer in sight. The officers thereupon searched the basement and eventually found bundles of narcotics between mattresses on a bed and in a canvas bag concealed in an old rug. The en banc opinion in Johnson concentrated on the questions whether the officer was trespassing when he looked through the basement window and whether, since there was a forty minute delay before entering the house, the officers should have obtained a warrant. Resolving those questions against the defendants, Judge McGowan, writing for the court, turned finally to the warrantless search of the basement. He reasoned that " the police ha (ving) seen a crime actually in progress with contraband in plain view. .. they were fully authorized both to make arrests and to seek out the contraband. " Id. at 844. Thus the search power could be " viewed as incident to arrest, or as deriving independently from the initial observation of the contraband. " Id. at 845. 10 The instant case presents neither of the features that made Johnson problematic. No considerable time span separated the sighting of the packets from the search. Rather, the search followed on the heels of the observation. No extensive quest was involved. Officer Haskins proceeded at once to the place where the packets rested. 5 In sum, guided as we are by the Johnson opinion, we find no error in the failure to suppress the evidence found in the black purse. III. Evidentiary Rulings 11 Defendant Hsganc attacks two of the district court ' s evidentiary rulings; both challenges are meritless. 12 First, Hagans c*mp?ains that Larry Kenan, a lay witness for defendants, was not allowed to testify that in his opinion he could not have seen into the interior of the car if he had been standing at a second story window using binoculars. Kenan and defendant Gibson had attempted to recreate the circumstances surrounding the arrest in an effort to show that Officer Haskins could not have seen into the car carrying Gibson and Hagans. The two went to a second story window of the building in which Haskins had been stationed, made observations, and took pictures. YGey did not, however, take along binoculars. Kenan was allowed to testify about	F.2d 761 U.S.App.D.C. 53 UNITED STATES of Americav.Bernard GIBSON, Appellant.UNITED STATES of Y. HAGANS, Appellant. Nos. 80-1225, 80-1228. United States Court of Appeals,District of Columbia Argued Sept. 1980.Decided Nov. 24, 1980. Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-00552). Christmas, Washington, D. Bernard Gibson. James H. Craddock, Washington, D. C., (appointed by this Court) for Deborah Y. Hagans. Charles W. Brooks, Asst. U. S. Atty., with whom F. C. Ruff, U. S. Atty., John A. Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, appellee. Before ROBINSON, WILKEY and GINSBURG, Circuit Judges. for the Court filed by Circuit Judge Circuit Judge: 1 Defendants Gibson and Hagans appeal from a possession of heroin with intent The appeal raises four issues: legality of two searches conducted the time of arrest and the propriety of two evidentiary rulings made by the district court. I. 2 Officer Haskins, an officer regularly assigned to narcotics investigations, was at a third floor window of an apartment building in an where residents had complained about narcotics transactions. He observed a Cadillac Seville carrying four pull into parking lot adjoining the building park "almost right up against the building." Transcript at 14. Haskins estimated that he was between thirty and forty-five feet from the occupants of the car. binoculars, Haskins observed this sequence of activity: defendant Gibson, seated in the driver's seat, out numerous glassine packets containing a white substance; defendant Hagans, seated behind Gibson, passed Gibson a sum of money; Gibson put most of the money and one of into a black purse and gave the remaining money and packets to Hagans; Gibson then placed the between the armrests of the front seat of car. 3 Shortly thereafter, Haskins, joined by back-up officers, the car, identified himself, and ordered the occupants from While other officers held Gibson and searched Haskins took black purse from the car. He opened it and $1325 and two packets of white powder, later identified as After arresting Gibson and Haskins searched the trunk of the car and found a "partially opened" brown paper at 32. He opened the bag further and removed it two large of preludin Meanwhile, officers had found sixteen packets of heroin and $60 on defendant Hagans and $561 on defendant Gibson. 4 The government charged Gibson and Hagans with of heroin and Gibson with possession of the preludin pills. The defendants moved to suppress the evidence found in the black purse and paper bag. After the district court denied the motion, the defendants agreed to a stipulated trial without a jury. The government in turn dismissed all charges except the charge of possession heroin with intent to distribute. The district court found both defendants guilty of that charge. II. Fourth Amendment Issues 5 Defendants attack the both black purse and paper bag. Since the contents of paper bag related solely to against Gibson that dismissed, we need not address the legality of that search. The two vials of preludin pills could not contributed to the defendants' convictions for heroin possession. Thus the failure to suppress, even erroneous, was not prejudicial. Seizure of the black purse from the car was permissible under the automobile to the warrant requirement. Under Chambers 399 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and our own decision in States v. Hawkins, F.2d (D.C.Cir.1978), cert. denied, U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979), the police could choose either to detain the car while seeking a or to search the car immediately. 7 Defendants argue, however, that the purse was seized, Arkansas v. Sanders, U.S. 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), mandated a warrant prior to police search of the purse's interior. We pretermit that argument, search other grounds. Officer Haskins testified that he Gibson putting packets containing a white substance into black This observation, conclude, brings the case within the court's "plain view" holding in United States v. Johnson, 561 F.2d 832 (D.C.Cir.) (en banc ), cert. denied, 432 U.S. 907, 97 S.Ct. 53 L.Ed.2d 1080 8 As a threshold matter, we note that Officer Haskins' use of binoculars to observe the activity in the car did violate the Fourth Amendment. The car in which defendants were observed was parked in an open lot alongside an apartment building. Anyone happening the street could have glanced into the car and observed the narcotics transaction.2 A person at any of windows on the of the building at which Officer was stationed might have looked into the car.3 as they were, the defendants "had no right to assume enforcement officers would enhance their ability to ... them by use of various artificial means such as binoculars." United States v. Moore, F.2d 106, 112 (1st Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). See United States v. Powell, 638 71, (9th Cir. 1979) (amended Jan. 29, 1980) (upholding a conviction based in part on the actions of an officer who, standing 20-25 yards from a truck, binoculars to peer into the truck).4 9 Officer Haskins' lawful observation of Gibson placing glassine packets in the black purse, and the police action within minutes thereafter make the case clearer than the one the court confronted banc in Johnson, supra. There, a police officer, peering through the basement of a residence, saw three men seated at a table holding narcotics paraphernalia and "a pyramid of white eight to ten inches high." 561 F.2d at 835. The officer returned forty minutes later with other officers and entered the house without a warrant. The three men were arrested, but the narcotics were no longer in sight. The officers searched the basement and eventually found bundles narcotics between mattresses on a bed and in a canvas bag concealed in an old rug. The banc opinion in Johnson concentrated on the questions whether the was trespassing when looked through the basement window and whether, since there a forty minute delay before entering the house, the officers should have obtained a warrant. Resolving those questions against the defendants, Judge McGowan, writing for the court, turned to the warrantless search of the basement. He reasoned that "the police ha(ving) seen crime actually in progress with in plain view ... they were fully authorized both to make arrests and to out contraband." Id. at 844. Thus the search power be "viewed as incident to arrest, or deriving independently from initial observation the contraband." at 845. 10 The instant case presents neither of the features that made Johnson problematic. considerable time span the sighting of the packets from the search. Rather, the search followed on the heels of the observation. No extensive quest was Officer Haskins proceeded at once the place where the packets rested.5 In sum, guided as we are by the Johnson opinion, we find no error in the to suppress the found in the black purse. Evidentiary Rulings 11 Defendant Hagans attacks two the district court's evidentiary rulings; both challenges are meritless. 12 First, Hagans complains that Kenan, a lay witness for defendants, was allowed to testify that in his opinion he seen into the interior of the car if had been at a second story window using binoculars. Kenan and defendant Gibson had attempted recreate the circumstances surrounding arrest in an effort to show that Officer Haskins could not have seen into the car carrying Gibson and Hagans. The two went to a second story window of the building which Haskins had stationed, made and took pictures. They did not, however, take along binoculars. Kenan allowed to testify	636 f.2D 761 205 u.s.APP.d.C. 53 United sTATES OF aMerICav.BeRnARd gIBSoN, aPpELlanT.United stATEs Of americaV.DeboRaH y. haganS, apPELlANt. NOS. 80-1225, 80-1228. UNitEd sTATeS COurT oF AppEaLS,dIsTrICt of coLUmbiA ciRcuIT. aRguEd sept. 25, 1980.dECIDed NOV. 24, 1980. ApPeaL fROM tHE uNItED sTates distriCt COURT foR THe dIsTRicT of ColUmBIA (D.c. CRiMInAL No. 79-00552). PATrIck j. ChriStmas, WAShingTon, D. c., fOr beRnaRD gIbSON. jamES h. CrADDOCk, wASHiNGtOn, D. C., (aPpoINteD by tHIs cOURt) fOr deBOraH Y. HagAns. cHArLEs W. BrOOkS, aSSt. U. S. aTty., wITH whoM CHaRles f. C. ruff, U. S. aTTY., joHn A. tERRy, mIChAEL W. fArrell and jAmEs F. RuTHeRFOrd, ASST. U. S. AtTyS., washIngTon, D. c., WEre oN THE BRIef, For APpELLEe. BeFoRe RObiNsOn, WiLKeY anD GInSBuRg, cIrcUIT JUDGeS. oPinion fOr tHE CouRT fIled bY CiRCUIT jUdge ginsbUrG. GInsburg, CIRcuit JudgE: 1 defeNDaNts giBsOn And hAgAnS apPeAL from A CoNvIcTIon foR possESSiON OF HeRoin wiTH IntEnT To DIsTrIbUTE. thE aPPEaL RaisES FoUR ISsuES: THE LEGaLITy oF two SEaRChES cOnDucTeD At ThE timE oF ARreSt aNd thE prOPriETY OF TwO eVideNtiary rULiNgS mAde bY THe disTRiCT cOuRT. i. faCts 2 OFfIceR hASkINS, AN OffIceR rEgularLY aSsiGNEd to NARCOtiCS INVesTIGatIONS, wAS stATiOnED AT A tHIRD fLOoR WindOw oF an ApaRtmenT BuildInG IN An aReA where resiDeNTS haD COMPLainEd About nARCOTIcs TraNSACTIONs. He OBserved a CAdiLlAC seVille CaRRYinG fouR personS PulL iNTo A PaRkINg LoT aDJoINiNg THE BUiLdiNg AnD PARK "AlMOst RigHT UP AGAInsT tHe buILDING." TraNsCrIPt AT 14. HASKINS eStimAted ThaT hE was BETWeEN thIRtY And fORty-FivE fEet frOM THE OCcupAnTS Of THe cAR. usINg BInocUlarS, HaSkins obseRVEd This SEquEncE oF ACtIvItY: dEfendanT GiBsON, SeAtEd IN ThE DRiVER's seat, couNTED OUT NUmerouS glaSsine PaCkEtS coNTaiNIng A WhITe sUbsTAncE; DEFENdant hAGAns, sEATED BeHinD gibsoN, PAsSEd GIBSON A suM OF mOnEY; GibsOn PuT moST of tHe moNEy aNd one of The paCKEts IntO a bLAck pUrSE ANd gavE THe rEMaIniNg mOney and PacKets to haGaNS; gIbSoN Then plaCED thE bLAcK pURse BetWEeN THE ARmrestS Of the fROnT sEAT OF tHE cAR. 3 shoRtLy TheREaftEr, HASKinS, JOinEd BY Back-UP oFFiCERs, aPpRoachEd thE caR, idENtIfIED himSelF, And oRDEReD tHe FOur OcCuPANtS fROm THE Car.1 WHiLE OTHer OfFIceRs HElD gibsON ANd SEArChED hAGanS, haskINS ToOK THe blaCK PuRsE from THe car. hE OPeNeD IT And founD $1325 ANd Two paCkEtS oF WHiTE powDEr, laTer IdeNTiFIed as HeROIN. AFteR arReSTiNg gibSon AND hAGanS, HAsKInS seARCheD tHE TruNK of The CaR AND foUND A "pARTIaLLy oPENeD" BROwN paPeR BAg. TrANscRipT aT 32. He openeD ThE BAG FUrthEr ANd reMoVeD frOm iT twO LArGE viaLS OF PrELuDIN pIlLS. MEANwHilE, OffiCErs hAD FOUND siXTEEN pACKeTs of HERoin anD $60 on DefEnDAnT HAGANs aND $561 On DefenDAnT GiBSon. 4 tHe GovErNmENT cHaRgeD GibSoN and haGANS wiTH POSsESSION oF hErOin ANd gibSON wiTh pOSsEssIOn of thE PReLUdIn PiLLs. The deFENdANTS MoVED to supPrESs thE evIDeNCe fOUND in THE bLaCK PursE And pAPEr BAg. afTer tHE DIstRiCt COUrt DEnied The mOTiOn, the DEfeNdAnTS aGreEd tO a STiPulaTed TriAL WITHOut A JURY. ThE goVERNMenT In TuRN DiSmiSSed aLl cHARGEs ExCEpT THe ChARgE OF pOsSEsSIOn OF hEroiN WIth iNteNT to disTrIbUTE. The dIsTRICT COURt fOuND bOTh dEFenDanTS gUiLTy of THAT chaRGE. Ii. FOURtH AmeNDMenT IssueS 5 defENdanTs aTtacK ThE SeaRChES oF BOtH thE bLaCk PURsE ANd the PapER BaG. siNCe The COnteNts of ThE pApEr bag rElatEd solely to tHE CHArGe AGAINst gIBsoN THAT waS DIsMisSed, We NEEd Not ADDrEss The leGAlity oF THaT SeaRCH. thE TwO ViAlS oF pRELuDIn PIlLS CouLD Not HAVE COntriButeD TO THE DEFEndANTs' cONVIctiOns fOR heroiN poSseSSIon. tHus ThE failUrE TO sUppResS, EvEn IF ErRONeoUs, wAs NOT prejUdIciAL. 6 SEIZURe oF tHe bLAck pUrSe fRoM THe car Was pErmIssIBLe UndER tHE aUToMoBiLE exCepTiON to thE wARRANT rEQuIREmENt. undEr ChAMbeRs V. MaronEY, 399 u.S. 42, 90 s.cT. 1975, 26 L.ED.2D 419 (1970), ANd oUr Own DeCIsIOn IN UnitED sTAteS v. hawKInS, 595 F.2d 751 (D.C.CiR.1978), CERt. DENIeD, 441 u.s. 910, 99 s.CT. 2005, 60 L.eD.2D 380 (1979), ThE PoLice cOuLD cHOoSE eITHEr tO DetAIn THE cAR wHiLE seeKInG A wArRaNt or To sEARcH THE cAR iMMEdIAteLY. 7 DefEndANts ArguE, hOWEveR, tHaT once ThE PuRsE Was SeIZED, ArkaNsAs v. sANDers, 442 U.s. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), mandaTed a warranT PRIOR To polIce sEArCH OF thE pUrSE'S iNTEriOr. we pRETermiT thAt ArGUMenT, BEcaUSe thE searcH was justifIeD ON oThEr groUndS. OFfICeR HAskInS TestIFIeD that he oBserVED GIBSOn PUTtING paCKets COntainInG a WhIte subStANce inTO tHE blacK puRse. this OBSerVaTiON, We cOnCLuDE, bRiNgs THe cASe WItHin THe COURt'S "plAIN vIEW" hOldinG in uNitED StaTeS V. JoHnsOn, 561 f.2d 832 (d.c.CIR.) (en BAnC ), CErT. dENIEd, 432 u.s. 907, 97 s.cT. 2953, 53 L.ed.2D 1080 (1977). 8 AS a thrESHoLD mATtEr, wE nOtE ThaT OFfICer haSKINS' uSE of BINOCulARS TO ObSerVE thE actIVitY iN thE cAR DID NOt viOLate tHe foURtH AmenDmENt. THe CaR IN whICH deFEnDAnTS weRE OBSERVeD WAs pARKeD In An oPeN LOT AlONgSide An APaRTMEnt BUILDINg. anyonE haPpeNiNg alonG thE STREET CoULD HAVE gLaNCed INtO THe CAr ANd obSerVeD thE narCoTiCS TRANSACTiOn.2 A pErSON AT anY oF ThE WINDoWS on The SIDe of tHE buiLDING AT WhIcH OfFICEr haSkiNs Was sTaTioNeD MiGHt HAve lOOKED iNTo The CAR.3 sITuateD As THEY WERe, The dEFEnDAnTs "Had nO riGht to aSsUme tHAT lAw eNfOrCeMEnt OFficERs wouLD Not eNHancE theIR ABIliTY To seE ... thEm bY uSe OF varIOUs ArtifICIAl meAns sUCh aS binoCuLARS." unItED StaTeS v. mOORe, 562 f.2D 106, 112 (1sT Cir. 1977), Cert. denIEd, 435 U.s. 926, 98 S.ct. 1493, 55 L.Ed.2d 521 (1978). SEe uniTED StATEs V. poWEll, 638 F.2D 71, (9TH CiR. 1979) (AMENDEd jaN. 29, 1980) (UPHOLDinG a CoNVictION BASED iN pArt oN thE actIONs OF aN offiCER WHO, stANDIng 20-25 yaRds frOm A trucK, used BINOCUlars To peEr InTo ThE TruCK).4 9 oFFiCeR hAsKins' lawFul obSERvAtION Of GiBson pLaCing gLAssIne pACkEtS In the BLACK PuRse, and tHe POLICE ACtIOn tAKeN within MInutES thEReaftEr mAKE ThE INSTAnT cAse CLeaRer ThAN tHe oNe ThE Court confROntED eN BanC iN jOhnSoN, sUPrA. TherE, a POLiCe oFficer, PeeRinG thrOugH tHE BAsemenT winDow OF a ReSIdence, sAw thREe mEN sEaTEd aT a tABLE HoLdiNg NArcotiCs PaRaPHeRnAlIA AnD "a pYrAmiD oF whitE PowDEr eIgHt TO teN InCHES HIGH." 561 f.2D AT 835. The ofFiCeR returNEd FORTY miNUTES lATer WiTh oThEr OFfICers AND EnteRed thE hOuSE WITHOut A WARRAnT. THE THreE mEn weRe arresTED, BuT ThE naRcOticS wErE No longEr iN SiGHt. thE OFfIceRS ThEREUpON SearcheD thE basEMenT AnD EveNTuaLLY FoUnD bUnDleS OF NaRCOtIcs BEtWeEn MATtResSEs oN A bED ANd iN a cAnvas BAG CoNcEalEd in aN OlD rUG. thE En Banc OpInIon iN johnSON CoNCENTRAted on tHe QuESTiONs whEthEr ThE OfFiCEr WAs TreSpaSsinG wHeN HE LooKed THROUgh thE bASemeNT WIndOW anD wHEtHeR, sINce TherE WAs A fORtY MiNuTE DelAY befORe ENTeRinG THE HoUse, THe oFFicers sHoULd hAvE obtAINEd a WARraNt. ReSOlviNG thOSE queStions aGAInSt thE dEFeNdaNTs, JUdge mCGOwAN, wrITing FOR the CoURT, tUrnED fInaLLy To THE wARraNtLeSS SEArch OF the BasemEnt. He REasOned ThAT "THE POlICE hA(VING) SEeN a CriMe actuAlLy IN prOGREss WItH contRaband iN PLAin ViEW ... thEY Were FULLy AuThORIZeD BotH tO MaKe aRREsTS aND To SeEk out the cOntRaBAnD." ID. At 844. tHuS The SeaRcH POWeR COuLD Be "VIEWED As iNCidENt To aRreST, or AS DerIVIng INDePenDENTLY fROm thE InITIAl obseRvaTioN OF the ConTrAbANd." ID. At 845. 10 THe iNstANt CASe PresentS NeiThEr Of the FEatuRES THAt MADe jOHnSON pRoBlEmAtIc. No consiDeRAblE TIme span SEPARateD ThE SIgHTing Of THe pAcketS FroM tHe SEaRCH. rAthEr, tHe sEARCh FOLLoWeD on tHe hEELs Of tHE oBseRVatIOn. nO ExTensIve quEsT wAs iNvoLVed. oFficer HASKinS prOCEEDed aT OnCe TO thE placE WHERe tHe PaCkEtS RestEd.5 In suM, GuIDED aS WE ARE BY ThE joHnSon OPINIon, we FInD No ErROR IN THE faILuRE TO suPprESs tHE EViDeNCE FoUND in THE blaCk PuRsE. IIi. eViDeNtiARy rulings 11 DEFenDant hAgaNS aTTacks two oF thE diSTRict cOUrt'S evideNtiaRy rUlINgs; boTH ChALLeNges ARe merItlesS. 12 FiRsT, haGAnS CoMPLAIns tHAt lArrY KenaN, A LAY WItnESs For DeFeNdANtS, waS noT Allowed to TeStiFY ThaT in HiS OpIniON He cOulD nOT hAve SEen inTo tHE INTeRiOR Of thE CAr IF hE HaD BEEn sTanDING aT a seCONd STory wIndOW usIng BINocuLARS. keNAn AnD deFenDanT gIbSOn had ATTEMPTeD To rECReATe THe CIrcumstAnCes sURRoundINg tHe arReSt In An EFfORT to SHoW tHAt OFFiCEr HASKINS CoUlD NoT hAvE seen inTo thE Car CArRYING gIBSoN aND HaGAnS. The tWo WEnt TO a SECOnD StoRY WINDoW oF tHE BuiLdinG IN whicH hasKInS hAD BEen sTationED, MAde obSeRVatIOnS, ANd tooK pIcTures. They DiD Not, hOwevEr, TAkE AlONg binocUlaRs. KenAN Was aLloweD To teStIfY aBOUt	636F.2d 761 205 U.S.App.D.C.53 UNITED STATES of Americav.Bernard GIBSON, Appellant.UNITEDSTATESof Americav.Deborah Y.HAGANS, Appellant. Nos. 80-1225, 80-1228. United States Court ofAppeals,District of Columbia Circuit. Argued Sept. 25, 1980.DecidedNov. 24, 1980. Appeal from the UnitedStates District Court for the District of Columbia(D.C. Criminal No.79-00552). Patrick J. Christmas, Washington, D.C., for Bernard Gibson. James H. Craddock, Washington, D. C., (appointed by this Court) for Deborah Y. Hagans. Charles W. Brooks, Asst. U.S. Atty., with whom Charles F.C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrelland James F. Rutherford, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee. Before ROBINSON,WILKEYand GINSBURG, Circuit Judges. Opinion forthe Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: 1 Defendants Gibson and Hagans appeal from a conviction for possession of heroin withintent to distribute. The appeal raises four issues: thelegality of twosearchesconductedatthe time of arrest and the propriety of two evidentiary rulings madeby the district court. I. Facts 2 OfficerHaskins, an officerregularlyassigned to narcotics investigations, was stationed ata thirdfloor window of an apartment building in an area where residents hadcomplained about narcotics transactions. Heobserved a Cadillac Seville carrying four persons pull into aparking lotadjoining the building and park "almost right up against the building." Transcript at14.Haskinsestimated that he was between thirty and forty-five feet from the occupants of the car.Using binoculars, Haskins observed this sequence of activity: defendantGibson, seated in the driver's seat,counted out numerous glassine packets containinga white substance;defendant Hagans,seated behind Gibson, passed Gibson a sum of money; Gibson put most of the money and one of the packets into ablackpurse and gave the remainingmoney and packets to Hagans; Gibson then placed the black pursebetween thearmrests of the front seat of the car. 3 Shortly thereafter, Haskins, joinedby back-up officers, approached the car, identified himself, and orderedthe four occupants from the car.1 While otherofficersheld Gibson and searched Hagans, Haskins took the black purse from the car. He openedit and found$1325 andtwo packets of white powder, later identified as heroin. After arresting Gibson andHagans, Haskins searched the trunk of the car and founda "partially opened" brown paper bag. Transcript at 32. He opened the bag further and removed from ittwo large vialsof preludin pills. Meanwhile, officers had found sixteen packets of heroin and$60 on defendant Hagans and $561 on defendant Gibson. 4 The government charged Gibson and Hagans with possession of heroin and Gibson with possession of the preludin pills. The defendants moved to suppress the evidence found in theblack purse and paper bag. Afterthe district court denied the motion, the defendants agreed to a stipulated trial without a jury. The government in turndismissed all charges except the charge ofpossessionofheroin with intent to distribute. The district court found both defendants guilty ofthatcharge. II. Fourth Amendment Issues 5 Defendants attack thesearches ofboth the black purse and the paperbag. Since thecontents of the paper bag related solely to thecharge against Gibson that was dismissed,we need not address the legality of that search. The two vials of preludin pills couldnot have contributed to the defendants' convictions for heroin possession. Thus the failureto suppress, even if erroneous, was not prejudicial. 6 Seizure of the black purse fromthe carwas permissible under the automobile exception to the warrantrequirement. Under Chambers v. Maroney, 399U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d419(1970), and our own decisionin United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978), cert. denied,441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979), the policecould chooseeither to detain thecar while seeking a warrant or to search the car immediately. 7 Defendantsargue, however, that once the purse was seized, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586,61 L.Ed.2d 235 (1979), mandateda warrant prior to police search of the purse's interior. We pretermit that argument, because the search was justified onother grounds. OfficerHaskins testified that he observed Gibson putting packets containing a white substance into the black purse. This observation,we conclude,brings the casewithinthecourt's "plain view" holding inUnited States v. Johnson, 561 F.2d 832(D.C.Cir.) (en banc ), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977). 8 As a threshold matter, we note that Officer Haskins' use of binoculars to observe the activity in the car did not violate the Fourth Amendment.The carin which defendants were observed was parked inan open lot alongside an apartment building. Anyonehappening along the street could have glanced into the car and observed the narcotics transaction.2 A personat any of thewindows onthe side of the building at which OfficerHaskins was stationed might have looked into the car.3 Situated asthey were, the defendants"had no rightto assume that law enforcement officers would not enhance their ability to see ... them by use of various artificial means such as binoculars."UnitedStates v. Moore, 562 F.2d106,112 (1st Cir. 1977), cert.denied, 435 U.S.926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). See United States v.Powell, 638 F.2d 71, (9th Cir. 1979) (amendedJan. 29,1980) (upholding a conviction based in part on theactions of an officer who, standing 20-25 yards from a truck, usedbinoculars topeerintothetruck).4 9 Officer Haskins' lawful observationof Gibson placing glassine packetsin the black purse, and the police action taken within minutes thereafter make the instant case clearer than the one the court confronted en banc in Johnson,supra. There, a policeofficer, peering through thebasement window ofa residence, saw three men seated at atable holding narcotics paraphernalia and "a pyramid of white powder eight to ten incheshigh." 561 F.2d at 835. The officer returned fortyminutes later with otherofficers and entered the house without awarrant. The three men were arrested, but the narcotics were no longer in sight. The officers thereupon searched the basement andeventually found bundles of narcotics between mattresses on abed and ina canvasbag concealed in an oldrug. The en banc opinion in Johnsonconcentratedon the questions whether the officer was trespassingwhen he lookedthrough the basement window and whether, since there wasa forty minutedelay before entering thehouse, the officersshould have obtaineda warrant.Resolvingthose questions againstthe defendants, Judge McGowan, writing for the court, turned finally to the warrantless search of the basement. He reasoned that "the policeha(ving) seen a crime actually in progress with contraband in plain view ... they were fully authorizedboth to make arrestsandto seek out the contraband."Id. at 844. Thusthe search power couldbe "viewed as incident to arrest, or as deriving independently from the initial observation of the contraband." Id. at 845. 10Theinstant case presentsneither of the features that made Johnsonproblematic. No considerable time spanseparatedthesightingofthe packets from the search. Rather, the searchfollowedon the heelsof the observation. No extensive quest was involved. Officer Haskins proceeded atonce to theplace where the packets rested.5 In sum, guided aswe are by the Johnson opinion, we find no errorin the failure to suppress the evidence foundintheblackpurse. III. Evidentiary Rulings11 Defendant Hagans attacks two of the district court's evidentiary rulings; both challenges are meritless. 12 First, Hagans complains that LarryKenan, alaywitness fordefendants, was not allowed to testifythat in his opinion he could not have seen into the interior of the car ifhe had been standing at a second story window using binoculars.Kenan and defendant Gibson had attemptedto recreate thecircumstances surrounding the arrest in an effort to show that Officer Haskins could nothave seen into the car carrying Gibson and Hagans. The two went toa secondstory windowof the building in which Haskins had been stationed, madeobservations, and tookpictures. They did not, however, take alongbinoculars.Kenan was allowed to testify about	_636_ F.2d _761_ 205 U.S.App.D.C. 53 UNITED STATES of Americav.Bernard GIBSON, Appellant.UNITED STATES _of_ Americav.Deborah _Y._ HAGANS, Appellant. Nos. 80-1225, _80-1228._ _United_ States Court of Appeals,District _of_ Columbia Circuit. Argued Sept. 25, 1980.Decided _Nov._ 24, _1980._ _Appeal_ from _the_ United States District _Court_ for the District _of_ Columbia (D.C. Criminal No. 79-00552). Patrick J. Christmas, _Washington,_ _D._ C., for Bernard Gibson. James H. Craddock, Washington, _D._ C., (appointed _by_ _this_ Court) for Deborah _Y._ _Hagans._ _Charles_ W. Brooks, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. _S._ Atty., John A. _Terry,_ Michael W. Farrell _and_ James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for _appellee._ Before ROBINSON, _WILKEY_ _and_ GINSBURG, Circuit Judges. Opinion for the Court filed _by_ _Circuit_ Judge GINSBURG. GINSBURG, Circuit Judge: 1 _Defendants_ Gibson and Hagans appeal from a conviction _for_ possession of heroin with intent _to_ distribute. The appeal _raises_ four issues: the legality of two _searches_ conducted at the time of arrest and the propriety of two _evidentiary_ rulings _made_ by the district court. _I._ Facts 2 Officer _Haskins,_ _an_ officer regularly assigned to narcotics investigations, was stationed _at_ a third floor window _of_ an apartment building _in_ _an_ area where residents had complained about narcotics _transactions._ He observed a Cadillac Seville carrying four persons pull into a parking lot adjoining _the_ building and park "almost right up against the _building."_ _Transcript_ at 14. Haskins estimated that _he_ was between thirty and _forty-five_ feet from the occupants of _the_ car. Using binoculars, Haskins observed _this_ sequence of _activity:_ _defendant_ Gibson, _seated_ _in_ _the_ driver's seat, _counted_ out numerous glassine packets containing a _white_ substance; _defendant_ Hagans, seated _behind_ Gibson, passed Gibson a sum _of_ money; Gibson put most of the _money_ and _one_ of the packets _into_ a black purse and gave _the_ remaining money and packets _to_ Hagans; Gibson _then_ placed the _black_ purse between the armrests _of_ the front seat of the car. _3_ Shortly _thereafter,_ Haskins, joined by back-up _officers,_ _approached_ _the_ car, identified himself, and ordered _the_ four _occupants_ from the car.1 While other _officers_ held Gibson and _searched_ Hagans, Haskins took the black purse _from_ the car. He opened _it_ _and_ found $1325 and two packets of _white_ powder, _later_ _identified_ as _heroin._ After arresting Gibson and Hagans, Haskins searched the trunk of _the_ car and found a "partially opened" _brown_ paper bag. Transcript _at_ 32. He opened the bag further and removed from it _two_ large vials of _preludin_ pills. _Meanwhile,_ officers had found _sixteen_ _packets_ of heroin and _$60_ on _defendant_ Hagans and $561 on defendant Gibson. 4 The government charged Gibson and Hagans with possession of heroin _and_ Gibson with possession of the _preludin_ _pills._ _The_ defendants moved to suppress the evidence found in the black purse and paper bag. After the _district_ _court_ denied the _motion,_ the defendants agreed _to_ a _stipulated_ trial without a jury. The government _in_ turn dismissed all charges except the charge of _possession_ _of_ heroin _with_ intent to distribute. The district court found both defendants guilty _of_ _that_ charge. II. Fourth Amendment _Issues_ 5 _Defendants_ _attack_ _the_ searches of both the black purse and the paper _bag._ Since the contents of the paper _bag_ related solely _to_ the _charge_ _against_ Gibson that was dismissed, _we_ _need_ not address the legality of that search. The two _vials_ of _preludin_ pills could _not_ _have_ contributed to _the_ defendants' convictions for _heroin_ possession. Thus the failure to suppress, _even_ if _erroneous,_ was not prejudicial. _6_ Seizure of the black purse _from_ _the_ car was permissible under the automobile exception to the warrant requirement. Under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, _26_ L.Ed.2d 419 (1970), and our own decision in United _States_ v. Hawkins, 595 F.2d 751 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979), the _police_ could choose either to detain _the_ _car_ while _seeking_ a _warrant_ or to search _the_ car immediately. 7 Defendants argue, however, that once the purse _was_ seized, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. _2586,_ 61 L.Ed.2d _235_ (1979), mandated a warrant prior to police search of the purse's interior. We pretermit that argument, because the search was justified on other _grounds._ Officer Haskins testified that he _observed_ Gibson putting packets containing a white substance into _the_ black purse. This observation, we conclude, brings the case within the _court's_ "plain view" holding _in_ United States _v._ Johnson, 561 F.2d 832 (D.C.Cir.) (en banc ), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977). 8 As a threshold matter, we _note_ that _Officer_ _Haskins'_ use _of_ binoculars _to_ _observe_ the _activity_ in _the_ car did _not_ violate the Fourth Amendment. The car in _which_ defendants _were_ observed was parked in an open lot alongside _an_ apartment building. Anyone happening along the street could _have_ glanced into the car and observed the narcotics transaction.2 _A_ person at any of the windows on the side of the building at which Officer Haskins was stationed might have looked into the car.3 Situated as they were, _the_ defendants "had no right to _assume_ _that_ law enforcement officers would _not_ enhance their ability _to_ see ... them by use of various _artificial_ means such as binoculars." United States v. Moore, 562 F.2d 106, _112_ (1st Cir. 1977), cert. denied, _435_ U.S. 926, 98 _S.Ct._ 1493, _55_ L.Ed.2d 521 (1978). See United _States_ v. Powell, 638 F.2d 71, (9th Cir. 1979) _(amended_ Jan. 29, 1980) (upholding a conviction based in part on _the_ actions of _an_ officer who, standing 20-25 yards from a _truck,_ used binoculars to peer into the truck).4 _9_ _Officer_ Haskins' lawful observation _of_ _Gibson_ placing glassine packets in the _black_ purse, and the police action taken _within_ _minutes_ thereafter make the instant case clearer than the one the court confronted en banc _in_ Johnson, supra. _There,_ a police officer, _peering_ through the basement window of _a_ residence, saw three men seated at a table holding narcotics paraphernalia and "a pyramid of white powder eight _to_ ten inches high." 561 F.2d at 835. The officer _returned_ forty minutes later with _other_ officers and entered _the_ house without _a_ warrant. The _three_ men were arrested, but the narcotics _were_ no longer in sight. The officers thereupon searched the basement _and_ eventually found _bundles_ _of_ narcotics between _mattresses_ on a bed and in a canvas _bag_ _concealed_ _in_ _an_ old rug. The en banc opinion in Johnson concentrated _on_ _the_ _questions_ whether _the_ _officer_ was trespassing _when_ _he_ looked through the _basement_ window _and_ whether, since _there_ was _a_ forty minute delay before entering the _house,_ _the_ _officers_ _should_ have _obtained_ _a_ _warrant._ Resolving those questions _against_ the _defendants,_ _Judge_ _McGowan,_ writing _for_ the court, turned finally to the warrantless search of the _basement._ He _reasoned_ that "the _police_ ha(ving) seen a crime actually in progress with contraband in plain view ... they were fully authorized both to make arrests _and_ to _seek_ out the _contraband."_ _Id._ at _844._ Thus the _search_ power could be _"viewed_ as incident to arrest, _or_ as _deriving_ _independently_ from _the_ _initial_ _observation_ of the contraband." Id. _at_ 845. _10_ The instant _case_ presents neither of the features _that_ made Johnson _problematic._ No considerable time span separated _the_ sighting of the packets from the search. Rather, the search _followed_ on the heels of the observation. No extensive quest was involved. Officer _Haskins_ _proceeded_ _at_ once _to_ the _place_ where _the_ packets _rested.5_ In sum, guided as we are _by_ _the_ Johnson _opinion,_ _we_ _find_ no error in _the_ _failure_ to suppress the evidence _found_ in the black purse. III. Evidentiary Rulings 11 Defendant Hagans _attacks_ two of the district court's evidentiary rulings; both challenges are meritless. _12_ First, Hagans complains that _Larry_ _Kenan,_ a _lay_ witness _for_ defendants, was not allowed _to_ testify that in his opinion he _could_ not have _seen_ into the _interior_ of _the_ car if _he_ had been standing at a second story window using binoculars. Kenan and defendant Gibson had attempted _to_ recreate the _circumstances_ surrounding the arrest in an effort to _show_ that _Officer_ Haskins could not _have_ seen into the car carrying Gibson and Hagans. _The_ _two_ went _to_ a second story window of _the_ building in which Haskins had been _stationed,_ made observations, _and_ took pictures. They did not, _however,_ take along binoculars. Kenan was allowed _to_ testify about
20 Kan. App. 2d 361 (1995) ERROL JOE KAMPSCHROEDER, Appellee, v. NORMA W. KAMPSCHROEDER and SHERRYL HOLMES, Appellants. No. 71,720 Court of Appeals of Kansas. Opinion filed January 6, 1995. Gerald L. Cooley, John M. Cooley, and Randall F. Larkin, of Allen, Cooley & Allen, of Lawrence, for appellant Norma W. Kampschroeder. Stephen M. Fletcher, of Overland Park, for appellant Sherryl Holmes. Byron E. Springer, of Barber, Emerson, Springer, Zinn & Murray, L.C., of Lawrence, for appellee. Before GERNON, P.J., ELLIOTT and LEWIS, JJ. LEWIS, J.: Errol Joe Kampschroeder was born to the marriage of Robert and Waneta Kampschroeder. Waneta died in April 362 1980, and Robert married Norma in October 1980. The marriage was not accepted well by Errol Joe and appears to have affected the relationship between the parties from that point on. Robert and Norma remained married until Robert's death in 1990. Upon Robert's death, most of his and Norma's assets were held in joint tenancy with the right of survivorship. Norma placed these assets in her own name and the name of Sherryl Holmes, her daughter. Errol Joe commenced the present action to impose a constructive trust on the jointly held assets. The trial court held in favor of Errol Joe, and Norma and Sherryl appeal. We affirm the decision of the trial court. Litigation of this nature is particularly fact driven. The facts in this case are not, unfortunately, unusual. This lawsuit is between a stepson and his stepmother over property owned by the son's father and stepmother's husband at the time of his death. There was an extensive trial, and the trial court made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court's findings of fact are supported by substantial competent evidence. After hearing all the evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold most of their assets in joint tenancy. This was to allow the properties accumulated by both parties or brought into the marriage by both parties to become the property of their heirs after their death. They intended that "the properties of Robert go to Errol and the properties of Norma go to Sherryl." Although we concede that a different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record. The trial court found five significant factors in reaching its conclusions: "a. The Antenuptial Agreement showed their original intentions to keep their property separate. "b. Robert's attitude toward Sherryl's son was emphatic that he not receive any of Robert's property and was certainly corroborative of their intent that the properties of Robert go to Errol, and the properties of Norma go to Sherryl. "c. Clearly, the taped conversation of Norma and Nancy corroborates the testimony and position of the Plaintiff. Norma's testimony that she wanted to 363 be fair did not refer to her deciding whether commingled property should be separated because that had already been decided by the parties. That was clear by their intent as indicated on the taped conversation. When Norma indicated she wanted to be fair it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just what was hers and what was Robert's, and thus would be Errol's. "d. Robert's comment: `Make certain that Norma will be cared for' is not the language or the statement of a man who was leaving his entire estate of some worth to his wife. The fact that he wanted to make certain Norma was cared for indicated to me on his part a confusion as to what the wills would be. "e. Norma's comment: `This will is no good,' certainly again corroborates the testimony or the position that this was indeed, the intentions of the parties was to make certain that what was Robert's went to Errol, and what was Norma's went to Sherryl." Once again, the analysis of the trial court is well within the evidence shown. The five factors cited by the trial court are clearly supported by substantial competent evidence. In the final analysis, the trial court concluded that the parties had entered into an understanding where each was to have the use of the income from the property of the other until their death, at which time the property would go to their respective children. This understanding formed the basis for the consideration of the agreement. The trial court went on to conclude: "Plaintiff has by clear and convincing standards shown that there was an agreement entered into, and, in fact, always understood by Norma and Robert, that upon the death of the first to die, the income from the property brought into the marriage by that person would be enjoyed by the surviving spouse, and then pass on to the children of Norma or Robert, depending upon the situation." This conclusion is consistent with the trial court's findings of fact. Norma had breached this understanding, which gave rise to the constructive trust imposed. The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $323,233.11. The constructive trust is such that Norma is to receive the income from these assets until her death, at which time they are to be paid to Errol Joe. In appellants' brief is the following statement: "While defendants admit that the trial court's findings of fact are supported by substantial competent evidence in the record, defendants deny 364 that those findings of fact support the trial court's conclusions of law or its judgment." During oral argument before this court, counsel for Norma conceded that the trial court's findings of fact were supported by substantial competent evidence. On the other hand, counsel for Sherryl was unwilling to make such a concession. The problem with Sherryl's position is that her attorney did not file a separate brief. He joined in a single brief filed by the attorney for Norma. Sherryl is not in a position to contradict admissions made in the brief filed. However, we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence. An oral trust must be proved by clear and convincing evidence. Wehking v. Wehking, 213 Kan. 551, 554, 516 P.2d 1018 (1973). Upon review, we operate under the assumption that the trial court applied the correct standard of proof and was satisfied with the quantum of evidence introduced. A constructive trust arises "`wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.'" Hile v. DeVries, 17 Kan. App.2d 373, 374, 836 P.2d 1219 (1992) (quoting Clester v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914]). An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive. "Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [Citation omitted.]" Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). In the context in which this issue is presented, we are not dealing with actual dishonesty of purpose or intent to deceive. The evidence indicates Norma was guilty of a breach of duty amounting to constructive fraud. Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential 365 relationship. Secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached. See Winsor v. Powell, 209 Kan. 292, 302-03, 497 P.2d 292 (1972). A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Paul v. Smith, 191 Kan. 163, Syl. ¶ 4, 380 P.2d 421 (1963). The mere fact that a transfer of property occurs between a husband and wife and no valuable consideration passes is not sufficient to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 641, 135 Pac. 996 (1914). Under the facts shown, Errol Joe seeks to impress a trust on property which Norma owns by virtue of a joint tenancy contract with Robert. There is no question but that the property held in joint tenancy may be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶ 2; Winsor v. Powell, 209 Kan. at 300. The facts of this case are strikingly similar to those in Winsor v. Powell. In that action, the decedent, when discussing his affairs, spoke of his daughter, Sarah, and said, "`She'll do the right thing.'" 209 Kan. at 301. In this action, Robert told Errol Joe that he had $350	20 kan. app. 2d 361 ( 1995 ) errol joe kampschroeder, appellee, v. norma w. kampschroeder and sherryl holmes, appellants. no. 71, 720 court of appeals of kansas. subsequently filed january 6, 1995. gerald l. cooley, john m. cooley, and randall f. larkin, of allen, cooley & allen, of lawrence, for whom norma w. kampschroeder. stephen m. fletcher, of overland park, for appellant sherryl holmes. byron e. springer, of barber, emerson, springer, zinn & murray, l. c., of lawrence, for appellee. before gernon, p. j., elliott and lewis, jj. lewis, j. : errol joe kampschroeder was born to the marriage of robert and waneta kampschroeder. waneta died 12 april * 362 1980, and robert married norma in october 1980. the marriage was not accepted well by errol joe and appears to have affected the relationship between the parties from that point on. robert and norma remained married until robert ' s death in 1990. during robert ' s death, most of his and norma ' s assets were held in joint tenancy with the right of survivorship. norma placed the property in her own name and the name of sherryl holmes, her daughter. errol joe commenced the present action to impose a constructive trust on the jointly held assets. the trial court held in favor of errol joe, and norma and sherryl appeal. we affirm the decision of the trial court. litigation of this nature is particularly fact driven. the facts in this case are not, unfortunately, unusual. this lawsuit is between a stepson and his stepmother over property owned by the son ' s father and stepmother ' s husband at the time of his death. there was an extensive trial, and the trial court made 32 detailed findings of fact. we have reviewed the record and conclude that all of the trial court ' s findings of fact are supported by substantial competent evidence. without hearing all the evidence, the trial court held that norma and robert agreed, through the convenience of the parties, to hold most of their assets in one tenancy. this was to allow the properties accumulated by both parties or brought into the marriage by three parties to become the property of their heirs after their death . they intended that " the properties of robert go to errol and the properties of norma go to sherryl. " although we concede that a different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record. the trial court found five significant factors in reaching its conclusions : " a. the antenuptial agreement showed their original intentions to keep their property separate. " b. robert ' s attitude toward sherryl ' s son was emphatic that he not receive any of robert ' s property and was certainly corroborative of their intent that the properties of robert go to errol, and the properties of norma go to sherryl. " c. clearly, the taped conversation of norma and nancy corroborates the testimony and position of the plaintiff. norma ' s testimony that she wanted to * 363 be fair did not refer to her deciding whether commingled property should be separated because that had already been decided by the parties. that was clear by their intent as indicated on the taped conversation. when norma indicated she wanted to be fair it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just what was hers and what was robert ' s, and thus would be errol ' s. " d. robert ' s comment : ` make certain that norma will be cared for ' is not the language or the statement of a man who was leaving his entire estate of some worth to his wife. the fact that he wanted to make certain norma was cared for indicated to me on his part a confusion as to what the wills would be. " e. norma ' s comment : ` this will is no good, ' certainly again corroborates the testimony or the position that this was indeed, the intentions of the parties was to make certain that what was robert ' s went to errol, and what was norma ' s went to sherryl. " once again, the analysis of the trial court is well within the evidence shown. the five factors cited by the trial court are clearly supported by substantial competent evidence. in the final analysis, the trial court concluded that the parties had entered into an understanding where each was to have the use of the income from the property of the other until their death, at which time the property would go to their respective children. this understanding formed the basis for the consideration of the agreement. the trial court went on to conclude : " plaintiff has by clear and convincing standards shown that there was an agreement entered into, and, in fact, always understood by norma and robert, that upon the death of the first to die, the income from the property brought into the marriage by that person would be enjoyed by the surviving spouse, and then pass on to the children of norma or robert, depending upon the situation. " this conclusion is consistent with the trial court ' s findings of fact. norma had breached this understanding, which gave rise to the constructive trust imposed. the trial court went on to determine which assets were subjected to the constructive trust. the total value of those assets is $ 323, 233. 11. the constructive trust is such that norma is to receive the income from these assets until her death, at which time they are to be paid to errol joe. in appellants ' brief is the following statement : " while defendants admit that the trial court ' s findings of fact are supported by substantial competent evidence in the record, defendants deny * 364 that those findings of fact support the trial court ' s conclusions of law or its judgment. " during oral argument before this court, counsel for norma conceded that the trial court ' s findings of fact were supported by substantial competent evidence. on the other hand, counsel for sherryl was unwilling to make such a concession. the problem with sherryl ' s position is that her attorney did not file a separate brief. he joined in a single brief filed by the attorney for norma. sherryl is not in a position to contradict admissions made in the brief filed. however, we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence. an oral trust must be proved by clear and convincing evidence. wehking v. wehking, 213 kan. 551, 554, 516 p. 2d 1018 ( 1973 ). upon review, we operate under the assumption that the trial court applied the correct standard of proof and was satisfied with the quantum of evidence introduced. a constructive trust arises " ` wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title. ' " hile v. devries, 17 kan. app. 2d 373, 374, 836 p. 2d 1219 ( 1992 ) ( quoting clester v. clester, 90 kan. 638, 642, 135 pac. 996 [ 1914 ] ). an essential element of proving a constructive trust is a showing of fraud. however, there are two types of fraud, actual and constructive. " actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [ citation omitted. ] " moore v. state bank of burden, 240 kan. 382, 389, 729 p. 2d 1205 ( 1986 ), cert. denied 482 u. s. 906 ( 1987 ). in the context in which this issue is presented, we are not dealing with actual dishonesty of purpose or intent to deceive. the evidence indicates norma was guilty of a breach of duty amounting to constructive fraud. absent actual fraud, there are two additional elements which are required to be proven. first, there must be a confidential * 365 relationship. secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached. see winsor v. powell, 209 kan. 292, 302 - 03, 497 p. 2d 292 ( 1972 ). a confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. paul v. smith, 191 kan. 163, syl. ¶ 4, 380 p. 2d 421 ( 1963 ). the mere fact that a transfer of property occurs between a husband and wife and no valuable consideration passes is not sufficient to raise a trust by implication. clester v. clester, 90 kan. 638, 641, 135 pac. 996 ( 1914 ). under the facts shown, errol joe seeks to impress a trust on property which norma owns by virtue of a joint tenancy contract with robert. there is no question but that the property held in joint tenancy may be the subject of a trust. wehking v. wehking, 213 kan. 551, syl. ¶ 2 ; winsor v. powell, 209 kan. at 300. the facts of this case are strikingly similar to those in winsor v. powell. in that action, the decedent, when discussing his affairs, spoke of his daughter, sarah, and said, " ` she ' ll do the right thing. ' " 209 kan. at 301. in this action, robert told errol joe that he had $ 350	20 Kan. App. 2d 361 (1995) ERROL JOE KAMPSCHROEDER, Appellee, v. NORMA W. KAMPSCHROEDER and SHERRYL HOLMES, Appellants. No. 71, 720 Court of Appeals of Kansas. Opinion filed January 6, 1995. Gerald L. Cooley, John M. Foole7, and Randall F. Larkin, of Allen, Cooley & Allen, of Lawrence, for appellant Norma W. Kampschroeder. dtdphen M. Fletcher, of Overland Park, for appellant Sherryl Holmes. Byron E. Springer, of Barber, Emerson, Springer, Zinn & Murray, L. C. , of Lawrence, for appellee. Before GERNON, P. J. , ELLIOTT and LEWIS, JJ. LEWIS, J. : Errol Joe Kampschroeder was born to the marriage of Robert and Waneta Kampschroeder. Waneta died in April * 362 1980, and Robert married Norma in October 1980. The marriage was not accepted well by Errol Joe and appears to have affected the relationship between the parties from that point on. Robert and Norma remained married until Robert ' s death in 1990. Upon Robert ' s death, most of his and Norma ' s assets were held in joint tenancy with the right of survivorship. Norma placed these assets in her own name and the name of Sherryl Holmes, her daughter. ErGo. Joe commenced the present action to impose a constructive trust on the jointly held assets. The trial court held in favor of Errol Joe, and Norma and Sherryl appeal. We affirm the decision of the trial court. Litigation of this nature is particularly fact driven. The facts in this case are not, unfortunately, unusual. This lawsuit is between a stepson and his stepmother over property owned by the son ' s father and stepmother ' s husband at the time of his death. There was an extensive trial, and the trial court made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court ' s findings of fact are supported by substantial competent evidence. After hearing all the evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold most of their aCseFs in joint tenancy. This was to allow the properties accumulated by both parties or brought into the marriage by both parties to become the property of their heirs after their death. They intended that " the properties of Robert go to Errol and the properties of Norma go to Sherryl. " Although we concede that a different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record. The trial court found five significant factors in reaching its conclusions: " a. The Antenuptial Agreement showed their original intentions to keep their property separate. " b. Robert ' s attitude toward Sherryl ' s son was emphatic that he not receive any of Robert ' s property and was certainly corroborative of their intent that the properties of Robert go to Errol, and the properties of Norma go to Sherryl. " c. Clearly, the taped conversation of Norma and Nancy corroborates the testimony and position of the Plaintiff. Norma ' s testimony that she wanted to * 363 be fair did not refer to her deciding whether commingled prp4rty should be separated because that had already been decided by the parties. That was clear by their intent as indicated on the taped conversation. When Norma indicated she wanted to be fair it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just what was hers and what was Robert ' s, and thus would be Errol ' s. " d. Robert ' s comment: ` Make certain that Norma will be cared for ' is not the language or the statement of a man who was leaving his entire estate of some worth to his wife. The fact that he wanted to make certain Norma was cared for indicated to me on his part a confusion as to what the wills would be. " e. Norma ' s comment: ` This will is no good, ' certainly again corroborates the testimony or the position that this was indeed, the intentions of the parties was to make certain that what was Robert ' s went to Errol, and what was Norma ' s went to Sherryl. " Once again, the analysis of the trial court is well within the evidence shown. The five factors cited by the trial court are clearly supported by substantial competent evidence. In the final analysis, the trial court concluded that the parties had entered into an understanding where each was to have the use of the income from the property of the other until their death, at which time the property would go to their respective children. This understanding formed the basis for the consideration of the agreement. The trial court went on to conclude: " Plaintiff has by clear and convincing standards shown that there was an agreement entered into, and, in fact, always underafood by Norma and Robert, that upon the death of the first to die, the income from the property brought into the marriage by that person would be enjoyed by the surviving sLousS, and then pass on to the children of Norma or Robert, depending upon the situation. " This conclusion is consistent with the trial court ' s findings of fact. Norma had breached this understanding, which gave rise to the constructive trust imposed. The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $ 323, 233. 11. The constructive trust is such that Norma is to receive the income from these assets until her death, at which time they are to be paid to Errol Joe. In appellants ' brief is the following statement: " While defendants admit that the trial court ' s findings of fact are supported by substantial competent evidence in the record, defendants deny 364 that those findings of fact support the trial court ' s conclusions of law or its judgment. " During oral argument before this court, counsel for Norma conceded that the trial court ' s findings of fact were supported by substantial competent evidence. On the other hand, counsel for Sherryl was unwilling to make such a concession. The problem with Sherryl ' s position is that her attorney did not file a separate brief. He joined in a single brief filed by the attorney for Norma. Sherryl is not in a position to contradict admissions made in the brief filed. However, we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence. An oral trust must be proved by clear and convincing evidence. Wehking v. Wehking, 213 Kan. 551, 554, 516 P. 2d 1018 (1973 ). Upon review, we operate under the assumption that the hriZl court applied the correct standard of proof and was satisfied with the quantum of evidence introduced. A constructive trust arises " ` wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title. ' " Hile v. DeVries, 17 Kan. App. 2d 373, 374, 836 P. 2d 1219 (1992) (quoting Clester v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914] ). An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive. " Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [Citation omitted.] " Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P. 2d 1205 (1986 ), cert. denied 482 U. S. 906 (1987 ). In the context in which this issue is presented, we are not dealing with actual dishonesty of purpose or intent to deceive. The evidence indicates Norma was guilty of a breach of duty amounting to constructive fraud. Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential * 365 relationship. Secondly, the confidence reposed must be betrayed, or a duty iKposeS by the relationship must be breached. See Winsor v. Powell, 209 Kan. 292, 302 - 03, 497 P. 2d 292 (1972 ). A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Paul v. SNitN, 191 Kan. 163, Syl. ¶ 4, 380 P. 2d 421 (1963 ). The mere fact that a transfer of property occurs between a husband and wife and no valuable consideration passes is not sufficient to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 641, 135 Pac. 996 (1914 ). Under the facts shown, Errol Joe seeks to impress a trust on property which Norma owns by virtue of a joint tenancy contract with Robert. There is no question but that the property held in joint tenancy may be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶ 2; Winsor v. Powell, 209 Kan. at 300. The facts of this case are strikingly similar to those in Winsor v. Powell. In that action, the decedent, when discussing his affairs, spoke of his daughter, Sarah, and said, " ` She ' ll do the right thing. ' " 209 Kan. at 301. In this action, Robert told Errol Joe that he had $ 350	Kan. App. 2d 361 (1995) ERROL JOE KAMPSCHROEDER, Appellee, NORMA W. KAMPSCHROEDER and SHERRYL HOLMES, Appellants. No. 71,720 Court of Appeals Kansas. Opinion filed January 6, 1995. Gerald L. Cooley, John M. Cooley, and Randall F. Larkin, of Allen, Cooley & Allen, of Lawrence, for appellant Norma W. Kampschroeder. Stephen M. Fletcher, of Overland Park, for appellant Sherryl Holmes. Byron E. Springer, of Barber, Emerson, Springer, Zinn & Murray, L.C., of Lawrence, for appellee. Before GERNON, P.J., ELLIOTT and LEWIS, LEWIS, J.: Errol Joe Kampschroeder was born to the marriage of and Kampschroeder. Waneta died in April 362 1980, and Robert married Norma in 1980. The marriage was not well by Joe and appears to have affected the relationship between the parties from that point on. Robert Norma remained married until Robert's in 1990. Upon Robert's death, most of his and Norma's assets were held in joint tenancy with the right of survivorship. Norma placed these assets in own name and the name of Sherryl Holmes, her daughter. Errol Joe commenced the present action to a constructive trust on the jointly held assets. The trial court held in favor of Errol Joe, and Norma and Sherryl appeal. We affirm the decision of the trial court. Litigation of this nature is particularly fact driven. The facts in this case are not, unusual. This lawsuit is between a stepson and his stepmother over property owned by the son's father and stepmother's husband at the time of his death. was an extensive trial, and the trial court made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court's findings of fact are supported by substantial competent evidence. After hearing all evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold most of their assets in joint tenancy. This was to the properties accumulated by both parties or brought into the marriage by both parties to become the property of their heirs after their death. They intended that "the properties Robert go to Errol and the properties of to Although we concede that different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record. The court five significant factors in reaching conclusions: "a. The Antenuptial Agreement showed their original intentions to keep their property separate. "b. Robert's attitude toward Sherryl's son emphatic that he receive any Robert's property and was certainly corroborative of their that the of Robert go to and the properties Norma go to Sherryl. "c. Clearly, taped conversation of and Nancy corroborates the and position of the Plaintiff. Norma's testimony that she wanted to 363 be fair did not refer her whether commingled property should be separated because that had already been decided by the parties. That was clear by their intent as indicated on the taped conversation. Norma indicated she wanted be it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just was hers and what was and thus would be Errol's. Robert's comment: `Make certain that Norma be is not the language or the statement of a man who was leaving his entire estate of worth to his wife. The fact he wanted to certain Norma was cared for to me on his part a confusion as to wills be. "e. comment: `This will no good,' again corroborates the testimony or the position that this was indeed, intentions of the parties was to make certain that what was Robert's went to Errol, and what was Norma's went to Sherryl." Once again, the analysis of the court is well within the evidence shown. The five factors the trial court are clearly supported by substantial In the final analysis, trial court concluded that the parties had entered into an understanding where each was have the use of the income from the property of the other until their death, at which time the property would go to their respective children. This understanding formed basis for the of the agreement. The trial went on to conclude: "Plaintiff has by clear convincing standards shown that there was an agreement entered into, and, in fact, always understood by Norma and Robert, that upon the death the first to die, the from the property brought into the marriage by that person would be enjoyed the surviving spouse, and then pass on to the children of Norma Robert, depending upon the This conclusion is consistent with the trial court's findings of fact. Norma breached this understanding, which rise to the constructive trust imposed. The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $323,233.11. The constructive trust such that Norma is to receive the income from these assets until her death, at which time they to be paid to Errol Joe. In appellants' brief is the following statement: "While defendants that the trial court's findings fact are supported by competent evidence in the record, defendants deny 364 that those findings of fact support the trial court's conclusions of or its judgment." During oral argument before this court, counsel for Norma conceded that the court's findings of fact were supported by substantial competent evidence. On the other hand, counsel for was to make such a concession. The problem Sherryl's position is that her attorney did not a separate brief. He joined in a single brief filed by attorney for Sherryl is not a position to contradict admissions made brief filed. However, we have examined the record, and we conclude that the findings of are supported by substantial competent evidence. An oral trust must be proved by clear and convincing evidence. Wehking v. Wehking, Kan. 551, 554, 516 P.2d 1018 (1973). Upon review, we operate under the assumption that trial court applied the correct standard of proof and was satisfied with the quantum of evidence constructive trust arises "`wherever the circumstances the property acquired make it inequitable should be retained by the person who holds the legal title.'" Hile v. DeVries, Kan. App.2d 373, 374, 836 P.2d 1219 (1992) (quoting Clester v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914]). An essential element a trust is a showing fraud. However, there are two types of fraud, actual and constructive. "Actual fraud is an intentional fraud, and the intent to deceive essential element of the action. Constructive fraud, however, a breach of a legal or equitable duty which, irrespective moral guilt, law declares fraudulent because of its tendency to deceive or violate a confidence, and neither dishonesty of purpose or intent to deceive is [Citation Moore v. State Bank of Burden, Kan. 382, 389, 729 P.2d 1205 (1986), 482 U.S. 906 (1987). In the context in which this issue is presented, we are not dealing with actual dishonesty purpose intent to deceive. The evidence indicates Norma was guilty of a breach of duty to constructive fraud. Absent actual fraud, there are additional elements which are required to be proven. there must be a confidential 365 relationship. Secondly, the confidence must be betrayed, or a duty imposed by the relationship must be breached. See Winsor v. Powell, 209 Kan. 292, 302-03, 497 P.2d 292 (1972). A confidential not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. v. Smith, 191 Kan. 163, ¶ 380 P.2d 421 (1963). The fact that a occurs between a husband and wife and no valuable consideration passes is sufficient to raise a trust implication. Clester v. Clester, 638, 641, 135 Pac. 996 (1914). facts shown, Errol Joe to impress a trust on property which by virtue joint tenancy contract with Robert. There is question but that the property held in joint tenancy may be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶ 2; Winsor v. Powell, 209 300. The facts of this case are strikingly similar to those in Winsor Powell. that action, the decedent, when discussing his affairs, of daughter, Sarah, and said, "`She'll do the right thing.'" Kan. at 301. In this action, Robert told Errol Joe that he had $350	20 kan. App. 2d 361 (1995) errOL jOe kaMPSchrOeDEr, AppeLLee, v. nORMa w. KAMPsCHroEdEr aND SheRryl HolMes, aPpellANTs. nO. 71,720 cOUrT Of APpEALs of KanSas. opIniOn FIlEd jANUarY 6, 1995. GErald l. CooLEY, johN m. COOley, AND RanDall f. lArkIn, of aLLEn, cOoLeY & ALlen, OF LAwreNCe, fOR APPEllAnt nOrMa W. KAMpschroeDEr. StePHen m. fLetCHer, Of ovErLaNd ParK, foR aPpELLaNT shErRYL HoLmes. bYrOn E. SPriNGer, Of baRbeR, EmerSON, sPriNger, ZINn & MuRRAY, l.c., OF lAwREnCE, For ApPELLEe. BEfore GErnon, p.j., ELLiott AND lEWIs, JJ. LEwis, J.: ErrOl Joe KAmpScHROEder wAS BOrn tO tHE MaRRiage oF RObeRt ANd wanETa kaMPSchrOeder. waNeTa dIeD In aprIL 362 1980, aND roberT maRriED noRma in octObER 1980. the marrIAgE wAS not AcCePtED wELL By ERROl JoE And apPears tO HAve aFFecTED THE reLatIOnSHIp BEtWeen tHe PaRTiEs From tHAt PoINt On. RoBERt aNd nOrmA reMAined mARRIED untiL rObERt'S DEaTh iN 1990. uPon rObERt's DEAtH, mOSt of HIS anD NoRMa'S aSsETs wEre hELd IN JOInt tenANCy wiTH ThE rigHt OF SurvIVoRsHiP. NorMa placeD TheSE asseTs In heR oWN NAmE And THe naMe oF SHeRRYl HoLMes, Her DAUghTeR. erRoL Joe comMeNCed tHE PRESENT aCtIOn tO impoSe A constRUCtIVE TrUsT on THE JoInTlY HELd assETS. ThE tRIAL cOuRT hEld in fAvor oF ERRol Joe, And nORma aND sheRryL ApPEaL. WE AfFiRM thE DeCisIon oF the triAl CoUrt. LITiGAtiON Of This NAturE is pARTIcUlarLy FACT DRivEN. thE FActs IN This caSe aRE Not, uNFORtunatelY, UnusUAl. thIs lAWsuiT IS bEtWEEN A stepSon And HIs stEpMoThEr oVeR pRopeRty OwnED by The SoN'S FATHEr anD sTepmOThEr'S hUSbAnd at The time of HIS deAth. ThERE wAs AN ExTeNsiVE tRIAL, ANd THE triaL COUrT MaDE 32 DETAILED FINDings of FaCt. wE have ReVieWED THe rECoRd and CONClUdE thAt aLl of the tRIal COURt's fiNDiNgs oF FACT ARe sUPpORtED by subStantiAL COMPetenT eVIdEnCe. aFTEr hEAring aLL tHe eVIdenCe, tHe trIAL CoURt hELD tHat NORMA anD roBErT AgReeD, fOR tHE cONveNIENcE of the partIeS, to hold MOst oF tHEir asSetS IN joinT TeNAnCy. this WAS TO ALLow The pROPeRTiEs aCCUMuLatEd bY bOTh PArTies oR BrOUgHT Into THE marrIaGe By boTh PaRTIES TO BeCOme tHE PROPERtY Of Their HeirS afteR theIR deaTh. tHey InTenDED ThAT "The PROpeRTIES of RObeRT Go tO erroL And THE prOPeRtieS OF nORma go tO SherRyl." aLThougH WE coNcEDe ThaT A dIfferENT sPin mIGht hAVe bEeN put oN tHe EvIDENCE, THE AnAlysIS adoPTeD bY ThE trial CouRT is SUBStAnTIALly suPporTEd bY thE RecoRD. THE tRIAL COURt foUNd FIVE SIgnIFicanT fACTORS IN ReachING ITs CONCLuSionS: "a. thE aNTENUptiAL aGreeMEnt shOWeD their origInal iNtentIoNs to KEeP ThEir proPERTy SEPARate. "B. rOBeRt's aTTitudE ToWArd sHERRYl'S soN WAs emPHatIc ThaT hE Not reCEiVE Any OF rObeRt'S PRoPerty and was cErtAInlY COrRObORatIvE OF theIr INTENt ThAt ThE pRoPErTIeS of RoBERT Go TO errOl, aNd tHe pRopERTiEs OF nOrMA GO to shErrYL. "c. cLEARLY, The tApED coNvErsATIon of NOrMA aND nAncY COrrOboRates tHe TestimOny ANd pOSItION oF tHE PLAIntIff. nORmA's TEStiMonY thAT ShE wANTeD TO 363 BE FAIr DiD NOt ReFER To HEr decIDIng WhEther cOMMINgleD prOpErTy shoUlD be sEparATEd BECauSe That hAD ALReady bEEN dECided by THE pARTiEs. tHaT WAS CLeaR by tHeir iNtent As INDicaTed ON The tAped coNvErsATION. WhEn nOrMa iNDICatED SHe WaNtEd to BE fAIr It Is CLEar FrOM THE TeSTiMONy sHE waS OvErWheLmed BY ThE PROCess Of havIng tO sepARAte THe PROpertY oUT, of DEcIdInG juSt wHat was HeRs and WhAT waS robERT'S, ANd tHus woULd be ErRoL'S. "D. RobERT's comMenT: `mAke cERTaIN ThAt NorMa WiLL be careD fOr' is NOT The LaNguagE OR ThE statemEnT OF A Man whO Was LeAViNG hiS EnTIRE EState Of SoMe wortH to hIS WIfE. tHe fact ThAT he wanted TO MaKE ceRtAIN NoRMA WAS careD for inDIcAteD TO mE on HIS PArt A conFUSIOn as tO What tHe WiLlS WOuLd Be. "E. noRmA's cOmMENT: `ThIS wIlL is No gOOD,' certaiNly aGAIn cOrrOBorateS tHe tEsTIMoNy Or ThE POSitION ThaT tHiS wAS iNdeEd, thE intEnTIONs Of tHE pArTiEs waS TO MAke CerTaIN tHAT WhAt waS rObErT's WEnT TO eRRol, AND WhAT WAs NOrmA's wENt tO sheRryl." ONce aGAIN, the aNalySIs Of tHe TRIAl CoURT is wEll WitHiN ThE EVIdEnCE SHOwN. THe fiVe FactORs cItEd bY ThE TrIal CouRT ArE cleARlY sUpPoRTEd by SuBStAntial cOMpeteNt EvidenCE. in THE FInal AnALySIS, THE Trial courT conCLuDeD thAT the pArties HaD eNTERed inTO an UNdersTAnDiNg wHERE eAcH wAs TO haVE THE USE OF THe INCoMe FroM the PROpERtY Of The OTHeR unTil Their deATH, aT WhicH TIMe THe PRopErtY WOuLD Go tO thEIr REspecTIvE ChildrEn. ThIS unDErSTANDIng FormED tHE baSIs for tHe CoNsiDERatION Of THE AgREEMeNt. THe TrIaL cOURT WENT on To cONcLUdE: "plAInTiFf has By cLEAR AND CONvINciNg STaNDARDs ShOwN thaT ThEre waS AN AgReEmEnT enTEReD IntO, And, in facT, aLWayS understOoD bY noRMa AnD roBert, ThaT UPon THe deAth of THe FiRsT TO dIE, tHE INCoMe FRoM tHE PrOperty BRouGht INTo ThE mARriAGe BY tHAt pERsOn wOuLd BE eNjOyeD by tHE sUrVIvinG SpouSE, AnD tHeN paSs oN To THE ChiLDRen Of nORma OR RObeRt, DepEndiNG upoN the SituAtION." tHiS COnClUSIoN is CONsIstEnT With tHe trIAl courT's FindiNgs Of FAcT. nORmA HAD BreaCHEd THIS undeRSTaNding, whICH gavE rise TO THe coNSTrUcTIVe trUst impOsed. THe trIaL cOURt WENt On To DEtErmINe WhICH aSSeTS Were suBjecTEd to tHe constRuctiVe TRust. THe TotAL vAlue Of tHose AsseTs is $323,233.11. THE CONstRuctivE TRUst is sucH tHat NorMA Is to RECeIVe THe InCoME frOm thESE ASsETS untIl hEr DEATH, At wHIch timE THeY ARe to Be paiD tO ERRoL Joe. IN appELLaNts' briEF iS The FolloWIng sTAteMENT: "wHIlE DEfEnDANts ADMit tHAt ThE TRiaL CoURT'S findINgS OF fACt ARE sUpPoRTEd BY sUbSTAntIAl cOMpETENT evidEnce In tHE rEcORd, DefenDAnTs Deny 364 THAT tHoSe fIndinGS oF fACt sUPpORT The TRial CoUrt's coNCLUSioNS OF laW OR ITs JUdgMENt." dURINg OraL ArGUmENT befOre tHiS CoURT, COUNsEl for nOrma cOnCeDed tHAT the TriaL court's fINdinGs oF FaCT werE SuPPoRTEd by SuBsTantial COMpETeNT EvIdeNCe. oN tHE oTHer HANd, CoUNsEl FOR ShErRYl wAS unwilliNG To MAkE SUCH a cONCeSSiON. The PRobLeM WiTh SHerrYL's posITION Is thAT her AttoRneY DiD Not fILe A sepArAtE bRIeF. HE joined In A sInGlE briEF Filed BY thE aTTORney for nOrma. SheRryL Is noT IN A poSItIOn TO cONtraDict adMisSIoNS MADE in the bRIeF fiLeD. hoWeveR, wE HAvE examINED ThE REcord, AnD we concLuDE thAt THE FiNdingS OF FAct ARe sUpPorted bY subStAnTiAl CoMpEtEnt EvIDenCe. AN oRAL TRUsT mUst be pRoved bY CLeAR and cOnvINcIng EviDENcE. wehkiNG V. weHKinG, 213 Kan. 551, 554, 516 p.2d 1018 (1973). upoN rEviEW, wE opErate undEr tHE ASsUmPtiOn THAt the TRial CouRt ApplIeD ThE cORRect StaNDaRd Of pROOf AnD Was SatisfiED wiTH The QUANTuM OF eVidencE IntRoDuCed. a cONsTrUCTIVE TrUst arisEs "`WHerEVer tHE CIrcumStAnceS undEr wHich tHE PRopeRTY wAS ACquIReD MaKe IT INequItabLe tHat it sHoULD BE retAinEd bY thE peRson Who hOLDS ThE LEGAL TiTLe.'" HilE V. dEvRIes, 17 kAn. apP.2D 373, 374, 836 p.2d 1219 (1992) (qUOtinG ClEsteR v. ClESTer, 90 kAN. 638, 642, 135 Pac. 996 [1914]). an EssEnTial ElEMENT OF PRovInG A ConStrucTIVE tRUSt Is a sHOwiNG of fraUD. hOWeVEr, tHErE are TWO TYpes OF FRAuD, acTUAl AnD cONSTrUCtIVE. "ACTUAl fRAuD is an InTenTIONal FRauD, ANd thE InTent TO DeCeIVe is aN eSSenTiaL elEMeNt oF tHe acTIOn. ConSTRucTIVe fRaUD, HowEVer, is A brEach OF a lEGal oR EquITABLe dUtY whICh, IRREspective OF mORal gUILT, THe LaW declAReS FrAudUlent BecAUsE oF ITS TeNdeNCY to DecEive otHeRS Or vioLatE a COnfidence, And NeITHER actual DISHOnesty of pURposE OR iNTEnT tO decEIve Is NecEsSAry. [cITatIoN OMitTeD.]" MOORe V. sTatE baNk OF BURDen, 240 KAn. 382, 389, 729 P.2d 1205 (1986), cErt. dENIED 482 u.S. 906 (1987). In thE CoNtEXt in whiCH THis iSsUE IS PRESenteD, WE aRE nOT DEALing With ActUaL DisHONEStY oF pUrpOse Or IntEnt tO dECeiVe. The eviDENce iNdIcaTeS nOrmA Was gUilty oF A BrEACH Of dUTy AMountiNG TO cONStructive frAud. aBseNt ACtUAL Fraud, theRe aRE Two adDitIOnAL Elements WhICh are ReQuIreD tO Be PRovEn. FIrST, theRe MUsT BE A cOnFIdEnTIal 365 RElATIonSHIp. sEcONDLy, ThE coNFidEnce RepOseD mUST bE BetraYed, Or A DUTy impOsED bY THe ReLATioNsHip MuSt be breAcHed. seE WinsoR V. pOwell, 209 KAn. 292, 302-03, 497 P.2d 292 (1972). A cOnfIDEnTial RElAtIoNsHIp is noT pRESumed, aND THE BUrdEn of PrOvING sUcH a ReLATiONSHiP exIsTeD ReSts UPON ThE paRTy aSSERTiNG its EXistenCe. PAUL v. sMITH, 191 Kan. 163, syL. ¶ 4, 380 p.2D 421 (1963). tHE MErE faCT ThAT A TRaNsfEr oF prOPERtY OccuRs beTWEen a HusBAND anD WIfe and No VALuABle COnsIdErAtioN pasSEs IS noT suFficiEnT to RaiSe A TrUsT By ImpLIcATIoN. ClEsteR V. CleSTEr, 90 KaN. 638, 641, 135 pac. 996 (1914). UnDEr the facTs ShoWN, eRROl joE seeKS TO IMPResS a tRUsT ON propertY WHiCH nOrMA oWns By viRTue oF a jOiNT tENancY cONtRAcT WItH roBert. therE Is No QUeSTIon but That The PropERty Held iN Joint teNAnCY MaY BE tHE sUBjEct Of A tRust. weHKinG v. WEhkiNG, 213 Kan. 551, syL. ¶ 2; WinSOR V. powELL, 209 KaN. AT 300. the FAcTs OF This CaSE ArE strIKinGLY SImilaR to tHOSe iN wiNSor V. poWElL. In tHAt Action, THE dECedenT, whEn DiSCuSSing HIs Affairs, SpOke Of hIS DauGhtER, sARaH, AND SAid, "`ShE'LL DO tHe rigHT thINg.'" 209 KAN. at 301. iN THIs aCTION, robErT TOld ERRol joe ThAt he HAd $350	20 Kan. App.2d361 (1995) ERROL JOE KAMPSCHROEDER, Appellee, v. NORMA W. KAMPSCHROEDERand SHERRYL HOLMES, Appellants. No. 71,720 Court of Appeals of Kansas. Opinion filed January 6, 1995. Gerald L. Cooley, John M. Cooley, and Randall F.Larkin, of Allen, Cooley & Allen, ofLawrence, for appellant Norma W. Kampschroeder. Stephen M. Fletcher, of Overland Park, for appellant Sherryl Holmes. Byron E. Springer, ofBarber, Emerson,Springer, Zinn & Murray, L.C., of Lawrence,for appellee. Before GERNON, P.J., ELLIOTT and LEWIS, JJ. LEWIS, J.: Errol JoeKampschroeder was born to the marriage of Robert and Waneta Kampschroeder. Waneta died in April 362 1980, and Robert married Normain October 1980. The marriage was notaccepted wellby Errol Joe and appears to have affected the relationship between theparties from that point on. Robert andNorma remainedmarried until Robert's death in 1990. Upon Robert's death, most of his and Norma's assets were held in joint tenancy with the right of survivorship. Norma placed these assets inher ownname and the name of Sherryl Holmes,her daughter. Errol Joe commenced the present action to impose a constructivetrust on the jointly held assets. The trial court held infavor of Errol Joe, and Norma and Sherryl appeal. We affirm the decision of the trialcourt. Litigation of this nature is particularly fact driven.The facts in this case are not,unfortunately, unusual. This lawsuit isbetween astepson andhisstepmother over property owned by theson's fatherandstepmother's husband at the timeofhis death. There was an extensive trial, andthe trialcourt made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court'sfindingsof fact are supported by substantial competent evidence. After hearing all the evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold mostof their assets in joint tenancy. This was to allow the properties accumulatedby both parties or brought into the marriage by both parties to becomethe property of their heirs after their death. They intended that "the propertiesof Robert go to Errol and the propertiesof Norma go to Sherryl." Although we concedethat adifferent spin might have been put on the evidence, the analysis adopted bythe trial court is substantially supported by the record.The trial court found five significantfactors in reachingits conclusions:"a. The Antenuptial Agreement showed their original intentions tokeep their property separate. "b. Robert'sattitude toward Sherryl's son was emphatic thathe notreceive anyof Robert's property and was certainly corroborative of their intent that the properties of Robert go to Errol, and the properties ofNorma go to Sherryl. "c. Clearly, the taped conversation of Norma and Nancycorroborates the testimony and position of the Plaintiff. Norma's testimony that she wanted to 363 be fair did not refertoherdecidingwhether commingled property should be separated becausethat had already been decided by the parties. That was clear by their intent as indicated onthe taped conversation. When Norma indicated she wanted to be fair it is clear from the testimony she wasoverwhelmed by theprocessof having to separatethe property out, ofdeciding just whatwas hers and what was Robert's, andthus would beErrol's. "d. Robert's comment: `Make certain that Norma will be cared for' is not the language or the statement of a man who was leaving his entire estate ofsome worth to hiswife. The fact that he wanted to makecertain Norma was cared for indicated to me onhis part aconfusion as to what the wills would be."e. Norma's comment: `This will isno good,' certainly again corroboratesthe testimony or the positionthat this was indeed, the intentions ofthe parties was to make certain that whatwas Robert's went toErrol, and whatwas Norma's went to Sherryl." Once again, the analysis ofthe trialcourt iswell within the evidence shown. The five factors cited by the trial court are clearlysupported by substantial competent evidence. In the finalanalysis, the trial court concluded that the parties had entered into an understanding where each was to have theuse of the income from the property of the other untiltheir death,at which time the propertywould go to their respectivechildren. Thisunderstanding formed the basis forthe consideration of the agreement. Thetrial court went ontoconclude:"Plaintiff has by clear and convincing standards shown that there was anagreement entered into, and, in fact, always understood by Norma and Robert, that uponthe deathof the first todie,theincome from the property brought into the marriage by that person would be enjoyed by the surviving spouse, and then pass on to the children of Norma or Robert, dependingupon the situation." This conclusion is consistent with the trial court's findings of fact. Norma had breachedthis understanding, which gave riseto the constructive trust imposed. The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $323,233.11. The constructive trust is such that Norma is to receivetheincome from these assets until her death, at which time they are to be paid to Errol Joe. In appellants' brief is the following statement: "While defendants admit that the trial court's findings of fact are supported by substantial competent evidencein the record, defendants deny 364 that those findings of fact support the trial court's conclusions of lawor its judgment." Duringoralargument before this court, counsel for Norma conceded that the trial court's findings of fact were supported by substantial competent evidence. On the other hand, counsel for Sherrylwas unwilling to make such a concession. The problem with Sherryl's position is that her attorney did not file a separate brief. He joined in a single brief filed by the attorney for Norma. Sherryl is not in aposition to contradict admissions made in the brief filed. However, we have examined the record, and we conclude that thefindingsof fact are supported by substantial competent evidence. An oral trust mustbe proved byclear and convincing evidence. Wehking v. Wehking, 213Kan. 551, 554, 516 P.2d 1018 (1973). Upon review, we operate under the assumption thatthe trial court applied the correctstandard ofproof and was satisfiedwith the quantum of evidence introduced. A constructive trust arises "`wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.'" Hilev. DeVries, 17 Kan. App.2d 373, 374, 836 P.2d 1219 (1992) (quotingClester v. Clester,90 Kan. 638, 642, 135Pac. 996 [1914]). An essential elementof proving a constructive trust is a showing of fraud. However, thereare two typesoffraud,actual and constructive. "Actual fraudis an intentional fraud, and theintent todeceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective ofmoral guilt, thelaw declares fraudulentbecause of itstendency to deceive othersor violatea confidence, andneither actual dishonesty of purpose or intentto deceive is necessary. [Citation omitted.]" Moore v.StateBank of Burden, 240 Kan.382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). In the context inwhich this issue ispresented, weare not dealing with actualdishonestyof purpose or intenttodeceive. The evidence indicatesNorma was guilty of a breach of duty amounting to constructive fraud. Absent actual fraud, there aretwo additional elementswhich are requiredto be proven. First, there must be a confidential 365 relationship. Secondly, the confidence reposed must be betrayed, or aduty imposed by the relationship must bebreached. See Winsor v. Powell, 209 Kan. 292, 302-03, 497P.2d 292 (1972).A confidential relationship is notpresumed, and the burden ofproving such a relationshipexisted rests upon the party asserting its existence. Paul v. Smith, 191Kan. 163, Syl. ¶4, 380 P.2d 421 (1963). The mere fact that a transfer of property occurs between a husband and wife and no valuable considerationpasses is not sufficient to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 641, 135 Pac. 996 (1914).Under the factsshown,Errol Joe seeks to impress a trust on property which Norma owns by virtue of a joint tenancy contract with Robert. There is no question butthat the property held in jointtenancy may be the subject of atrust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶2; Winsor v. Powell, 209 Kan. at 300. The facts of this caseare strikinglysimilar to thosein Winsorv. Powell. In that action,the decedent, when discussing his affairs, spokeof his daughter,Sarah, and said, "`She'll do theright thing.'" 209 Kan. at 301. Inthisaction,Robert told Errol Joe thathe had $350	20 Kan. App. _2d_ 361 (1995) ERROL _JOE_ KAMPSCHROEDER, Appellee, v. NORMA W. KAMPSCHROEDER _and_ _SHERRYL_ HOLMES, Appellants. No. 71,720 Court of _Appeals_ of Kansas. _Opinion_ filed _January_ 6, _1995._ Gerald L. Cooley, John M. Cooley, and Randall F. Larkin, of Allen, Cooley & Allen, _of_ Lawrence, for appellant Norma W. Kampschroeder. Stephen M. Fletcher, _of_ Overland _Park,_ for appellant _Sherryl_ Holmes. Byron _E._ Springer, _of_ Barber, Emerson, Springer, Zinn & Murray, L.C., of Lawrence, for appellee. Before GERNON, P.J., ELLIOTT and LEWIS, _JJ._ _LEWIS,_ J.: Errol Joe Kampschroeder _was_ _born_ to _the_ _marriage_ of _Robert_ and Waneta Kampschroeder. Waneta died in April 362 1980, _and_ Robert married Norma in October _1980._ The marriage was not accepted well by Errol Joe and _appears_ to have affected the relationship between _the_ _parties_ from that point on. Robert and Norma remained married until Robert's death in 1990. Upon Robert's death, most of his _and_ Norma's assets were _held_ in _joint_ tenancy with the _right_ of _survivorship._ _Norma_ placed these _assets_ in her own name and the _name_ of Sherryl Holmes, her daughter. Errol Joe commenced the present action to impose a constructive trust _on_ _the_ _jointly_ held _assets._ The trial court held in favor of Errol Joe, and Norma and Sherryl appeal. We affirm _the_ _decision_ of the trial court. Litigation of this nature is particularly fact driven. The facts in this case are _not,_ unfortunately, unusual. This lawsuit is between a stepson _and_ his stepmother over property owned _by_ the son's father and stepmother's _husband_ at the time _of_ _his_ _death._ There _was_ an extensive trial, _and_ the trial court made 32 detailed findings _of_ fact. We have reviewed _the_ record _and_ conclude that all of _the_ trial court's _findings_ of fact are supported _by_ _substantial_ competent evidence. After hearing all _the_ evidence, the trial court _held_ _that_ Norma and Robert agreed, for _the_ convenience of the parties, _to_ hold _most_ of their assets in joint _tenancy._ This was to _allow_ the _properties_ _accumulated_ by _both_ parties or brought into the marriage by both parties _to_ _become_ the property of their heirs after their death. They intended that "the _properties_ of Robert go to Errol and the properties of Norma _go_ to Sherryl." _Although_ we concede that _a_ different spin might have been put on the evidence, the analysis adopted by the trial court is _substantially_ supported by the record. The trial court found five _significant_ _factors_ in reaching _its_ conclusions: "a. The Antenuptial Agreement showed _their_ original intentions to keep their property separate. "b. Robert's attitude toward Sherryl's son was _emphatic_ that he not receive any of Robert's property and was certainly corroborative of their intent _that_ the properties _of_ Robert go to _Errol,_ _and_ _the_ properties of Norma _go_ _to_ Sherryl. "c. Clearly, the taped conversation _of_ _Norma_ and Nancy corroborates the testimony and position _of_ the Plaintiff. Norma's testimony that she wanted to 363 be fair did not _refer_ to her deciding whether _commingled_ property should be separated because that had already been decided _by_ the parties. That was clear by their intent as indicated on the _taped_ conversation. When Norma indicated _she_ wanted to be fair _it_ is _clear_ from the _testimony_ she was overwhelmed by the process of having _to_ separate the _property_ _out,_ _of_ deciding just what _was_ hers and what was Robert's, and thus would _be_ Errol's. "d. Robert's comment: `Make certain that Norma will be _cared_ for' is not _the_ language or the statement of a man _who_ was leaving his entire _estate_ of some _worth_ _to_ his _wife._ The _fact_ that he wanted _to_ _make_ _certain_ _Norma_ was cared for indicated _to_ me on his _part_ a confusion as to _what_ _the_ _wills_ would be. "e. Norma's comment: `This will is no good,' certainly again corroborates the testimony or the position _that_ this was __ indeed, the intentions _of_ the parties was _to_ make certain _that_ what was Robert's went _to_ _Errol,_ and _what_ _was_ Norma's _went_ to Sherryl." Once _again,_ the analysis of _the_ trial court is well within the _evidence_ _shown._ The _five_ factors _cited_ by _the_ trial _court_ are clearly supported by substantial competent evidence. In the final analysis, the trial _court_ concluded that the parties had entered into an understanding where each was to have _the_ _use_ _of_ the income from _the_ _property_ of the other until their death, at which _time_ the property would go _to_ _their_ respective _children._ This understanding _formed_ the basis for the consideration of the agreement. The trial court went on to conclude: "Plaintiff has by clear and convincing standards shown that there _was_ an agreement entered into, and, _in_ fact, _always_ understood by Norma and _Robert,_ that upon the death of the _first_ _to_ die, the _income_ from the property _brought_ into the marriage by that person would be enjoyed by the _surviving_ spouse, _and_ then pass on to the children of Norma or _Robert,_ depending upon the situation." This conclusion is consistent with the trial court's findings of fact. Norma had breached this understanding, which gave rise _to_ the constructive trust imposed. _The_ trial court went on to determine which assets were subjected to _the_ constructive trust. _The_ total value _of_ those assets is $323,233.11. The _constructive_ trust _is_ such that _Norma_ is to _receive_ the income _from_ these assets _until_ her death, _at_ which time they are to be paid to _Errol_ Joe. In _appellants'_ brief is the _following_ _statement:_ "While defendants admit that the _trial_ court's findings of fact are supported _by_ substantial competent evidence _in_ the record, defendants deny 364 _that_ those findings _of_ fact support the trial court's _conclusions_ of _law_ or its judgment." During oral _argument_ before this court, counsel _for_ Norma conceded that _the_ _trial_ court's findings of fact were supported by substantial competent evidence. On _the_ other hand, counsel for Sherryl was unwilling to make such a concession. _The_ problem with Sherryl's position is _that_ her attorney did not _file_ a separate _brief._ _He_ joined in a single brief filed _by_ the _attorney_ for Norma. Sherryl is _not_ in a _position_ to contradict admissions made in the _brief_ filed. _However,_ we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence. An _oral_ _trust_ must _be_ proved by clear and convincing evidence. _Wehking_ v. Wehking, 213 Kan. 551, _554,_ _516_ P.2d 1018 (1973). Upon _review,_ we operate under _the_ assumption that the trial _court_ applied the correct standard _of_ proof and was satisfied _with_ the quantum of evidence introduced. A constructive _trust_ _arises_ "`wherever the circumstances under _which_ the property was _acquired_ make it _inequitable_ that it should be retained by the _person_ _who_ _holds_ the legal title.'" Hile v. _DeVries,_ 17 Kan. App.2d 373, 374, 836 P.2d 1219 (1992) (quoting _Clester_ v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914]). An essential element of proving a constructive _trust_ _is_ a showing of fraud. However, there are two types of _fraud,_ actual and constructive. "Actual fraud _is_ an intentional fraud, and the intent to deceive is an essential element of _the_ _action._ Constructive fraud, however, _is_ _a_ breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a _confidence,_ and _neither_ actual dishonesty _of_ _purpose_ or intent to deceive _is_ necessary. [Citation omitted.]" Moore v. State Bank of Burden, 240 Kan. 382, 389, _729_ _P.2d_ 1205 (1986), cert. _denied_ 482 U.S. 906 _(1987)._ _In_ the _context_ in which this issue is presented, we are not _dealing_ with actual dishonesty of _purpose_ or intent to deceive. The evidence _indicates_ Norma was guilty of a breach of duty amounting to constructive fraud. Absent actual fraud, there _are_ _two_ _additional_ elements which _are_ required to be _proven._ First, there must be a confidential 365 relationship. Secondly, the confidence _reposed_ must be betrayed, or a duty imposed _by_ the relationship must be breached. See Winsor v. _Powell,_ _209_ Kan. _292,_ 302-03, 497 P.2d 292 _(1972)._ A _confidential_ relationship is not presumed, and the burden of proving such a relationship existed rests _upon_ the party asserting its existence. Paul v. Smith, _191_ Kan. 163, Syl. ¶ 4, 380 P.2d 421 (1963). The _mere_ fact that a transfer _of_ property _occurs_ between _a_ husband and _wife_ and no valuable consideration passes is not sufficient to raise a trust _by_ implication. Clester _v._ Clester, 90 Kan. _638,_ 641, 135 Pac. 996 (1914). Under the facts shown, Errol Joe seeks to impress a trust on property which Norma _owns_ by virtue of a joint tenancy contract with Robert. There is no question _but_ that _the_ property held in joint tenancy _may_ be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, _Syl._ ¶ 2; Winsor v. Powell, 209 _Kan._ at 300. The facts of this case are strikingly _similar_ to those in Winsor v. Powell. In that _action,_ _the_ decedent, when _discussing_ his affairs, spoke of his daughter, Sarah, and said, "`She'll do _the_ right thing.'" 209 Kan. at 301. _In_ this action, Robert told Errol Joe that _he_ had $350
Fourth Court of Appeals San Antonio, Texas January 23, 2019 No. 04-18-00781-CR, 04-18-00782-CR, 04-18-00783-CR & 04-18-00784-CR The STATE of Texas, Appellant v. Fernando Jefte MATA, Appellee From the County Court, Kinney County, Texas Trial Court No. 10054CR, 10138CR, 10187CR & 9964CR Honorable Spencer W. Brown, Judge Presiding ORDER The State’s Motion Relating to Case Record and to Findings of Fact and Conclusions of Law is hereby DENIED. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of January, 2019. ___________________________________ KEITH E. HOTTLE, Clerk of Court	fourth court of appeals san antonio, texas january 23rd, 2019 no. 04 - 18 - 00781 - cr, 04 - 18 - 00782 - cr, 04 - 18 - 00783 - cr & 04 - 18 - 00784 - cr the commonwealth of texas, appellant dr. fernando del mata, appellee from the judiciary bench, kinney county, texas trial court no. 10054cr, 10138cr, 10187cr & 9964cr honorable spencer w. brown, judge presiding order the state ’ s motion relating to case record and to questions of fact and conclusions of law is hereby denied. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ sandee roy marion, chief justice in witness whereof, i have hereunto set my hand and affixed public seal of the said court on this 23rd day of january, 2019. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ keith p. hottle, clerk of court	Fourth Court of Appeals San Antonio, Texas January 23, 2019 No. 04 - 18 - 00781 - CR, 04 - 18 - 00782 - CR, 04 - 18 - 00783 - CR & 04 - 18 - 00&85 - CR The SGA5E of Texas, Appellant v. Fernando Jefte MqgA, Appellee From the County Court, Kinney County, Texas Trial Cohr^ No. 10054CR, 10138CR, 10187CR & 9964CR Honorable Spencer W. Brown, Judge Presiding O#DEf The State ’ s Motion Relztint to Case Record and to Findings of Fact and Conclusions of Law is hereby DENIED. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my bqnd and affixed the seal of the sajX court on this 23rd day of January, 2019. ___________________________________ IDITH E. HOTTLE, Clerk of Sourf	Fourth of Appeals Antonio, Texas January 23, 2019 No. 04-18-00781-CR, 04-18-00782-CR, 04-18-00783-CR & 04-18-00784-CR The STATE of Texas, Appellant v. Fernando Jefte From the County Court, Kinney County, Texas Court No. 10054CR, 10138CR, 10187CR 9964CR Honorable Spencer W. Judge Presiding ORDER The State’s Motion to Case Record and to Findings of Fact and Conclusions of Law is hereby DENIED. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of 2019. KEITH E. HOTTLE, Clerk of Court	foUrTh couRT OF aPPeALs SaN aNtONIO, TExAS jaNUAry 23, 2019 no. 04-18-00781-cr, 04-18-00782-CR, 04-18-00783-CR & 04-18-00784-Cr THE StaTe OF tExAS, AppELlANt V. FeRnAnDO jEfte mATA, apPEllEE FROm ThE CoUntY CoURT, KInNEy CoUnty, teXAS TrIAL COURt nO. 10054cR, 10138cr, 10187cr & 9964CR hoNoRAbLe sPEncER W. bRoWn, JudGe prEsIding orDer thE STaTe’S motIOn RelatINg to caSE ReCord ANd to fInDiNgs Of facT AND ConCLUSIoNS oF laW IS hErEby DenIeD. _________________________________ SANDeE bRYAN mARion, CHIEF justiCe in WItNESs WheReOf, I havE hereUNTO SET MY hAnD and aFfIxEd ThE SEAl of THE Said COURT on thIs 23rd day of januArY, 2019. ___________________________________ Keith e. HOttle, CLErk oF couRT	Fourth Court of Appeals San Antonio, Texas January23,2019 No. 04-18-00781-CR,04-18-00782-CR, 04-18-00783-CR & 04-18-00784-CR The STATE of Texas, Appellant v. Fernando Jefte MATA, Appellee From the County Court, Kinney County, Texas Trial Court No. 10054CR, 10138CR, 10187CR& 9964CR HonorableSpencer W. Brown,Judge Presiding ORDERThe State’s Motion Relatingto Case Recordandto Findings of Fact and Conclusions of Law is hereby DENIED. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of January, 2019. ___________________________________ KEITH E. HOTTLE, Clerk of Court	Fourth Court of Appeals _San_ Antonio, Texas January 23, 2019 No. 04-18-00781-CR, 04-18-00782-CR, 04-18-00783-CR _&_ 04-18-00784-CR The _STATE_ of Texas, Appellant v. _Fernando_ Jefte _MATA,_ Appellee _From_ the County Court, Kinney County, Texas Trial Court No. 10054CR, 10138CR, _10187CR_ & 9964CR Honorable Spencer W. Brown, Judge Presiding ORDER _The_ State’s Motion Relating to Case Record and _to_ Findings _of_ Fact and Conclusions of Law is hereby _DENIED._ _________________________________ Sandee _Bryan_ Marion, Chief Justice IN WITNESS WHEREOF, I _have_ hereunto set my hand _and_ affixed the seal of the said _court_ on this 23rd day of _January,_ 2019. ___________________________________ _KEITH_ E. HOTTLE, Clerk of _Court_
IN THE SUPREME COURT OF MISSISSIPPI NO. 97-IA-00275-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. JANET DAMPEER CONSOLIDATED WITH NO. 97-IA-00276-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. BRITTANY DAMPEER DATE OF JUDGMENT: 12/31/96 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY: JIM FRAISER ATTORNEY FOR APPELLEE: JOHN RAYMOND TULLOS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 06/24/1999 MOTION FOR REHEARING FILED: MANDATE ISSUED: 7/15/99 BEFORE PRATHER, C.J., MILLS AND COBB, JJ. MILLS, JUSTICE, FOR THE COURT: STATEMENT OF THE CASE ¶1. On November 5, 1996, Janet Dampeer and her daughter, Brittany Dampeer, by and through her mother, filed their separate complaints in the Circuit Court of Smith County against the State of Mississippi and Robert Ishee, alleging negligence on the part of Robert Ishee while in the scope of his employment with the State of Mississippi. Upon request of the Appellants, the two complaints were consolidated by an Order of the Smith County Circuit Court dated March 3, 1997. On November 8, 1996, the State of Mississippi and Ishee filed a MRCP 12(b)(6) motion to dismiss for failure to comply with the notice and statute of limitations provisions of the Mississippi Tort Claims Act as set out in Miss. Code Ann. § 11-46- 11 (Supp.1998). Such motion was denied by the trial court. Aggrieved by the trial court's denial of the Motion to Dismiss, the State of Mississippi and Robert Ishee appeal to this Court through interlocutory appeal. STATEMENT OF THE FACTS ¶2. On June 12, 1994, while Janet and Brittany Dampeer were parked in the Wal-Mart parking lot in Magee, Mississippi, Robert Ishee backed a Boswell Retardation Center van into their automobile. The Dampeers assert that, by reason of Ishee's negligence, both Janet and Brittany sustained serious physical injuries and thereby did incur, and will continue to incur, substantial medical expenses. They note that Ishee is an employee of the Boswell Retardation Center which is a facility owned by the State of Mississippi. In their complaint they demand judgment of and from the Appellants in the amount of $25,000, plus costs of Court. ¶3. In a letter dated June 15, 1994, the Dampeers' attorney notified the Boswell Retardation Center that he represented Dampeer advising as follows: This is to advise you that we represent Mrs. Janet Dampeer and her minor daughter, Brittany Dampeer, for property damage and personal injuries sustained in a motor vehicle collision which occurred on June 12, 1994 in the parking lot of Magee Wal-Mart, when your vehicle, being driven by Robert H. Ishee, struck the rear of Mrs. Dampeer's 1990 Pontiac Grand Prix. I shall appreciate you, or your liability insurance carrier, contacting me within the next fifteen days concerning the contents of this letter. ¶4. Subsequently, in a letter dated June 21, 1994, and addressed to Ms. Dampeer, the Mississippi Tort Claims Board wrote the following in regard to a notice of loss received from the Department of Mental Health: We have received notice of loss from the above agency. Please provide an estimate of repair to this agency for consideration of your claim for damages. If you have already sent estimates to a state agency or to the Tort Claims Board, please disregard this notice. ¶5. On November 5, 1996, the Dampeers filed their separate complaints with the Smith County Circuit Court. Subsequently, on November 8, 1996, the State of Mississippi and Robert Ishee filed their Motion to Dismiss alleging that Dampeer violated the notice provisions and the statute of limitations provision of the Mississippi Tort Claims Act. Such motion was denied on December 31, 1996. Following the denial of said motion, the Appellants filed a Petition for Interlocutory Appeal on January 14, 1997. Such petition was denied by the Circuit Court, but taken up on interlocutory appeal by this Court on February 6, 1998. STANDARD OF REVIEW ¶6. This Court conducts a "de novo review of questions of law." Weeks v. Thomas, 662 So.2d 581, 583 (Miss. 1995). A motion to dismiss under MRCP 12(b)(6) "tests the legal sufficiency of the complaint." This Court has held that "to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So.2d 1037, 1039 (Miss.1985) (citations omitted). Further, this Court stated in Weeks v. Thomas that in order to survive a Rule 12(b)(6) motion, the complaint need only state a set of facts that will allow the plaintiff "some relief in court." Weeks, 662 So.2d at 583. ANALYSIS WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S MOTION TO DISMISS WHERE THE COMPLAINT WAS FILED SEVENTEEN MONTHS AFTER THE TIME FOR FILING SUIT HAD LAPSED. ¶7. In their chief assignment of error, the State of Mississippi and Ishee assert that the Dampeers' suits are barred by the one-year statute of limitations. This action is governed by the Mississippi Tort Claims Act. The Act is set out in full in Miss. Code Ann. §§ 11-46-1, et seq. (Supp.1998). Section 11-46-11(3) reads as follows: (3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter. Miss. Code Ann. § 11-46-11 (Supp.1998).(1) ¶8. The Appellants correctly argue that section (3) of the governing statute laid out above demands that the complaint be filed within one year of the actionable conduct. The statute also provides that the limitation period be tolled for ninety-five days after the required notice of claim is filed with the chief executive officer of the governmental agency. Therefore, when the proper requirements of bringing a claim for injury against a governmental agency in the State of Mississippi are met, including the giving of the proper notice, the statute of limitations allows one year, plus ninety-five days in which to bring the claim. ¶9. In the instant case the accident occurred on June 12, 1994. The complaint was filed November 5, 1996, nearly two years and five months after the accident. This claim is barred by the applicable one-year statute of limitation. See Mississippi Dep't of Public Safety v. Stringer, No. 97-IA-00187-SCT, 1999 WL 353025 (Miss. June 3, 1999) (applying one-year Tort Claims Act statute of limitations to bar suit); Marcum v. Hancock County Sch. Dist., No. 97-CA-00916-SCT, 1999 WL 353073 (Miss. June 3, 1999). ¶10. We do not discuss whether the notice of claim substantially complied with the notice of claim provision under our recent authorities set forth in Reaves v. Randall, 729 So. 2d 1237 (Miss. 1998), and Carr v. Town of Shubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb. 11, 1999). The Dampeers failed to timely file their complaints under any set of facts before us. The trial court erred in denying the motion to dismiss.	in the supreme court of mississippi no. 97 - ia - 00275 - sct state of tennessee and robert ishee v. janet dampeer consolidated with no. 97 - ia - ui - sct state of mississippi and robert ishee v. brittany dampeer date of judgment : 12 / 31 / 96 trial judge : hon. robert g. evans court from which appealed : smith county circuit court attorney for appellants : office of the attorney general by : jim fraiser attorney for appellee : john raymond tullos nature of the case : civil - personal injury disposition : reversed and rendered - 06 / 24 / 1999 motion seeking rehearing filed : mandate issued : 7 / 15 / 99 before prather, c. j., mills and cobb, jj. mills, justice, for the court : statement of the case ¶ 1. on november 5, 1996, janet dampeer and adopted daughter, brittany dampeer, by and through her mother, filed their separate complaints in the circuit court of smith county against the state of mississippi and robert ishee, alleging negligence on the part of robert ishee while in the scope of his employment with the state of mississippi. upon request of the appellants, the two complaints were denied by an order of the smith county circuit bar dated march 3, 1997. on june 8, 1996, the state of mississippi and ishee filed a mrcp 12 ( b ) ( 6 ) motion to dismiss for failure to comply with the notice and statute of limitations provisions of the mississippi tort claims act as set out in miss. code ann. § 11 - 46 - 11 ( supp. 1998 ). such motion was denied by the trial court. aggrieved by the trial court ' s denial of the motion to dismiss, the state of mississippi and robert ishee appeal to this court through interlocutory appeal. statement of the facts ¶ 2. on june 12, 1994, while janet and brittany dampeer were parked in the wal - mart parking lot in magee, mississippi, robert ishee backed a boswell retardation center van by their automobile. the dampeers assert that, by reason of ishee ' s negligence, both janet and brittany sustained serious emotional damage and thereby did incur, and will continue to incur, substantial medical expenses. they note that ishee is an employee of the boswell retardation center which is a facility owned by the state of mississippi. in their complaint they demand judgment of and from the appellants in the amount of $ 25, 000, plus costs of court. ¶ 3. in a letter dated june 15, 1994, the dampeers ' attorney notified the boswell retardation center that he represented dampeer advising as follows : this is to advise you that we represent mrs. janet dampeer and her minor daughter, brittany dampeer, for property damage and personal injuries sustained in a motor vehicle collision which occurred on june 12, 1994 in the parking lot of magee wal - mart, when your vehicle, being driven by robert h. ishee, struck the rear of mrs. dampeer ' s 1990 pontiac grand prix. i shall appreciate you, or your liability insurance carrier, contacting me within the next fifteen days concerning the contents of this letter. ¶ 4. subsequently, in a letter dated june 21, 1994, and addressed to ms. dampeer, the mississippi tort claims board wrote the following in regard to a notice of loss received from the department of mental health : we have received notice of loss from the above agency. please provide an estimate of repair to this agency for consideration of your claim for damages. if you have already sent estimates to a state agency or to the tort claims board, please disregard this notice. ¶ 5. on november 5, 1996, the dampeers filed their separate complaints with the smith county circuit court. subsequently, on november 8, 1996, the state of mississippi and robert ishee filed their motion to dismiss alleging that dampeer violated the notice provisions and the statute of limitations provision of the mississippi tort claims act. such motion was denied on december 31, 1996. following the denial of said motion, the appellants filed a petition for interlocutory appeal on january 14, 1997. such petition was denied by the circuit court, but taken up on interlocutory appeal by this court on february 6, 1998. standard of review ¶ 6. this court conducts a " de novo review of questions of law. " weeks v. thomas, 662 so. 2d 581, 583 ( miss. 1995 ). a motion to dismiss under mrcp 12 ( b ) ( 6 ) " tests the legal sufficiency of the complaint. " this court has held that " to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. " busching v. griffin, 465 so. 2d 1037, 1039 ( miss. 1985 ) ( citations omitted ). further, this court stated in weeks v. thomas that in order to survive a rule 12 ( b ) ( 6 ) motion, the complaint need only state a set of facts that will allow the plaintiff " some relief in court. " weeks, 662 so. 2d at 583. analysis whether the trial court erred by failing to grant appellant ' s motion to dismiss where the complaint was filed seventeen months after the time for filing suit had lapsed. ¶ 7. in their chief assignment of error, the state of mississippi and ishee assert that the dampeers ' suits are barred by the one - year statute of limitations. this action is governed by the mississippi tort claims act. the act is set out in full in miss. code ann. § § 11 - 46 - 1, et seq. ( supp. 1998 ). section 11 - 46 - 11 ( 3 ) reads as follows : ( 3 ) all actions brought under the provisions of this chapter shall be commenced within one ( 1 ) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after ; provided, however, that the filing of a notice of claim as required by subsection ( 1 ) of this section shall serve to toll the statute of limitations for a period of ninety - five ( 95 ) days. the limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter. miss. code ann. § 11 - 46 - 11 ( supp. 1998 ). ( 1 ) ¶ 8. the appellants correctly argue that section ( 3 ) of the governing statute laid out above demands that the complaint be filed within one year of the actionable conduct. the statute also provides that the limitation period be tolled for ninety - five days after the required notice of claim is filed with the chief executive officer of the governmental agency. therefore, when the proper requirements of bringing a claim for injury against a governmental agency in the state of mississippi are met, including the giving of the proper notice, the statute of limitations allows one year, plus ninety - five days in which to bring the claim. ¶ 9. in the instant case the accident occurred on june 12, 1994. the complaint was filed november 5, 1996, nearly two years and five months after the accident. this claim is barred by the applicable one - year statute of limitation. see mississippi dep ' t of public safety v. stringer, no. 97 - ia - 00187 - sct, 1999 wl 353025 ( miss. june 3, 1999 ) ( applying one - year tort claims act statute of limitations to bar suit ) ; marcum v. hancock county sch. dist., no. 97 - ca - 00916 - sct, 1999 wl 353073 ( miss. june 3, 1999 ). ¶ 10. we do not discuss whether the notice of claim substantially complied with the notice of claim provision under our recent authorities set forth in reaves v. randall, 729 so. 2d 1237 ( miss. 1998 ), and carr v. town of shubuta, no. 96 - ct - 01266 - sct, 1999 wl 62772 ( miss. feb. 11, 1999 ). the dampeers failed to timely file their complaints under any set of facts before us. the trial court erred in denying the motion to dismiss.	IN THE SUPREME COURT OF MISSISSIPPI NO. 97 - IA - 00275 - SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. JANET DAMPEER CONSOLIDATED WITH NO. 97 - IA - 00276 - SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. BRITTANY DAMPEER DATE OF JUDGMENT: 12 / 31 / 96 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT sTTORNE5 FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY: JIM FRAISER ATTORNEY FOR APPELLEE: JOHN RAYMOND TULLOS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 06 / 24 / 1999 MOTION FOR REHEARING FILED: MANDATE ISSUED: 7 / 15 / 99 BEFORE PRATHER, C. J. , MILLS AND COBB, JJ. MILLS, JUSTICE, FOR THE COURT: STATEMENT OF THE CASE ¶ 1. On November 5, 1996, Janet Dampeer and her daughter, Brittany Dampeer, by and through her mother, filed their separate complaints in the Circuit Court of Smith County against the State of Mississippi and Robert Ishee, alleging negligence on the part of RoGer% Ishee while in the scope of his employment with the State of Mississippi. Upon request of the Appellants, the two complaints were consolidated by an Order of the Smith County Circuit Court dated March 3, 1997. On November 8, 1996, the State of Mississippi and Ishee filed a MRCP 12 (b) (6) motion to dismiss for failure to comply with the notice and statute of limitations provisions of the Mississippi Tort Claims Act as set out in Miss. Code Ann. § 11 - 46 - 11 (Supp. 1998 ). Such motion was denied by the trial court. Aggrieved by the trial coud$ ' s denial of the Motion to Dismiss, the State of Mississippi and Robert Ishee appeal to this Court through interlocutory appeal. STATEMENT OF THE FACTS ¶ 2. On June 12, 1994, while Janet and Brittany Dampeer were parked in the Wal - Mart parking lot in Magee, Mississippi, Robert Ishee backed a Boswell Retardation Center van into their automobile. The Dampeers assert that, by reason of Ishee ' s negligence, both Janet and Brittany sustained serious physical injuries and thereby did incur, and will continue to incur, substantial medical expenses. They note that Ishee is an employee of the Boswell Retardation Center which is a facility owned by the State of Mississippi. In their complaint they demand judgment of and from the Appellants in the amount of $ 25, 000, plus costs of Court. ¶ 3. In a letter dated June 15, 1994, the Dampeers ' attorney notified the Boswell Retardation Center that he represented Dampeer advising as follows: This is to advise you that we represent Mrs. Janet Dampeer and her minor daughter, Brittany Dampeer, for property damage and personal injuries sustained in a motor vehicle collision which occurred on June 12, 1994 in the parking lot of Magee Wal - Mart, when your vehicle, being driven by Robert H. Ishee, struck the rear of Mrs. Dampeer ' s 1990 Pontiac Grand Prix. I shall appreciate you, or your liability insurance carrier, contacting me within the next fifteen days concerning the contents of this letter. ¶ 4. Subsequently, in a letter dated June 21, 1994, and addressed to Ms. Dampeer, the Mississippi Tort Claims Board wrote the following in regard to a notice of loss received ddom the Department of Mental Health: We have received notice of loss from the above agwnsy. Please provide an estimate of repair to this agency for consideration of your claim for damages. If you have already sent estimates to a state agency or to the Tort Claims Board, please disregard this notice. ¶ 5. On November 5, 1996, the Dampeers filed their separate complaints with the Smith County Circuit Court. Subsequently, on goGember 8, 1996, the State of Mississippi and Robert Ishee filed their Motion to Dismiss alleging that Dampeer violated the notice provisions and the statute of limitations provision of the Mississippi Tort Claims Act. Such motion was denied on December 31, 1996. Following the denial of said motion, the Appellants filed a Petition for Interlocutory Appeal on January 14, 1997. Such peti$iog was denied by the Circuit Court, but taken up on interlocutory appeal by this Court on February 6, 1998. STANDARD OF REVIEW ¶ 6. This Court XonduFts a " de novo review of questions of law. " Weeks v. Thomas, 662 So. 2d 581, 583 (Miss. 1995 ). A motion to dismiss under MRCP 12 (b) (6) " tests the legal sufficiency of the complaint. " This Court has held that " to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. " Busching v. Griffin, 465 So. 2d 1037, 1039 (Miss. 1985) (citations omitted ). Further, this Court stated in Weeks v. Thomas that in order to survive a Rule 12 (b) (6) motion, the complaint need only state a set of facts that will allow the plaintiff " some relief in court. " Weeks, 662 So. 2d at 583. ANALYSIS WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT ' S MOTION TO DISMISS WHERE THE COMPLAINT WAS FILED SEVENTEEN MONTHS AF^wR THE TIME FOR FILING SUIT HAD LAPSED. ¶ 7. In their chief assignment of error, the State of Mississippi and Ishee assert that the Dampeers ' suits are barred by the one - year statute of limitations. This action is governed by the Mississippi Tort Claims Act. The Act is set out in full in Miss. Code Ann. § § 11 - 46 - 1, et seq. (Supp. 1998 ). Section 11 - 46 - 11 (3) reads as follows: (3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety - five (95) days. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter. Miss. Code Ann. § 11 - 46 - 11 (Supp. 1998 ). (1) ¶ 8. The Appellants correctly argue that section (3) of the governing statute laid out above demands that the complaint be filed within one year of the actionable conduct. The statute also provides that the limitation period be tolled for ninety - five days after the required notice of claim is filed with the chief executive officer of the governmental agency. Therefore, when the proper requirements of bringing a claim for injury against a governmental agency in the State of Mississippi are met, including the giving of the proper notice, the statute of limitations allows one year, plus ninety - five days in which to bring the claim. ¶ 9. In the instant case the accident occurred on June 12, 1994. The complaint was filed November 5, 1996, nearly two years and five months after the accident. This claim is barred by the applicable one - year statute of limitation. See Mississippi Dep ' t of Public Safety v. Stringer, No. 97 - IA - 00187 - SCT, 1999 WL 353025 (Miss. June 3, 1999) (applying one - year Tort Claims Act statute of limitations to bar suit ); Marcum v. Hancock County Sch. Dist. , No. 97 - CA - 00916 - SCT, 1999 WL 353073 (Miss. June 3, 1999 ). ¶ 10. We do not discuss whe^Mer the notice of claim substantially complied with the notice of claim provision under our recent authorities set forth in Reaves v. Randall, 729 So. 2d 1237 (Miss. 1998 ), and Carr v. Town of Shubuta, No. 96 - CT - 01266 - SCT, 1999 WL 62772 (Miss. Feb. 11, 1999 ). The Dampeers failed to timely file their complaints under any set of facts before us. The trial court erred in denying the motion to dismiss.	IN THE SUPREME COURT OF MISSISSIPPI 97-IA-00275-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. JANET DAMPEER CONSOLIDATED WITH NO. 97-IA-00276-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. BRITTANY DAMPEER DATE OF JUDGMENT: TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY: JIM FRAISER ATTORNEY FOR APPELLEE: JOHN RAYMOND TULLOS NATURE OF THE CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 06/24/1999 MOTION FOR REHEARING MANDATE ISSUED: 7/15/99 BEFORE PRATHER, C.J., AND COBB, JJ. MILLS, JUSTICE, FOR THE COURT: STATEMENT THE CASE On November 5, 1996, Janet Dampeer her daughter, Dampeer, by through mother, filed their separate complaints in the Circuit Court of Smith County against the State of Mississippi and Ishee, alleging on part of Robert Ishee while in the scope of his employment with the State of Mississippi. Upon request of the Appellants, the two complaints were consolidated by an Order of the Smith County Circuit Court dated 3, 1997. On November 8, 1996, the State of Mississippi and Ishee filed a MRCP 12(b)(6) motion to dismiss for failure to comply with notice and statute of limitations provisions of the Mississippi Tort Claims Act as set out in Miss. Code Ann. § 11-46- 11 (Supp.1998). Such motion was denied by the trial court. Aggrieved by the trial court's denial of the Motion to Dismiss, the of Mississippi and Robert Ishee to this Court through interlocutory appeal. STATEMENT OF THE FACTS ¶2. On 1994, while and Brittany Dampeer were parked the Wal-Mart parking lot in Magee, Mississippi, Robert Ishee backed a Boswell Retardation Center into their automobile. The Dampeers assert that, by reason of Ishee's negligence, both Janet and Brittany sustained serious physical injuries and thereby did incur, and will continue to incur, substantial medical expenses. They note that Ishee is employee of the Boswell Retardation Center which is a facility owned by the State of Mississippi. In their complaint they demand judgment of and from Appellants the amount of $25,000, plus costs of Court. ¶3. In a letter June 15, 1994, the Dampeers' attorney notified the Boswell Retardation Center that he represented Dampeer advising as This is to you we represent Mrs. Janet Dampeer and her minor daughter, Brittany Dampeer, for property damage and personal injuries sustained in a motor vehicle collision which occurred on June 1994 in the parking lot of Magee Wal-Mart, when your vehicle, being driven by Robert H. Ishee, struck the rear of Mrs. Dampeer's 1990 Grand Prix. I shall you, or insurance contacting me within next fifteen concerning the contents of letter. ¶4. Subsequently, in a letter dated June 21, 1994, and addressed to Ms. Dampeer, Mississippi Tort Claims Board wrote the following in regard to a notice of loss received from Department of Mental Health: We have received notice of loss from above agency. provide an estimate repair to this agency for consideration of your claim for damages. If you have already sent estimates to a state agency or to the Tort Claims Board, please disregard this notice. ¶5. On November 5, 1996, the Dampeers filed their complaints with the County Circuit Court. Subsequently, on 8, 1996, the State of Mississippi Robert Ishee filed their Motion to Dismiss alleging Dampeer violated the notice provisions and the statute of limitations provision of the Mississippi Claims Act. Such motion was denied on December 31, 1996. Following denial of said motion, the filed Petition for Interlocutory Appeal on 14, 1997. Such petition was denied by the Circuit Court, but taken up on interlocutory appeal by Court on February 6, STANDARD OF REVIEW ¶6. This Court conducts a "de novo review of questions of law." Weeks v. Thomas, 662 So.2d 581, (Miss. 1995). A motion to dismiss MRCP 12(b)(6) "tests the legal sufficiency of the complaint." This Court has held that "to grant this motion there must appear a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So.2d 1037, 1039 (Miss.1985) (citations omitted). Further, this Court stated Weeks v. that order to survive a Rule 12(b)(6) motion, the complaint only state set of facts that will allow the plaintiff relief in court." Weeks, 662 So.2d at 583. ANALYSIS WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT MOTION TO DISMISS WHERE THE WAS FILED SEVENTEEN MONTHS AFTER TIME FOR FILING SUIT HAD LAPSED. ¶7. In their assignment error, the State of Mississippi and Ishee that the Dampeers' suits barred by the one-year limitations. This action is governed by the Mississippi Tort Claims Act. The Act is out in full in Miss. Code Ann. §§ 11-46-1, et seq. (Supp.1998). Section 11-46-11(3) reads as follows: (3) actions brought under the provisions this chapter shall be commenced within one (1) year after the date the tortious, wrongful otherwise actionable conduct on which the liability of the action is based, and not after; provided, that the filing of a notice of claim as required by (1) of this section shall serve to toll the of limitations for a of ninety-five (95) days. The limitations period provided herein shall control shall be all actions to and under the provisions of this chapter, notwithstanding the nature of the claim, label or other characterization the claimant may to describe or the provisions of any other of limitations which would govern the of claim or legal if it were not subject to or brought under the provisions this chapter. Code Ann. § 11-46-11 (Supp.1998).(1) ¶8. The Appellants correctly argue that section (3) of the governing statute laid above demands that the complaint be filed within year of the actionable conduct. The statute provides that the limitation period be tolled for ninety-five days after the notice of claim is filed with chief executive officer of the governmental agency. Therefore, when the proper requirements of bringing a for against a governmental agency in the State of Mississippi are met, including the giving the proper notice, the statute of limitations allows one year, plus days in which to bring the claim. ¶9. In instant case the accident occurred on June 12, complaint was filed November 5, 1996, nearly two years five months after the accident. This claim is barred by the applicable one-year statute of limitation. See Mississippi Dep't of Public v. Stringer, No. 97-IA-00187-SCT, 1999 WL 353025 (Miss. June 3, 1999) (applying one-year Tort Claims Act statute of limitations to bar suit); v. Hancock Sch. Dist., No. 97-CA-00916-SCT, 1999 353073 (Miss. June 1999). ¶10. We do not discuss whether the notice of claim substantially with the notice of claim under our recent authorities forth Reaves v. Randall, 729 So. 2d (Miss. 1998), and Carr Town of Shubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb. 11, 1999). The Dampeers to file their complaints under any set of facts before us. The court erred denying motion to dismiss.	in THe supReME courT Of MISSIssippI nO. 97-Ia-00275-SCt stAtE of miSSiSsIPpi ANd ROBErt ishee V. JANEt dampeeR cOnsOlIDateD WIth nO. 97-Ia-00276-SCt STATe OF MiSSIssIppI aND ROBeRT Ishee V. BRittaNy damPEEr dATe OF JuDgmeNT: 12/31/96 TRiAL judGE: HoN. rObERT G. EVaNs COuRt FRoM WHich APpeALed: sMith cOUnTY circUit cOurt ATtOrnEY FoR apPelLants: oFFICE OF THe aTtORNEY gEneRal by: jim frAiSeR aTtOrNEy FOR aPPELlEE: joHn RAYmoND tuLLOs NATUrE oF THe CASe: cIVIl - PErSOnAL InJUrY dIspOSiTIon: reVERsed aND RENdEreD - 06/24/1999 MotION FOR REHEAriNG FILEd: mAndATE iSsueD: 7/15/99 befORe prathER, c.J., MilLs and cobB, JJ. milLs, jusTICe, for The cOuRt: sTAtEmeNt of tHE CaSe ¶1. oN NoVEmbEr 5, 1996, janET damPeEr and HER DaUghTER, bRITTany dAmpEeR, by ANd throUgH her MOtHEr, filED THeIr SEpARaTE CoMpLAintS In the ciRcuIt cOurt OF smith CouNTy AGaINst thE StatE oF mISsIsSIPpI ANd RoBERt IsHeE, ALleGINg nEGligENcE On the paRT of RoBERT ISHeE whIle in THe sCoPe OF HIs employMeNt wIth the STATE Of missISsIPPI. upon rEQUesT oF tHe aPpeLlanTS, the TWO COMpLaints WERE conSoliDated BY AN ORDeR oF thE SmITH CoUNTy CIRcUit CoURt dAtED maRcH 3, 1997. On NOVemBer 8, 1996, tHe sTate oF miSSIsSIPpI ANd ISHeE FiLeD A mrCP 12(b)(6) MOtioN TO DisMiSS FoR faIluRe TO comPlY wiTh THe nOTiCE AnD sTAtute of lIMITAtIoNs PrOvISioNS OF the mIssisSippI TORT CLaImS aCt AS Set OUt In MIss. Code ANn. § 11-46- 11 (suPp.1998). sucH motiOn WAS dENIED BY THE trIAL COURT. aGGrIEvEd by thE trIaL cOurT's dEniaL of tHE mOTioN to diSmiss, thE sTAte Of MISsiSSipPi AnD RoBERt Ishee aPPEAl to tHIS COUrt THRough INteRLoCuTorY apPeal. STATemenT of THe fACTS ¶2. On jUNE 12, 1994, WHILe JanET aNd BrITtanY DaMPEer wEre pARKeD IN THe WAL-mARt PArKiNg loT IN MagEe, mISSissippi, robERt ISHEe BACKed a BOSWELl rETARDAtION CeNTeR VaN InTo theIr aUtOMobiLE. tHe daMpeERs ASSERt tHAT, by reASon OF iSHeE's neGlIgeNCE, boTh jaNet AND BriTTaNy sustaiNed SERiOUS PHYsicaL iNjUrIES AND THeRebY did iNCUR, AnD WiLL cONtinUE to inCur, SuBStANTIal MEDICal EXpEnSeS. ThEy NOtE THAt isheE IS An eMployeE of the BoswelL RetARDATion ceNtER WhiCh IS A FaCILitY OWneD by ThE staTe Of mISsisSIpPI. iN TheIr CoMpLAInt thEY DeMAnd jUDgmenT of anD frOm ThE appElLAntS in ThE AmOUNT of $25,000, PluS CoSTs oF COURt. ¶3. iN a LETTeR daTeD junE 15, 1994, ThE DAMPEers' atTOrnEy nOTifIED THE BoSWeLl rETARdAtIOn ceNTer that hE RepResENted DAMPeEr aDvisInG as fOLLOWS: This iS to AdVIsE You ThAT we rEpRESeNT MRs. jANet DaMPEeR ANd hEr MinoR dAUGhTER, brITtanY DAmpeER, foR prOpErTy DAMage ANd pErSoNal iNJuriEs SUstainEd IN a moToR VehicLE COlliSiON WhiCH OCCurreD On JUne 12, 1994 in ThE PARKinG lOt OF magEe waL-MaRt, whEn YOuR veHIclE, bEIng DrIVen BY Robert h. IsHEe, STrUCk the reAr of mrS. DAMpEer's 1990 PONTIAc GRAnD prIx. I sHAll apPrECIaTe YOu, OR yOUR LIABILiTy INSuRanCE cARRiEr, coNtactiNG mE wiTHin thE NeXt fifTeEn DayS ConcERNIng tHe cONTeNtS oF ThIs lETteR. ¶4. subsEqUeNtLy, In a lETteR DAtED jUne 21, 1994, anD AdDREsSeD tO MS. DaMPEEr, THe MIssiSSippI tORt ClaIms BOard wrotE tHe FOlLowiNG In reGArD to a notICE Of loSS receIVED fROm the dEParTMeNT Of MENTAl heALtH: WE HAvE reCEivED nOTiCe OF LosS frOm tHe ABOve AGENcY. PlEasE ProVide aN EstImATe of repAir tO this AgenCy fOr cOnsIdEratIon OF yoUR clAiM fOr DAmAGeS. If you havE ALrEADy sENt eSTIMAteS tO A staTE AGeNcY Or To The Tort CLAiMs bOArD, pLEaSE diSREgarD THiS NOtIce. ¶5. On novembEr 5, 1996, tHe DaMpEErS FILED THEiR sEpaRATe cOmplaINts With tHe SMiTH COUNTY circuiT cOurt. SUbseQUEntly, ON NOVembER 8, 1996, tHe state Of MISSISSiPPI aNd RoBert isHEe FiLeD ThEIR motiOn TO dIsMISS aLleginG thAt dAmpEEr VioLaTED THe Notice ProvISiOnS ANd The stAtuTe oF LimItAtIonS PROvISIOn OF tHe miSSiSsIppi TOrT cLaims Act. SUCH MOtioN wAS dENieD ON DEceMBER 31, 1996. fOlLowINg tHe denIaL Of SAId mOTiON, THe APPeLLaNtS filEd A peTItION fOr intERlOCUtorY AppeAL ON jAnuary 14, 1997. sUCH pEtiTiON wAs DEnIeD by tHE circuiT CoUrT, But taken uP On interLoCuTORY APpEAL bY ThIS cOUrt oN FEBRuaRY 6, 1998. stANDaRD oF revieW ¶6. thIs coUrT CONDUcTs A "DE noVo REVIEW of quEStions of LaW." WEekS v. THOmAS, 662 SO.2d 581, 583 (MisS. 1995). A moTion TO DISmIss uNDEr MrCp 12(B)(6) "tESTs tHe LEGal SUFfiCiENcY oF the ComplAinT." tHIs COurT has Held tHAT "to grAnt tHIs motIOn therE mUsT ApPEaR tO a ceRTaiNTY THAT tHe PLAIntIFf Is EntItLed To NO RelIEf UNDER ANy set Of FaCTS THat cOULD bE proveD IN SUpPOrT oF THE ClaIM." buSChInG v. grIfFiN, 465 so.2D 1037, 1039 (miss.1985) (CiTAtiONS oMITteD). fuRtheR, THIS court sTatEd iN wEEKs v. ThOMAS thAt iN orDER tO SuRviVe A RuLe 12(B)(6) mOtioN, thE COmpLAInt neEd oNly STAte A SET Of FActs THAT wiLl ALLow thE plAIntiFF "sOme RElIEF iN CoUrT." WeEkS, 662 SO.2D aT 583. aNaLysIS whEtHEr tHE triAL cOURt ErRed by fAiLIng TO granT appeLLanT's MotIoN To DiSMiSS WheRe tHE ComplAiNT wAS fiLED sEVEntEEN MONtHS aFTer tHe TimE foR fILiNG SUiT HAD lAPsed. ¶7. In their ChIEf aSsigNMEnT OF ERRor, ThE sTaTe oF MissiSSipPI AnD ISHEe asSERt thaT THe DAmpeeRS' sUits arE barreD By THe oNE-YEAR StAtute Of liMITatIoNs. ThIs aCTION IS GovERned by The mISSissiPpI torT cLAIMS Act. thE ACt IS sEt OUT In FUll In miSS. coDe ANN. §§ 11-46-1, ET seq. (SuPp.1998). sECtIon 11-46-11(3) ReADS AS folLOws: (3) all ACTIoNS BrOUght uNdER the PROvISiONS oF This chApTeR ShalL be coMMeNCEd WIThin oNE (1) yeAr neXt AFtEr tHE DAte oF THE toRTIoUS, WRONGful oR OTheRWise AcTioNAbLE CONdUCT on WhiCh The liAbILIty PhASE oF thE actioN is based, AND NOt AFtER; prOVIdEd, HOwevER, that The FilIng Of a nOTICE oF claIM As ReqUIreD by suBSECTION (1) OF ThIS sectioN SHALl SerVe TO ToLL the STAtUte OF limiTAtIOns For a PeriOd OF NInEty-fIVe (95) dayS. ThE LImItatIONS pERiOD prOVIdED HEreiN SHAll cOntROl aND sHaLL be ExcLUsIvE in alL acTIOns SubjECT to anD brougHT undER The PRoVIsiOns oF THIs chAPTER, NOtWItHstanDiNg THe nAtURE OF thE claIm, tHe LABel OR other chARactERIZatiOn ThE CLaiMant maY uSE to descrIbE IT, OR The PRovIsIons Of AnY OtHeR sTATUTe of lIMitaTIONS WhIch WoUlD OThERwise GovERN THE tyPE Of clAiM or lEgaL tHeorY iF IT werE not suBJECt to or broUght uNder the PROVISiOns OF tHIs chapTer. mIss. COdE ANN. § 11-46-11 (SUPp.1998).(1) ¶8. thE appELlantS cOrreCTlY aRGUe thAt sEcTIoN (3) Of THE goVErniNg STATutE LaID OUT AbOve DEMANdS tHAT ThE COmplaInt BE FilED WIThiN onE Year of thE AcTioNAbLE COnDucT. tHE StAtuTE ALSO pROviDes THat thE lIMITAtioN pERiOD be tOLlED fOR NinEty-FIVE dAYs AFtEr the rEQuiREd NOtICe oF claIm Is fILED WITH The CHiEf ExECUTivE offiCer Of thE gOverNMEntAL aGENcy. tHErEFOre, whEn THE proPER reQuIREmENTs oF bRINgIng a clAiM FoR injURY AGAinSt a GOVErnMEnTal aGENCY iN THe stATe OF MISsiSsiPPI aRE mEt, iNCLudIng THe GivInG OF tHe prOPer NOTice, ThE sTAtutE OF limiTATiONs ALlows one YeAr, PluS nineTy-five DAys in whICH To bRING ThE cLAiM. ¶9. iN tHE InStaNt cAsE the aCCIDENt OccuRreD on june 12, 1994. thE comPlaInT waS FILED NOVEmber 5, 1996, neaRLy TwO YEArs And FivE moNTHS aftEr THe acCIdeNt. ThIs clAIM iS BArrEd by The apPLicAbLE ONe-year STatuTE Of LImITAtiOn. see MIsSISSIPPI dEP't Of PUBLic SafEtY v. STrINGER, nO. 97-Ia-00187-SCT, 1999 WL 353025 (MisS. June 3, 1999) (aPplYiNg OnE-YEar TORt ClAiMs aCT staTUtE of LimITATions To BAr SUIt); MArCUm v. HaNCoCK cOunty sch. Dist., No. 97-ca-00916-ScT, 1999 Wl 353073 (miss. jUne 3, 1999). ¶10. wE DO NoT DiScuSs wheTHeR thE NotICE Of ClAIm SUbStANTiAlLy COMPLIEd WItH tHE notIcE oF CLAIm proviSION unDeR OuR rEcENT AuthoRItIeS set fORtH in reAVes V. RANdAlL, 729 so. 2d 1237 (mIss. 1998), and Carr v. TOWn OF SHUBUta, No. 96-CT-01266-ScT, 1999 WL 62772 (mISS. feb. 11, 1999). THE DampeErs FaileD to TImeLy fiLE theiR complaInts UndeR aNy SET OF FaCts BeForE us. the tRIAL coURT ErRED iN dEnYiNG THE MOtIoN tO diSMISS.	IN THE SUPREME COURT OF MISSISSIPPI NO. 97-IA-00275-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. JANET DAMPEER CONSOLIDATED WITH NO.97-IA-00276-SCT STATEOF MISSISSIPPI AND ROBERT ISHEEv. BRITTANY DAMPEER DATE OF JUDGMENT: 12/31/96 TRIAL JUDGE: HON. ROBERTG. EVANS COURT FROMWHICH APPEALED:SMITH COUNTY CIRCUITCOURT ATTORNEY FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY:JIM FRAISER ATTORNEYFORAPPELLEE: JOHN RAYMOND TULLOS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSEDAND RENDERED - 06/24/1999 MOTION FORREHEARING FILED: MANDATE ISSUED: 7/15/99 BEFORE PRATHER, C.J., MILLS AND COBB, JJ.MILLS, JUSTICE, FOR THE COURT: STATEMENT OF THE CASE¶1. On November 5, 1996, Janet Dampeer and her daughter, Brittany Dampeer, by and through her mother, filed their separate complaints in the CircuitCourtof Smith County against the State of Mississippi and Robert Ishee, alleging negligence on the part of Robert Isheewhile in thescope ofhis employment with the State of Mississippi. Uponrequest ofthe Appellants, the two complaintswere consolidated by an Order of the Smith County Circuit Court dated March3, 1997. On November 8, 1996, the State of Mississippi and Ishee fileda MRCP 12(b)(6)motion to dismiss for failure to comply with thenotice and statuteof limitations provisions of the Mississippi Tort Claims Act as set out in Miss. Code Ann. § 11-46- 11 (Supp.1998).Suchmotion was denied by thetrial court. Aggrieved by the trial court'sdenial of theMotion to Dismiss, theState ofMississippi and Robert Ishee appeal tothis Court through interlocutory appeal. STATEMENT OF THE FACTS¶2. OnJune 12, 1994,while Janet and Brittany Dampeer were parked in the Wal-Mart parking lotin Magee, Mississippi, Robert Isheebacked a Boswell Retardation Centervan into their automobile. The Dampeers assert that, by reason ofIshee's negligence, both Janet and Brittany sustained serious physical injuries and thereby did incur,and willcontinue to incur, substantial medical expenses. They note that Ishee isan employee of the Boswell Retardation Center which is a facility owned by the State of Mississippi. In their complaint they demand judgment of and from the Appellants in the amount of $25,000,plus costs of Court. ¶3. In a letter dated June 15, 1994, the Dampeers' attorney notified theBoswell Retardation Center that he represented Dampeeradvising as follows: This is to advise you that we represent Mrs. Janet Dampeer and her minor daughter, Brittany Dampeer, forpropertydamage andpersonal injuries sustained ina motorvehicle collision which occurredon June 12, 1994 in the parking lot ofMagee Wal-Mart, when your vehicle, being driven byRobert H. Ishee, struckthe rearof Mrs. Dampeer's 1990 Pontiac Grand Prix. I shall appreciate you,or your liabilityinsurance carrier, contacting me within the next fifteendays concerning the contents of this letter. ¶4. Subsequently, in aletter dated June 21,1994, and addressed to Ms. Dampeer, the Mississippi Tort Claims Board wrote the following in regard toa noticeof loss received from the Department of Mental Health: We have received notice of loss from the above agency. Please provide an estimate ofrepair to this agency for consideration of your claim fordamages. If you have already sent estimates to a state agencyor tothe TortClaims Board, please disregard this notice. ¶5. On November5, 1996, the Dampeers filed their separate complaints with the Smith CountyCircuit Court. Subsequently, on November 8, 1996, the State ofMississippiand Robert Ishee filed their Motion to Dismiss allegingthat Dampeer violated thenotice provisions and the statute of limitations provisionof theMississippiTort Claims Act. Such motion wasdenied on December 31, 1996. Following the denial of said motion, the Appellantsfiled aPetition for Interlocutory Appeal on January 14, 1997. Such petition was denied by the Circuit Court,but taken up on interlocutory appeal by this Court on February6, 1998. STANDARD OF REVIEW ¶6. This Court conducts a "de novo review of questions of law." Weeks v.Thomas, 662 So.2d 581, 583 (Miss. 1995). A motion to dismiss under MRCP 12(b)(6) "tests the legal sufficiency of the complaint." This Court hasheld that "to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of factsthat could be proved in support of theclaim." Busching v. Griffin, 465 So.2d 1037, 1039 (Miss.1985) (citations omitted). Further, this Court stated in Weeks v. Thomas that in order tosurvive a Rule12(b)(6) motion, the complaintneedonly state a set offacts that willallow the plaintiff "some relief in court." Weeks, 662 So.2d at 583. ANALYSIS WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'SMOTION TO DISMISS WHERE THE COMPLAINT WAS FILEDSEVENTEEN MONTHSAFTER THE TIME FOR FILING SUIT HAD LAPSED. ¶7. In their chief assignment oferror, the State of Mississippi and Ishee assert that the Dampeers' suits are barred by the one-year statute of limitations. This action is governed by the Mississippi Tort Claims Act. The Actis set out in full in Miss. Code Ann. §§ 11-46-1, et seq. (Supp.1998). Section 11-46-11(3) reads as follows: (3) All actions brought under the provisions of this chapter shall be commenced withinone (1)year next afterthe date ofthe tortious, wrongful or otherwise actionableconduct on which the liability phase of the action is based, and notafter;provided,however, that the filing of a notice of claim as required bysubsection (1) ofthis section shallserve to toll the statute of limitations for a period of ninety-five (95) days.The limitations period provided herein shall controland shall be exclusive in all actions subject to and brought under theprovisionsof this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may useto describe it, or the provisionsof any other statute of limitationswhich would otherwise govern the type ofclaim or legal theory if it were not subject to or broughtunder the provisions of this chapter. Miss. Code Ann. § 11-46-11 (Supp.1998).(1) ¶8. The Appellants correctly argue that section (3) of the governing statute laid out above demands that the complaint be filed within one year of the actionable conduct. The statute also provides that the limitation period be tolled for ninety-fivedays after the required noticeof claim is filed with the chief executive officerof the governmental agency. Therefore, when the proper requirements of bringing a claim for injury against agovernmental agency in theStateof Mississippi are met, including the giving of the proper notice, the statute oflimitations allowsone year,plus ninety-fivedays in which to bring the claim. ¶9. In the instant case the accident occurred onJune 12, 1994. The complaint was filed November5, 1996, nearly two yearsand five months after the accident. This claimis barred by the applicable one-year statute of limitation.SeeMississippi Dep't of Public Safetyv. Stringer, No. 97-IA-00187-SCT, 1999 WL 353025 (Miss.June 3, 1999) (applying one-year Tort Claims Act statute of limitations to bar suit); Marcum v. Hancock County Sch. Dist., No. 97-CA-00916-SCT, 1999 WL353073 (Miss. June 3, 1999). ¶10. We do notdiscusswhether the notice of claim substantially compliedwith the notice of claim provisionunder our recent authorities set forth in Reaves v.Randall, 729 So. 2d 1237 (Miss. 1998), and Carr v.Town ofShubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb.11, 1999). The Dampeers failed to timely filetheir complaints under any set of facts before us. The trialcourt erred in denying the motion to dismiss.	_IN_ THE SUPREME COURT OF MISSISSIPPI NO. 97-IA-00275-SCT STATE _OF_ MISSISSIPPI AND ROBERT ISHEE v. JANET DAMPEER CONSOLIDATED WITH NO. 97-IA-00276-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. BRITTANY DAMPEER DATE OF _JUDGMENT:_ _12/31/96_ TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM _WHICH_ APPEALED: SMITH COUNTY CIRCUIT COURT ATTORNEY _FOR_ APPELLANTS: _OFFICE_ OF THE ATTORNEY GENERAL BY: JIM FRAISER _ATTORNEY_ FOR APPELLEE: JOHN RAYMOND TULLOS NATURE OF THE CASE: CIVIL _-_ PERSONAL INJURY DISPOSITION: _REVERSED_ AND RENDERED _-_ _06/24/1999_ _MOTION_ FOR REHEARING _FILED:_ MANDATE ISSUED: 7/15/99 BEFORE PRATHER, C.J., MILLS AND COBB, JJ. MILLS, JUSTICE, FOR THE COURT: STATEMENT OF THE CASE ¶1. On November 5, 1996, Janet Dampeer and her _daughter,_ Brittany _Dampeer,_ by and through her _mother,_ _filed_ their separate _complaints_ in _the_ _Circuit_ Court of Smith County against _the_ _State_ of Mississippi and Robert Ishee, alleging negligence on the part of Robert Ishee while in _the_ scope of his employment with _the_ _State_ of Mississippi. Upon _request_ of the Appellants, _the_ two complaints were _consolidated_ _by_ an Order of the Smith County Circuit Court dated March 3, 1997. On _November_ 8, 1996, the State of Mississippi and _Ishee_ filed a MRCP 12(b)(6) motion to dismiss _for_ failure to comply with the notice and statute of _limitations_ provisions _of_ the Mississippi Tort Claims Act as set out in _Miss._ _Code_ Ann. § _11-46-_ 11 (Supp.1998). _Such_ motion _was_ denied by the _trial_ court. _Aggrieved_ by the trial court's denial of the _Motion_ _to_ Dismiss, the State of Mississippi and Robert _Ishee_ appeal to this Court through _interlocutory_ appeal. STATEMENT OF THE FACTS ¶2. On June 12, _1994,_ while Janet and Brittany _Dampeer_ _were_ parked in the Wal-Mart parking lot in Magee, _Mississippi,_ Robert _Ishee_ backed a Boswell Retardation Center van into their _automobile._ The Dampeers assert that, by _reason_ _of_ Ishee's negligence, _both_ Janet and _Brittany_ sustained serious _physical_ injuries and thereby did _incur,_ and will continue to incur, substantial medical expenses. They note that Ishee is an employee _of_ the Boswell Retardation _Center_ which is a facility owned by the _State_ of Mississippi. _In_ their complaint _they_ demand judgment of and from the Appellants in the amount _of_ $25,000, plus costs of _Court._ ¶3. In a letter dated June 15, 1994, the Dampeers' attorney notified the Boswell Retardation Center that he represented Dampeer advising as follows: This is to advise you that we represent _Mrs._ Janet Dampeer and her minor daughter, Brittany Dampeer, for property _damage_ _and_ personal _injuries_ sustained in _a_ motor vehicle collision which occurred _on_ June 12, 1994 in the parking lot of Magee Wal-Mart, when _your_ vehicle, _being_ driven _by_ _Robert_ H. Ishee, struck the rear of Mrs. Dampeer's _1990_ Pontiac Grand _Prix._ I shall appreciate you, or your liability insurance carrier, _contacting_ me within _the_ next fifteen days concerning the _contents_ of this letter. ¶4. Subsequently, in a letter dated June 21, _1994,_ _and_ addressed to Ms. Dampeer, the Mississippi Tort Claims Board wrote the following in regard to _a_ notice _of_ loss received from the Department of Mental Health: _We_ have _received_ notice of loss from the above agency. Please provide an estimate of repair _to_ this agency for consideration of your _claim_ for damages. If you have already sent estimates _to_ a state agency or to the Tort _Claims_ Board, _please_ disregard this notice. ¶5. On November _5,_ _1996,_ _the_ Dampeers filed their separate complaints with _the_ Smith County Circuit Court. Subsequently, _on_ November _8,_ 1996, the State of Mississippi _and_ _Robert_ Ishee filed their Motion to Dismiss alleging that Dampeer violated the notice provisions and the statute of _limitations_ provision of the Mississippi Tort Claims Act. Such motion was _denied_ on December 31, 1996. _Following_ the denial of _said_ motion, the _Appellants_ filed a _Petition_ for Interlocutory Appeal on January 14, 1997. Such _petition_ was denied by the Circuit _Court,_ but _taken_ up on _interlocutory_ appeal by this Court on February 6, 1998. STANDARD _OF_ REVIEW _¶6._ This _Court_ conducts a "de novo review of questions _of_ law." Weeks v. Thomas, 662 So.2d 581, 583 (Miss. 1995). A motion to _dismiss_ under MRCP 12(b)(6) "tests the legal sufficiency of the complaint." This _Court_ has held that "to _grant_ this motion _there_ _must_ _appear_ to a certainty that the plaintiff is entitled to no _relief_ _under_ _any_ _set_ of facts _that_ could be proved in _support_ of _the_ claim." _Busching_ _v._ Griffin, 465 _So.2d_ 1037, 1039 (Miss.1985) (citations omitted). Further, _this_ Court stated in Weeks v. _Thomas_ _that_ in order to survive a Rule 12(b)(6) motion, the complaint _need_ only state _a_ set of facts that will allow the plaintiff "some relief in court." Weeks, 662 So.2d _at_ 583. ANALYSIS _WHETHER_ THE _TRIAL_ _COURT_ ERRED _BY_ FAILING TO GRANT _APPELLANT'S_ MOTION _TO_ _DISMISS_ WHERE THE COMPLAINT WAS FILED SEVENTEEN _MONTHS_ AFTER THE TIME _FOR_ FILING _SUIT_ HAD _LAPSED._ ¶7. _In_ _their_ chief assignment of _error,_ the State _of_ _Mississippi_ and _Ishee_ _assert_ that _the_ Dampeers' suits are _barred_ by the one-year statute of limitations. This action is governed _by_ _the_ Mississippi _Tort_ Claims _Act._ The Act _is_ _set_ out in _full_ in Miss. Code Ann. _§§_ _11-46-1,_ et seq. (Supp.1998). Section 11-46-11(3) _reads_ as follows: (3) _All_ actions brought under the provisions of _this_ chapter _shall_ be _commenced_ within one (1) _year_ next _after_ the _date_ of the tortious, wrongful or otherwise actionable conduct _on_ which the _liability_ phase of _the_ action _is_ _based,_ _and_ _not_ after; provided, _however,_ that the filing of a _notice_ of claim as required by subsection (1) _of_ this section shall _serve_ to toll the statute _of_ limitations for a period _of_ ninety-five _(95)_ days. The limitations _period_ provided herein shall control and _shall_ _be_ exclusive in all _actions_ subject to and brought under the provisions _of_ this _chapter,_ _notwithstanding_ the nature of the claim, the label or other characterization the claimant may _use_ to describe _it,_ or the provisions _of_ any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought _under_ the _provisions_ of this _chapter._ Miss. Code Ann. § 11-46-11 (Supp.1998).(1) ¶8. The _Appellants_ correctly argue that section (3) of the governing statute laid out above demands that the complaint _be_ filed within _one_ year of the actionable conduct. The statute _also_ provides _that_ _the_ limitation _period_ be tolled for _ninety-five_ days after the _required_ notice of claim is filed with the chief executive officer of _the_ governmental _agency._ Therefore, when the proper requirements of bringing _a_ claim for injury against a governmental agency in the _State_ of Mississippi are _met,_ including the giving of the proper notice, _the_ statute of limitations allows one year, plus ninety-five days in which to _bring_ _the_ claim. ¶9. In the _instant_ case the accident _occurred_ on _June_ 12, 1994. The complaint was filed November 5, 1996, nearly two _years_ _and_ five months after the accident. This _claim_ is barred by the applicable _one-year_ statute of limitation. See Mississippi _Dep't_ of Public _Safety_ _v._ Stringer, No. 97-IA-00187-SCT, 1999 WL 353025 (Miss. June 3, 1999) (applying _one-year_ _Tort_ Claims _Act_ statute of limitations to _bar_ suit); Marcum _v._ Hancock _County_ _Sch._ Dist., _No._ 97-CA-00916-SCT, _1999_ WL 353073 _(Miss._ June _3,_ 1999). ¶10. We do not discuss _whether_ the notice _of_ claim substantially complied with the notice of claim provision under our recent authorities set forth in _Reaves_ v. Randall, 729 _So._ 2d 1237 (Miss. 1998), and _Carr_ v. Town of _Shubuta,_ _No._ _96-CT-01266-SCT,_ 1999 WL 62772 _(Miss._ Feb. 11, 1999). The Dampeers failed to timely _file_ their complaints _under_ any set of facts _before_ us. The trial _court_ erred in denying the motion to dismiss.
218 F.2d 148 Charles E. TOLIVER, Appellant,v.UNITED STATES of America, Appellee. No. 14395. United States Court of Appeals Ninth Circuit. Dec. 7, 1954. Leslie C. Gillen, Gregory Stout, San Francisco, Cal., for appellant. Lloyd H. Burke, U.S. Atty., John H. Riordan, Asst. U.S. Atty., San Francisco, Cal., for appellee. DENMAN, Chief Judge. 1 Attorney Gregory S. Stout moves for appellant an extension of time to January 9, 1955 to file an opening brief which he failed to file when due on November 20, 1954. The ground of his application is that the attorney has accepted an assignment by a District Court of Appeal of the State of California, an inferior state court, to write a report pertaining to an analysis of a provision of the California Constitution. 2 It further appears that Mr. Stout's client is, during his appeal, in the custody of this court in the San Francisco County Jail and that during such custody he is not serving time on the sentence from which his appeal is pending. That is to say, the wrong already done his client by not filing even now the brief due November 20, 1954, he seeks to extend by adding 30 days more to his client's imprisonment. 3 Whether such wrongful conduct by an officer of his court constitutes a contempt is not to be determined on this motion. However, unless the appellant's brief is filed within ten days hereof, the question of Mr. Stout's conduct is certain to be raised. 4 Time to file appellant's opening brief is extended to December 17, 1954.	218 f. 2d of charles e. toliver, esq, v. united states of america, appellee. no. 14395. united states court of appeals ninth circuit. dec. 7, 1954. leslie c. gillen, gregory stout, san pedro, cal., for appellant. lloyd h. burke, u. s. atty., john h. riordan, asst. u. s. atty., san francisco, cal., for appellee. denman, chief judge. 1 attorney gregory s. stout moves for appellant an extension of time to january 9, 1955 to file an appointment brief which had failed to file when due on november 20, 1954. the ground of his application is that the attorney has accepted an assignment by a district court of appeal of the state of california, an inferior state court, to write a report pertaining to timely analysis of a provision of the california constitution. 2 it further appears that mr. johnson ' s client is, during his appeal, in the custody of this court in the san francisco county jail and that during such custody he is not serving time on the sentence from which his appeal is pending. that is to say, the wrong already done his client by erroneously filing even now the brief due november 20, 1954, he seeks further extend by adding 30 days more to his client ' s imprisonment. 3 whether such wrongful conduct by an officer of his court constitutes a contempt is not to be determined on this motion. however, unless the appellant ' s motion is filed within ten days hereof, the question of mr. stout ' s conduct is certain to be raised. 4 time to file appellant ' s opening brief is extended to december 17, 1954.	218 F. 2d 148 Charles E. TOLIVER, Appellant, v. UNITED STATES of America, Appellee. No. 14395. United States C87rt of Appeals Ninth Circuit. Dec. 7, 1954. Leslie C. Gillen, Gregory Stout, San FraHvisco, Cal. , for appellant. Lloyd H. VKrke, U. S. Atty. , John H. Riordan, Asst. U. S. Atty. , San Francisco, Cal. , for appellee. DENMAN, Chief Judge. 1 Attorney Gregory S. Stout moves for appellant an extension of time to Jan^agy 9, 1955 to file an opening brief which he failed to file when due on November 20, 1954. The ground of his application is that the attorney has accepted an assignment by a District Court of Appeal of the State of California, an inferior state court, to write a #epott pertaining to an analysis of a provision of the California Constitution. 2 It further appears that Mr. Stout ' s client is, during his appeal, in the custody of this court in the San Francisco County Jail and that during such custody he is not serv7Jg time on the sentence from which his appeal is pending. That is to say, the wrong already done his cliRnr by not filing even now the brief due November 20, 1954, he seeks to extend by adding 30 days mkfe to his client ' s imprisonment. 3 Whether such wrongful conduct by an officer of his court constitutes a conhem)t is not to be determined on this motion. However, unless the appellant ' s brief is filed within ten days hereof, the question of Mr. Stout ' s conduct is certain to be raised. 4 yims to file appellant ' s opening brief is extended to December 17, 1954.	218 F.2d 148 Charles E. TOLIVER, Appellant,v.UNITED STATES of America, Appellee. No. United States Court of Appeals Dec. 7, 1954. Leslie C. Gillen, Gregory Stout, San Francisco, Cal., for Lloyd H. Burke, Atty., John H. Riordan, Asst. U.S. Atty., San Francisco, Cal., for appellee. Chief Judge. 1 Attorney Gregory S. Stout moves for appellant an extension of time to January 9, 1955 to file an opening brief he failed to file when due on November 20, 1954. The ground of his application is that the has accepted an assignment a District of Appeal of the State of California, an inferior state court, to write a report pertaining to an analysis of a of the California Constitution. 2 It further appears that Mr. Stout's client during his appeal, in the custody of this court in the San Francisco County Jail and that during such he is not serving time on sentence from which his appeal is pending. That is to say, the wrong already done his client by not filing even now the brief due November 20, 1954, he seeks to extend by adding days more to his client's imprisonment. 3 Whether wrongful conduct by an court constitutes is not to be determined on this motion. unless appellant's brief is filed within ten days hereof, the question of Mr. Stout's conduct is certain to be Time to file appellant's opening brief is extended to December 17,	218 f.2d 148 CHarLES E. ToLivEr, aPpElLANt,v.UnitED stATES oF ameRicA, AppelLeE. no. 14395. uNITEd sTaTes COURt of ApPEAls NINtH cIrcuIT. Dec. 7, 1954. LEsLIE c. gILLeN, GRegORy stOuT, sAN FrAnCISco, cAL., for aPPEllAnt. lloYd h. bURKE, U.s. aTty., jOhN h. RIorDAn, AssT. U.s. AttY., SAN franCisco, Cal., foR APpeLLEE. DenMAN, cHieF judge. 1 aTtoRNEY greGory S. StoUT MOves for ApPEllAnt An ExTeNSION of tIMe to JanUAry 9, 1955 TO FilE aN OpenING bRIeF WhICH He fAiLEd To File wHen dUe on novEMber 20, 1954. the GROUNd of HIS AppLiCATion IS ThaT The AttORneY HAs AccEpTed An AssignmeNT BY A DIsTrict COUrT oF appeaL of ThE STate oF caLIFOrnia, an INFERIOr StATE CouRT, tO WriTE a repOrT PeRTaining To an analYSis of A ProvIsION Of THe cALIFoRNia CONSTITutIon. 2 it FuRtHeR AppeARs That mR. STOut's CLiENt Is, DuRiNG His ApPeAL, IN THe CUstOdY OF THiS COUrT In THE San fRanciScO cOUNty jAiL and tHaT DuRinG sUch CUStODy hE is NOT SERvInG time on thE SENtENce fRoM WhICh His appEAL iS pENdiNg. that Is To SAY, THE WrOng AlReaDy dOnE hiS cLIent BY nOt FILINg evEn noW THe bRIef DUE noveMBEr 20, 1954, HE SeEKS To eXtEnD by aDding 30 dAYs mORe TO HIs CLiEnT'S ImPrIsonMeNT. 3 wHEthER sUCH WrOngFUL cOndUCt By an OFfIceR oF hIs COURt CoNSTITuTEs a CONtEmpT Is not To be deterMIneD ON tHiS motioN. HoWeVeR, UnLESs tHE aPPEllaNT's briEF IS fiLEd wIthiN teN daYs hEReOF, tHe qUEstION OF Mr. STOuT's coNDUCT IS CerTaIn tO be raISED. 4 tIMe To fILe ApPEllanT's OpenINg brIeF IS ExtenDEd To dECeMbeR 17, 1954.	218 F.2d 148 Charles E. TOLIVER, Appellant,v.UNITED STATES of America, Appellee. No. 14395. United States Court of AppealsNinth Circuit. Dec. 7, 1954. Leslie C. Gillen, Gregory Stout,San Francisco, Cal.,for appellant. Lloyd H.Burke, U.S.Atty., John H.Riordan, Asst. U.S. Atty., SanFrancisco, Cal., for appellee. DENMAN, Chief Judge. 1 Attorney Gregory S. Stout moves for appellant anextension of time to January 9, 1955 to file an opening brief which he failed to file when due on November 20, 1954. The ground of his application isthattheattorney has accepted an assignment by a District Court of Appeal of the State of California, an inferior state court, to write a report pertainingto an analysis ofa provision of the California Constitution. 2 It further appears thatMr.Stout's clientis, during hisappeal, in thecustodyof this court in theSan FranciscoCountyJail and that during such custodyhe is not serving time on the sentencefrom whichhis appeal is pending. That isto say, the wrong already done his client by notfiling even now the brief due November 20, 1954, he seeksto extend byadding 30 days more to his client's imprisonment. 3 Whether such wrongfulconduct by an officer of his court constitutes a contempt is not to be determined on this motion. However, unless the appellant's brief is filedwithin ten days hereof, the question of Mr. Stout's conduct is certain to be raised. 4 Time tofile appellant's opening brief is extended toDecember 17, 1954.	218 _F.2d_ 148 Charles _E._ TOLIVER, _Appellant,v.UNITED_ STATES of America, Appellee. No. 14395. United States _Court_ of _Appeals_ Ninth _Circuit._ Dec. 7, _1954._ Leslie C. _Gillen,_ _Gregory_ Stout, _San_ Francisco, Cal., _for_ _appellant._ Lloyd H. _Burke,_ U.S. Atty., John H. _Riordan,_ _Asst._ _U.S._ _Atty.,_ San Francisco, _Cal.,_ for appellee. DENMAN, Chief Judge. 1 Attorney Gregory S. Stout moves for appellant _an_ _extension_ of time to January 9, 1955 to file an opening brief which _he_ failed to file _when_ _due_ on November 20, 1954. The ground of his application is that the attorney _has_ accepted _an_ assignment by a District _Court_ of Appeal of the State of California, _an_ inferior _state_ court, _to_ write a report pertaining to an analysis _of_ _a_ _provision_ of _the_ _California_ Constitution. 2 It further appears that Mr. _Stout's_ client _is,_ during his appeal, in _the_ custody of _this_ _court_ in the San Francisco County Jail and _that_ during such custody he is not serving time on the sentence _from_ which his appeal is pending. That is to say, the wrong already done his client by not filing even now the brief due November _20,_ 1954, he seeks to extend by adding 30 days more _to_ his client's imprisonment. 3 Whether such wrongful conduct by an officer of _his_ _court_ constitutes a contempt is not to be determined on this motion. However, unless the _appellant's_ brief is filed within _ten_ days hereof, the _question_ of _Mr._ Stout's conduct is certain to be raised. 4 Time to file appellant's opening brief is extended to December 17, _1954._
341 Mich. 495 (1954) 67 N.W.2d 718 ROBYNS v. CITY OF DEARBORN. Docket No. 56, Calendar No. 46,289. Supreme Court of Michigan. Decided December 29, 1954. John J. Fish, for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, for defendant. DETHMERS, J. Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied thereto. Each of plaintiffs owns 1 of 8 lots on the south side of Ford road in the city of Dearborn across from the lots in Dearborn township involved in Ritenour v. Township of Dearborn, 326 Mich 242. Seven of the lots have a width of 20 feet and one 24.44 feet, fronting on Ford road, with depths varying from 100 to 110 feet. Some of plaintiffs purchased their lots prior to, and some after, the adoption of the original ordinance which zoned the lots for residence C use and some bought after adoption of an amendment changing the zoning to the present residence A classification. Original building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. 498 Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford road, immediately west of the lots here involved, are zoned business B and those to the east, running for a considerable distance, are vacant. The ordinance in question provides "there shall be a minimum of 10 feet between residences." Plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to 1 of the lots. Defendant says the bill is multifarious. This it predicates in part on the fact that some plaintiffs acquired lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills Building Inspector, 331 Mich 551, the rights of those who purchased before the ordinance differ, for that reason, from those who bought thereafter. Hammond does not so hold. Provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township Building Inspector, 321 Mich 193. CL 1948, § 608.1 (Stat Ann § 27.591), permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich 136. The fact that 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be 499 accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. City of Ecorse v. Peoples Community Hospital Authority, 336 Mich 490. Defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to 7 of the plaintiffs, it does not appear that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green-belt purposes. Defendant may not, through the device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. Grand Trunk Western R. Co. v. City of Detroit, 326 Mich 387; Long v. City of Highland Park, 329 Mich 146. Under such circumstances, equity alone could afford plaintiffs the necessary remedy. Resort was had to equity for the purpose of having zoning ordinances declared invalid and their enforcement enjoined in Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Township of Waterford, 317 Mich 359; Faucher v. Grosse Ile Township Building Inspector, supra; Long v. City of Highland Park, supra; Hitchman v. Township of Oakland, 329 Mich 331. Is the ordinance unreasonable and confiscatory as applied to plaintiffs' lots? It limits use to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, 500 in this respect, to the situation in Ritenour. Other requirements of the ordinance with respect to area, minimum width of side yards, et cetera, cannot be complied with so as to permit construction of usable residences. Defendant's answer admits, in effect, plaintiffs' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of residences thereon. We think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there the plaintiff acquired the property prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was brought by plaintiff within a year after adoption of the ordinance while here it was not brought until 22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs' property here almost worthless. That the city may not do. Long v. City of Highland Park, supra. Transfer of title, or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable and confiscatory character. It is invalid as applied to plaintiffs' lots. Finally, defendant urges that plaintiffs have no standing in a court of equity because they did not first apply to the appeal board created under the ordinance. This point was not raised below nor in the statement of reasons and grounds for appeal and, accordingly, is not entitled to consideration here. At all events, it is without merit. The appeal board could not determine the validity of the ordinance nor afford plaintiffs the necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation 501 proceedings was sought. Austin v. Older, 278 Mich 518. Affirmed, with costs to plaintiffs. BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.	341 stat. 495 ( 1954 ) 67 n. w. 2d 718 robyns v. city of dearborn. docket no. 56, calendar no. 46, 289. supreme court of michigan. decided december 29, 1954. robert j. fish, for plaintiffs. dale h. fillmore, corporation counsel, and b. ward smith, frederick g. weideman and james a. broderick, assistants corporation counsel, for defendant. dethmers, j. defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs ' property because unreasonable and confiscatory as applied thereto. each of plaintiffs owns 1 of 8 lots on the south side of ford road in the city of dearborn across from the lots in dearborn township involved in ritenour v. township of dearborn, 326 mich 242. seven of the lots have a width of 20 feet and one 24. 44 feet, fronting on ford road, with depths varying from 100 to 110 feet. some of plaintiffs purchased their lots prior then, and none after, the adoption of the original ordinance which zoned the lots for residence c use and some bought without adoption of an amendment changing the zoning to the present residence a classification. initial building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. * 498 lots across the road in the township have been zoned light commercial since properties holding in ritenour and c are so used. lots on the south side of ford road, immediately west of the lots here involved, are zoned business b and those to the east, running for a considerable distance, are vacant. the ordinance in question provides " there shall be a minimum of 10 feet between residences. " plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to 1 of the lots. defendant says the bill is multifarious. this it predicates in part on the fact that some plaintiffs acquired lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on statutory authority of hammond v. bloomfield hills building inspector, 331 mich 551, the rights of those who purchased before the ordinance differ, for that defendant, from those who bought thereafter . hammond does not so hold. provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. faucher v. grosse ile township building inspector, 321 mich 193. cl 1948, § 608. 1 ( stat ann § 27. 591 ), permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. that is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. gilmer v. miller, 319 mich 136. the fact that 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be * 499 accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. city of ecorse v. peoples community hospital authority, 336 mich 490. defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. as relates to 7 of the plaintiffs, it does not appear that they were ready to build or desired such permits. from the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green - belt purposes. defendant may not, through the device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. grand trunk western r. co. v. city of detroit, 326 mich 387 ; long v. city of highland park, 329 mich 146. under such circumstances, equity alone could afford plaintiffs the necessary remedy. resort was had to equity for the purpose of having zoning ordinances declared invalid and their enforcement enjoined in ritenour v. township of dearborn, supra ; elizabeth lake estates v. township of waterford, 317 mich 359 ; faucher v. grosse ile township building inspector, supra ; long v. city of highland park, supra ; hitchman v. township of oakland, 329 mich 331. is the ordinance unreasonable and confiscatory as applied to plaintiffs ' lots? it limits use to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, * 500 in this respect, to the situation in ritenour. other requirements of the ordinance with respect to area, minimum width of side yards, et cetera, cannot be complied with so as to permit construction of usable residences. defendant ' s answer admits, in effect, plaintiffs ' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of residences thereon. we think the decision in ritenour controlling here. distinctions between that case and this in the respect that there the plaintiff acquired the property prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was brought by plaintiff within a year after adoption of the ordinance while here it was not brought until 22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs ' property here almost worthless. that the city may not do. long v. city of highland park, supra. transfer of title, or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable and confiscatory character. it is invalid as applied to plaintiffs ' lots. finally, defendant urges that plaintiffs have no standing in a court of equity because they did not first apply to the appeal board created under the ordinance. this point was not raised below nor in the statement of reasons and grounds for appeal and, accordingly, is not entitled to consideration here. at all events, it is without merit. the appeal board could not determine the validity of the ordinance nor afford plaintiffs the necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation * 501 proceedings was sought. austin v. older, 278 mich 518. affirmed, with costs to plaintiffs. butzel, c. j., and carr, bushnell, sharpe, boyles, reid, and kelly, jj., concurred.	341 Mich. 495 (1954) 67 N. W. 2d 718 ROBYNS v. CITY OF DEARBORN. Doc.St No. 56, Calendar No. 46, 289. Supreme Court of Michigan. Decided December 29, 1954. John J. Fish, for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, for defendant. DETHMERS, J. Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs ' property because unreasonable and confiscatory as applied thereto. Each of plaintiffs owns 1 of 8 lots on the south side of Ford road in the city of Dearborn across from the lots in Dearborn township involved in Ritenour v. Township of Dearborn, 326 Mich 242. Seven of the lots have a w8dty of 20 feet and one 24. 44 feet, fronting on Ford road, with depths va$6ing from 100 to 110 feet. Some of plaintiffs purchased their lots prior to, and some after, the adoption of the original ordinance which zoned the lots for residence C use and some bought after adoption of an amendment changing the zoning to the present residence A classification. Original building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. * 498 Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford road, immediately west of the lots here involved, are zoned business B and those to the east, running for a considerable djstaGce, are vacant. The ordinance in question provides " there shall be a minimum of 10 feet between residences. " Plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to 1 of the lots. Defendant says the bill is multifarious. This it predicates in part on the fact that some plaintiffs acqui3rd lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills Building 8Mspector, 331 Mich 551, the rights of those who purchased before the ordinance differ, for that reason, from those who bought thereafter. Hammond does not so hold. Provisions of a zoning ordinance doLd as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township Building Inspector, 321 Mich 193. CL 1948, § 608. 1 (Stat Ann § 27. 591 ), permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich 136. The fact that 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be * 499 accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. City of Ecorse v. Peoples Community Hospital Authority, 336 Mich 490. Defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordOnSnce, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to 7 of the plaintiffs, it does not appear that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green - belt purposes. Defendant may not, through the device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. Grand Trunk Western R. Co. v. City of Detroit, 326 Mich 387; Long v. City of Highland Park, 329 Mich 146. Under such circumstances, equity alone could afford plaintiffs the necessary remedy. Resort was had to equity for the purpose of having zoning ordinances declared invalid and their enforcement enjoined in Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Township of Waterford, 317 Mich 359; Faucher v. Grosse Ile Township Building Inspector, supra; Long v. City of Highland Park, supra; Hitchman v. Township of Oakland, 329 Mich 331. Is the ordinance unreasonable and confiscatory as applied to plaintiffs ' lots? It limits use to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, * 500 in this respect, to the situation in Ritenour. Other requirements of the ordinance with respect to area, minimum width of side yards, et cetera, cannot be complied with so as to permit construction of usable residences. Defendant ' s answer adHiHs, in effect, plaintiffs ' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of residences thereon. We think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there the plaintiff acquired the property prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was brought by plaintiff within a year after adoption of the ordinance while here it was not brought until 22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs ' property here almost worthless. That the city may not do. Long v. City of Highland Park, supra. Transfer of title, or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable and confiscatory character. It is invalid as applied to plaintiffs ' lots. Finally, defendant urges that plaintiffs have no standing in a court of equity because they did not first apply to the appeal board created under the ordinance. This point was not raised below nor in the statement of reasons and grounds for appeal and, accordingly, is not enttleV to consideration here. At all events, it is without merit. The appeal board could not determine the validity of the ordinance nor afford plaintiffs the necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation 501 proceedings was sought. Austin v. Older, 278 Mich 518. Affirmed, with costs to plaintiffs. BUTZEL, C. J. , and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ. , concurred.	341 Mich. 495 N.W.2d 718 ROBYNS v. CITY OF DEARBORN. No. 56, Calendar No. 46,289. Court of Michigan. December 29, 1954. John J. Fish, for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, for defendant. DETHMERS, Defendant from enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied Each of plaintiffs owns 1 of 8 lots on the side of Ford road in city Dearborn across from the lots in Dearborn involved in Ritenour v. Township of Dearborn, 326 Mich 242. Seven of the lots have a of 20 feet and one 24.44 feet, on Ford road, with depths varying 100 to 110 feet. of plaintiffs purchased lots prior and some after, the adoption the ordinance which zoned lots for residence C use and some bought after adoption of an amendment changing the zoning to the residence A classification. Original building restrictions, since expired, use of some of the lots to business purposes and others to business or residential. 498 across the road in township have been zoned light commercial since our holding in Ritenour and many are so Lots on the south side of Ford road, immediately west of the lots here involved, are zoned business and those to the east, running for a considerable distance, are vacant. The ordinance in question provides "there be minimum of 10 feet between residences." Plaintiffs prayed that the ordinance be decreed to unconstitutional and void as applied their lots, that be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that building permit for nonresidential be required to issue as relates to 1 of the lots. Defendant says the bill is multifarious. This it predicates in part on the that some plaintiffs acquired before, and after, the ordinance and subsequent amendment, suggesting that, on authority of Hammond v. Bloomfield Hills Building 331 Mich 551, the rights of who purchased before the ordinance for that reason, from those who thereafter. Hammond does not so hold. Provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township Building Inspector, 321 193. CL 1948, § Ann § 27.591), permits joining a number of plaintiffs if sufficient grounds appear for uniting of action in order promote the convenient administration of justice. That is the consideration warranting joinder particularly because is not thereby prejudiced. Gilmer v. Miller, 319 Mich 136. fact 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring to him of building permit, which might be 499 accomplished by does not render the bill multifarious as equity, having acquired to restrain defendant may retain it to grant complete relief and finally dispose of the controversy even though some of questions could have been raised and some of the relief sought have been obtained in a law action. City of Ecorse v. Community Hospital Authority, 336 Mich 490. Defendant contends that plaintiffs had an adequate remedy at law for the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to 7 of the it does not that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and purposes. Defendant may not, through device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. Trunk Western R. Co. v. City Detroit, 326 Mich 387; Long v. City of Highland Park, 329 Mich 146. Under such equity alone could afford plaintiffs necessary remedy. Resort was had to equity for the purpose of having ordinances declared invalid and their enforcement in Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Waterford, 317 Mich 359; Faucher v. Grosse Ile Township Building Inspector, supra; Long v. City of Park, supra; Hitchman Township of Oakland, 329 331. the ordinance unreasonable and confiscatory as to plaintiffs' lots? It limits to residences under provisions, cannot be constructed on these lots at width of more than 10 feet, comparable, 500 in this respect, to the situation in Other requirements of the ordinance with respect to area, minimum width of et cetera, cannot be complied with so as permit construction of usable residences. Defendant's answer admits, in effect, plaintiffs' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for building of residences thereon. think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there plaintiff the prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was by plaintiff within a after adoption of the ordinance while here was not brought years later, do serve to alter the fact that the provisions of the ordinance render plaintiffs' property here almost worthless. That the city may not do. Long v. City of Highland Park, supra. Transfer of or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable confiscatory It is invalid applied to plaintiffs' lots. Finally, defendant urges that plaintiffs have standing in a court of equity because they did not first apply to the appeal board created under the ordinance. This point not raised below nor in the statement of reasons and grounds for appeal accordingly, is not entitled to consideration here. At all events, it is without merit. The appeal could not determine the validity of the ordinance nor afford plaintiffs necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation 501 proceedings was sought. Austin v. Older, 278 Mich 518. with costs to plaintiffs. BUTZEL, C.J., and CARR, BUSHNELL, BOYLES, REID, KELLY, JJ., concurred.	341 MICH. 495 (1954) 67 N.w.2D 718 RobYNS V. cITy of deARBoRN. DOcKeT NO. 56, CALenDAr NO. 46,289. SuPREME COURt OF miCHiGan. DeCiDed dECemBer 29, 1954. jOhN j. FiSH, fOr PLaiNtIFFs. DaLE H. FilLmore, COrPOraTION cOunSEL, AND b. waRd sMiTh, fReDERiCk G. WeidEmAN aNd jaMEs A. BrOdERiCk, aSsIsTanTs COrporaTion CoUNsEl, for dEfENDaNt. dEthmers, J. dEFEnDANT aPpeaLs froM deCreE enJOInINg ENFoRceMent Of a zoniNG ORdINAncE AGAINsT PlaINtIFFS' propERtY beCAUSe unreasoNaBlE AND coNfiscAtOrY AS ApplIED tHEreTO. eacH Of pLAiNtiFfS oWnS 1 oF 8 LoTS ON tHe SoUtH siDE Of FOrD rOaD IN THe CitY of dEaRBorN aCrosS FROm tHe LOts In dEarBorN ToWnShIP InVoLvEd In RiTenouR V. TownsHIp of DeaRboRn, 326 MicH 242. SEVEN oF the LoTS HAvE a WidTH OF 20 FeEt ANd OnE 24.44 FEEt, FRoNTinG ON foRD rOad, WiTh dePTHS VarYiNg fRom 100 To 110 fEET. sOmE of pLAintiffs purChasEd THEiR LoTs prioR tO, AnD somE AfteR, ThE ADopTION OF THe OrIGInal OrdINANCe whicH zOneD THe Lots fOr rESidEnce c Use And SOme bOUght AfTer AdOpTION Of aN amEndmeNt ChAngING THe ZOning To the PrEseNt ResIdeNCE a classifiCATiOn. oriGinAL BuilDING ResTRiCTiONs, SiNCe EXPirED, liMItEd USE OF sOMe of The LotS tO buSiNesS pURposES And oThErs tO buSineSs or rEsidenTiaL. 498 LotS AcRoSs thE road In THe toWnsHIP haVe beeN ZoneD LiGhT cOMMErcial Since oUR HoLdINg in rItEnOUr aNd mAny ARe So uSED. LOTs oN thE sOUtH SIDE oF FORd Road, iMMEdIatElY West of tHE lOts hERE inVOLVed, aRE ZONEd BuSinESs B and tHose To ThE eAST, ruNnIng FoR a COnsIDerAbLe DIStANcE, arE vAcanT. The oRDinANCE IN QUestIOn PrOViDES "THerE sHalL bE A MINiMUM of 10 Feet beTwEEN resIdENces." PlAIntIfFS pRAYeD tHat tHE ordINaNce bE dECrEed TO BE uNCOnSTITUTIoNaL ANd Void AS aPpLIeD to thEIr LoTs, ThAT they be DECreeD to Be buSiNESs PrOpertY, THAT DefenDanT Be eNjOINed FrOM enFOrcInG THE ORDINaNcE wITH RESPECt THErETO, aNd That a builDiNg pERMit For NONREsIDeNtIal purposES be ReQUiRED TO Issue aS reLatEs TO 1 oF thE LOTS. DEfendant says The bilL iS MULTIFarIoUS. thiS IT PREdicaTES in paRT oN ThE fAcT tHaT soMe PlAinTIffS ACquIReD lOTs BEfoRE, ANd SOMe AfTEr, thE ORdInAnCe ANd iTs sUBSeQuENT AmENdMEnT, sUggESTIng ThaT, oN ThE auThOriTy Of hAMMoND v. BloOMfiEld HILls buildINg iNsPEctOr, 331 miCh 551, THe rIGHTs OF thoSE wHo pUrChaSed beforE tHE ORDINaNcE dIffeR, FoR tHAt reAsoN, fRoM tHosE wHo BOuGhT THerEAfTeR. haMmONd DoES nOT sO hoLD. pROVISIOnS of a zOnINg ORdInANCE voId aS rELAteS tO A LOt BeCaUse UnREASONabLE AND ConfISCatORy ARe NoT MADE VAlid with respECT theRETO By tHE TranSfer OF tItLe froM the owNER to aNother. fauCHeR V. grOssE ile TOWNsHiP BUilDiNg INSpeCtOR, 321 MICH 193. Cl 1948, § 608.1 (StaT Ann § 27.591), PErMITS JOInIng a nuMbER of pLaInTiffS if sUFFiciEnt gRouNDs APPear foR UNITINg thE cauSES OF aCTioN iN ORdEr To pRoMOTe ThE cONVENienT ADmInisTRatIOn oF JuSTiCe. tHaT iS ThE CONSIDeraTIOn wARRanTIng jOINder here, pARTicULaRLy BECAusE deFENdaNt iS not THerebY prEjUdicEd. gilmer v. MIlLER, 319 MiCh 136. thE FAct tHat 1 PLaintiFF seekS, IN AdditIon To INjunCTIVE reLiEf, a PROvISIOn iN tHE DeCREE REqUirinG iSsuaNcE TO hIm of A buIlDIng pERmIt, whIch MiGHT BE 499 AcCOmplIShed BY MANDAmUs, DoeS NOt RenDeR the BILl MUlTiFaRious inaSMucH As EQuity, HAVIng acQuiRed juRIsdiCtion To REsTraIn dEfENdant as PrAyed, MAY retAIN IT To Grant COmPleTe rELIEF anD fINally DiSPose Of THE coNTrOVersY EVen ThoUGh soMe oF tHe quEstIONS pROPOUNDeD cOULd HAVe BeEn RaISed anD SOme of THe rELIEf soUgHt cOulD hAve BEEN obtAiNEd In a LaW ACtION. ciTy OF Ecorse v. PeopLeS coMMuNiTY hosPiTal aUtHoriTy, 336 MiCH 490. DeFENdANt CoNTeNds That plaiNTIFFS HaD An adeQUaTE REMEDY aT LAw FoR tEsTING the ValiDitY of The ordiNANCe, naMElY, MaNDAmUs TO cOMpEL ISSUINg of buiLDiNG pErMIts OF a ChARaCtER PRohIbIteD BY the ORDinance. aS RELAtES tO 7 OF The pLAiNTIFfs, IT DOeS NOt apPEaR tHAT tHeY WeRE readY To builD Or deSiRed Such PeRmiTS. frOm The plEADinGs it DOes aPPeAR THaT DefEnDanT wAs aBOUt To iNStitUte ConDEMNATIoN prOCeeDINgS agAiNSt thE LoTS in QuesTIoN and oTherS FOr paRk anD greeN-BeLT puRposEs. dEfendAnT may noT, THRough ThE dEvICE of ZoNiNg FoR a UsE TO WHicH ProPeRTY Is nOt sUITeD, DEPrEss iTS VaLUe PrelimiNarY to CONdEmnINg it FOR puBlic puRpOse. GRAnd TRUnK wesTern r. CO. V. CITY oF DetrOiT, 326 MICH 387; lONg v. ciTY Of HiGhLANd Park, 329 MIcH 146. uNder sUch cIRcUmsTANcES, eQUITy aLoNE cOULD AffORD pLAInTIFfs tHE NECESsary reMeDY. reSort WAs had To equITy fOR THE pUrpOse of haViNg ZoniNg oRdInAnCeS dEClareD invALid aND theIr eNfORcEMEnT enjoinED In rItEnoUr v. TownsHip OF DeARBOrn, supra; eliZAbETH LaKE ESTaTES v. toWNshiP of WATerFord, 317 MIcH 359; faUChER V. gRoSSe iLE TOWNsHip BUilDing InsPECTor, SuPrA; LOng V. cITY OF hIgHLaND paRK, SuPRa; hItCHMaN v. towNsHIP oF oAKLanD, 329 Mich 331. is the ORdInANCE UNReaSONAblE and cOnfIsCaTORY as ApPLieD tO PLaIntiFfs' LotS? iT limitS UsE To RESiDences WHiCH, UNdEr ItS PRoVIsIOns, CAnnot be CoNStrucTed ON tHEse LOts aT a wiDTH OF mOre tHan 10 FeEt, cOMpArAblE, 500 IN tHIs ResPeCt, TO The sitUATIon in rITeNOur. other rEQUirEMEnTS of tHE ordINanCE wITh RESPecT TO areA, MiNIMUM WIDth oF SIDe yARDS, et cEteRA, cANNOT Be complied wIth SO As tO PErMIt CoNsTRUcTIon Of USaBLE RESIdEnCES. DEFEndaNT's anSWER Admits, iN eFFECT, pLAInTIFfs' CHarge, THAT THe pRovisiONs OF THE oRDINaNce MakE Use Of the LOts FoR reSIDenTial PURpOSEs phySICAlly impOsSIBLE, by aLlEGINg, iN ReSpOnSE THERETO, That PLaINTIffS CoULd comPLY By cOmBInING 2 OR mOre LoTs foR THe BuIldInG of REsIdEnces tHEREOn. we tHiNK the DECISIoN IN rItEnouR ContrOLling hERE. DIsTInCTions BetwEen THat CAsE AnD ThIs IN ThE rEsPect ThAt theRe the PLaINTIFF acquIrEd thE propeRTY pRIor To ENActmEnT Of THE ORdiNANCE, ThaT tHE PrOpERtY There INVOlved HAd oNcE BEEn ZoNED fOr busInEss PURPOSes, AnD thaT thE acTion THeRe WAS bROught by PlaINTiFf wItHin A YeaR aFTer adOptIoN of thE ordiNAnCe WHIle heRe iT wAS NOT broUGHT untIL 22 YEARs LATeR, DO NOt SErvE To ALTER The fAct That THe ProvisiONS of The oRdiNANce Would ReNdEr pLAInTifFs' proPeRty hErE alMosT WorthlESS. THaT thE CItY MaY NoT DO. lOnG V. CITY OF hiGHlAnD ParK, SuPRa. tRansFeR of TiTLE, or the lAPse OF 22 YeaRs, AFtER ADOPTIon Of tHe ORdINANCE doEs NOt RELIevE ThE ORDinANCe of itS UnrEAsONable aND CoNFIsCAToRY CHAracTER. iT iS iNVaLId as APpLiEd To pLAIntiFfS' lOts. FiNallY, dEFENdaNt URGeS ThaT plAinTIFfS HAVE No stAnDIng In a COurT Of EqUity BecausE thEy dId nOT FIrSt APPlY to the ApPeal BOArd CrEaTeD UNdeR tHE oRdiNAnCe. thiS pOInT WaS NoT raisEd BeLOw noR IN THE STaTEMeNt Of reASONS AND grOunDs fOr AppEal AND, aCCORdingLY, Is NOT eNtITLED tO CoNSIDErAtioN hERE. at aLl EveNTs, It iS wiTHOuT MeRiT. ThE APpEaL boArd coULD NOt DetERMine The VaLiDitY of The OrdinanCE nor AffORd PLAiNTIFFs tHe NecesSarY ReliEF UNdEr The cIrCuMsTANCEs oF THIS CASE WHen BuILdinG pERmItS were Not desirED But ReDReSS AGaINst MeaSuRES LikEly tO DepResS valUE priOr to conDeMNAtiON 501 pRoceedINgS wAs SOugHT. aUsTin V. OLdER, 278 miCh 518. afFirMed, WiTH COSTs to pLaIntIffS. BUTZEl, c.j., and cARr, bUSHNell, sHARPe, bOylES, REiD, And KelLY, Jj., coNcuRRed.	341 Mich.495(1954) 67 N.W.2d718 ROBYNS v. CITY OF DEARBORN. DocketNo. 56, CalendarNo. 46,289. Supreme Courtof Michigan. DecidedDecember 29, 1954. John J. Fish, for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. WardSmith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, fordefendant. DETHMERS, J. Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied thereto. Eachof plaintiffs owns 1of 8 lots on the south side of Ford road inthe city of Dearborn across fromthelots in Dearborn township involved in Ritenour v. Township of Dearborn, 326 Mich 242. Seven ofthe lotshave a width of 20 feet and one 24.44 feet, frontingon Ford road, with depths varying from 100 to 110feet. Some of plaintiffs purchased theirlots prior to, and some after, the adoption of the original ordinancewhich zoned the lots for residence Cuse andsome boughtafter adoption of an amendment changing the zoning to the present residence A classification. Original building restrictions,since expired, limited use of some of the lots tobusiness purposes and others to business or residential. 498 Lots across the road in the township have been zoned lightcommercialsince our holding in Ritenour andmany are soused. Lots onthe south side of Ford road, immediately west of thelots here involved, are zoned business B and thoseto the east, running for a considerabledistance,are vacant. The ordinance inquestion provides "thereshall be a minimum of 10feet betweenresidences." Plaintiffs prayed that the ordinance be decreedto beunconstitutional andvoid as applied totheir lots, thattheybe decreed to be business property, that defendant be enjoined fromenforcing the ordinance with respect thereto,and that a building permit for nonresidential purposesbe required to issue as relates to 1 of the lots. Defendant says the billis multifarious.This it predicates in part on the fact that some plaintiffs acquired lotsbefore, and some after, the ordinance and its subsequentamendment, suggesting that, on the authority of Hammondv. Bloomfield Hills Building Inspector, 331 Mich 551, the rights of those who purchased before the ordinancediffer, for that reason, fromthosewho bought thereafter.Hammond does not so hold. Provisions of a zoning ordinance voidas relates to a lot becauseunreasonable and confiscatory are notmade valid withrespect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township BuildingInspector, 321 Mich 193. CL 1948, § 608.1 (Stat Ann § 27.591),permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich 136. The factthat 1 plaintiff seeks, in additionto injunctive relief, aprovision in the decree requiring issuance to him of abuilding permit, which might be 499 accomplished bymandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendantas prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questionspropounded could have been raisedandsome of the relief sought could have been obtainedin a law action. Cityof Ecorsev. Peoples Community Hospital Authority, 336 Mich 490. Defendant contends that plaintiffs had anadequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance.As relates to 7ofthe plaintiffs, it does not appear that theywere ready to build or desired such permits. From the pleadings it does appear that defendant wasabout to institute condemnation proceedingsagainst the lots in question and others for park and green-belt purposes. Defendant maynot, throughthe device of zoning fora use to which property is not suited, depressits value preliminarytocondemning it for public purpose. Grand Trunk Western R.Co. v. City of Detroit, 326Mich387; Long v. City ofHighland Park,329 Mich146. Under such circumstances, equityalone could afford plaintiffs the necessary remedy. Resort was had to equity for thepurposeof having zoning ordinances declared invalid and their enforcement enjoined inRitenourv. TownshipofDearborn, supra; Elizabeth Lake Estates v. Township of Waterford, 317 Mich 359;Faucher v.Grosse IleTownship Building Inspector, supra; Long v. City of HighlandPark, supra; Hitchman v. TownshipofOakland,329 Mich 331.Is the ordinance unreasonableand confiscatory as applied to plaintiffs' lots? It limitsuse to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, 500 in this respect, tothe situationin Ritenour. Other requirements of the ordinancewith respect to area, minimum width of side yards, et cetera, cannot be compliedwithso asto permit construction of usable residences. Defendant's answer admits, in effect, plaintiffs' charge, that the provisions ofthe ordinance make useof the lots forresidential purposes physically impossible, by alleging, inresponse thereto,thatplaintiffs couldcomply by combining2 or more lots for the building of residences thereon. We think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there the plaintiff acquiredthe property prior to enactment of the ordinance, that the property thereinvolved hadonce beenzoned for business purposes, and that the action there was brought by plaintiff within a year after adoptionof the ordinancewhile hereit wasnot brought until22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs' property here almost worthless. That the city maynot do. Long v. City of Highland Park, supra. Transfer oftitle, or the lapse of 22years, after adoption of the ordinance does notrelieve theordinance of itsunreasonable and confiscatory character.It is invalidas appliedto plaintiffs'lots. Finally, defendant urgesthat plaintiffs have no standing in a court of equity because theydid not first apply tothe appeal board created under theordinance. This point was notraised below norin the statement of reasons and grounds for appeal and,accordingly, is notentitled to consideration here. At all events, it is without merit. Theappeal board could not determine thevalidityof the ordinance nor afford plaintiffs the necessary relief under the circumstances of thiscasewhen building permits werenot desired but redress against measures likely to depress value priorto condemnation 501proceedingswas sought. Austin v. Older, 278Mich518. Affirmed, with costs to plaintiffs. BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ.,concurred.	_341_ Mich. 495 (1954) 67 N.W.2d 718 ROBYNS v. CITY _OF_ _DEARBORN._ Docket No. 56, Calendar No. 46,289. Supreme Court _of_ _Michigan._ Decided December 29, _1954._ John J. _Fish,_ for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick _G._ _Weideman_ and James A. Broderick, Assistants Corporation Counsel, for defendant. DETHMERS, J. _Defendant_ appeals _from_ decree enjoining enforcement _of_ _a_ _zoning_ ordinance against _plaintiffs'_ _property_ because unreasonable and confiscatory as applied thereto. Each of plaintiffs owns _1_ _of_ 8 lots on _the_ _south_ side of _Ford_ road _in_ the _city_ of Dearborn _across_ _from_ _the_ _lots_ in Dearborn _township_ _involved_ in _Ritenour_ v. Township of Dearborn, 326 Mich _242._ _Seven_ of the lots _have_ _a_ width of 20 feet and one _24.44_ feet, _fronting_ on Ford road, _with_ depths varying _from_ 100 to 110 _feet._ Some of plaintiffs _purchased_ their lots prior to, and some after, the adoption of _the_ original ordinance which zoned the lots for residence _C_ use and some bought after adoption of an amendment changing the zoning to the present residence A classification. Original building _restrictions,_ since expired, limited use of some _of_ the lots _to_ business purposes and others to business or residential. 498 Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford road, _immediately_ west of the lots here involved, are zoned business _B_ and _those_ to _the_ east, running for a considerable distance, are vacant. _The_ _ordinance_ in question provides "there shall be _a_ minimum of 10 _feet_ between _residences."_ Plaintiffs prayed that _the_ _ordinance_ be decreed to _be_ _unconstitutional_ and _void_ as applied to _their_ lots, that they be decreed to be business property, that defendant _be_ enjoined _from_ enforcing _the_ _ordinance_ with respect thereto, _and_ that a building permit _for_ nonresidential purposes be required to issue as relates _to_ 1 of the lots. Defendant says the bill _is_ multifarious. This _it_ _predicates_ in part on the fact that some plaintiffs _acquired_ lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills _Building_ Inspector, _331_ Mich 551, _the_ _rights_ of those _who_ purchased before the _ordinance_ differ, for that reason, from those who _bought_ thereafter. Hammond does not _so_ hold. Provisions _of_ a zoning ordinance void as relates to _a_ lot because unreasonable and confiscatory are not made valid with respect thereto by the _transfer_ of _title_ _from_ the owner to another. _Faucher_ v. Grosse Ile _Township_ Building _Inspector,_ _321_ Mich 193. CL 1948, § 608.1 (Stat Ann § 27.591), permits joining _a_ number of _plaintiffs_ if _sufficient_ grounds appear for _uniting_ _the_ causes of action in order to _promote_ the _convenient_ administration _of_ _justice._ _That_ is the consideration warranting joinder here, particularly because _defendant_ _is_ _not_ thereby prejudiced. Gilmer v. _Miller,_ _319_ Mich 136. The fact that 1 plaintiff _seeks,_ _in_ addition to injunctive relief, a provision in _the_ decree _requiring_ issuance to him _of_ a building permit, which might be 499 accomplished by mandamus, does _not_ _render_ the bill multifarious inasmuch _as_ equity, having acquired jurisdiction to restrain defendant as _prayed,_ may retain it to grant complete relief and finally dispose of the controversy _even_ though some _of_ the questions propounded _could_ have been raised and _some_ of the relief sought could have been _obtained_ in a law action. City _of_ Ecorse _v._ Peoples _Community_ Hospital Authority, 336 Mich 490. Defendant contends that _plaintiffs_ had _an_ _adequate_ remedy at _law_ for testing the _validity_ of the ordinance, namely, mandamus to compel issuing of _building_ _permits_ _of_ a _character_ prohibited by the ordinance. _As_ relates to 7 _of_ the plaintiffs, it does _not_ appear that they _were_ _ready_ to build or desired such permits. From the pleadings _it_ does appear that defendant was about _to_ institute _condemnation_ _proceedings_ against the lots in _question_ and others for _park_ _and_ _green-belt_ _purposes._ _Defendant_ _may_ not, through the device of zoning for _a_ use to _which_ property is not suited, depress its value _preliminary_ to condemning it for public _purpose._ Grand Trunk _Western_ R. Co. v. City _of_ Detroit, 326 Mich _387;_ Long v. _City_ of Highland Park, 329 Mich 146. Under such circumstances, equity _alone_ _could_ afford plaintiffs _the_ necessary _remedy._ Resort was _had_ to equity for the purpose of having _zoning_ ordinances declared _invalid_ and _their_ enforcement enjoined _in_ Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Township _of_ Waterford, 317 Mich 359; Faucher v. Grosse Ile Township Building Inspector, supra; _Long_ v. _City_ of Highland _Park,_ _supra;_ Hitchman v. Township of _Oakland,_ 329 Mich 331. Is the ordinance unreasonable and confiscatory as applied to plaintiffs' _lots?_ It limits use to _residences_ which, _under_ its provisions, cannot be constructed on these lots at a _width_ of more than 10 feet, comparable, 500 in this respect, to the _situation_ in Ritenour. Other requirements of _the_ ordinance with _respect_ to area, minimum width of side yards, et cetera, _cannot_ be complied with so as to permit _construction_ of usable residences. Defendant's answer admits, _in_ effect, plaintiffs' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of _residences_ thereon. _We_ think the decision in Ritenour controlling here. Distinctions between that _case_ and this in _the_ respect that there the plaintiff acquired the property _prior_ _to_ enactment of the ordinance, that the property there involved had once been _zoned_ for business purposes, _and_ that _the_ _action_ there was brought by plaintiff within a year _after_ adoption of _the_ ordinance _while_ here it was not brought until 22 years later, do not serve to alter _the_ fact that the provisions of the ordinance would render plaintiffs' property here almost worthless. That the _city_ may not do. Long _v._ City of _Highland_ Park, supra. _Transfer_ of title, or _the_ lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of _its_ unreasonable and confiscatory character. _It_ is _invalid_ as applied _to_ plaintiffs' lots. Finally, defendant urges that plaintiffs have no _standing_ in a court of equity because they did not first apply to the _appeal_ board created under the ordinance. This point was not _raised_ _below_ nor in the _statement_ of _reasons_ and grounds for _appeal_ _and,_ accordingly, is _not_ entitled to consideration here. At _all_ events, it is without merit. The _appeal_ _board_ could not _determine_ the _validity_ of the _ordinance_ nor afford _plaintiffs_ the necessary relief _under_ the circumstances of this case when _building_ permits were not _desired_ but redress against measures likely to depress value _prior_ to _condemnation_ 501 proceedings was sought. _Austin_ v. Older, 278 Mich _518._ Affirmed, with costs to plaintiffs. BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, _REID,_ and KELLY, JJ., concurred.
791 N.E.2d 568 (2003) 339 Ill. App.3d 1086 274 Ill.Dec. 476 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael SLOVER, Jr., Michael Slover, Sr., and Jeanette Slover, Defendants-Appellants. No. 4-02-0892. Appellate Court of Illinois, Fourth District. June 6, 2003. 569 Danile D. Yuhas and John M. McCarthy, both of State Appellate Defender's Office, of Springfield, for appellants. Scott Rueter, State's Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State's Attorneys Appellate Prosecutor's Office of counsel), for the People. Justice TURNER delivered the opinion of the court: In May 2002, a jury convicted defendants, Michael Slover, Jr., Michael Slover, Sr., and Jeanette Slover, of the first degree murder of Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal death. All three defendants were sentenced to prison and filed a notice of appeal with this court. In September 2002, the State filed a motion to release defense exhibits for scientific testing. The trial court granted the motion and found no just reason for delaying the appeal. On appeal, defendants argue the trial court had no jurisdiction to order testing of defense exhibits because those exhibits are part of the record on appeal. The State argues defendants' appeal must be dismissed because the trial court's order did not constitute a final order or judgment from which defendants could appeal. We affirm. I. BACKGROUND In May 2002, a jury convicted defendants Michael Slover, Jr., and his parents, Michael Slover, Sr., and Jeanette Slover, of the first degree murder of Michael, Jr.'s former wife, Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal death. In June 2002, the trial court sentenced all three defendants to 60 years' imprisonment. Michael, Jr., and Michael, Sr., also received five-year prison sentences for their convictions of concealment of a homicidal death. In July 2002, defendants filed motions to reduce their sentences, which the trial court denied. Thereafter, defendants filed a notice of appeal (No. 4-02-0587). In September 2002, the State filed a motion, naming all three defendants, to 570 release defense exhibits for scientific testing. The motion indicated three defense exhibits admitted during defendants' trial contained some animal hairs unsuitable for identification, along with some possible cat hairs, that were taken by police from a 1992 Bonneville. Further, Mary Slover, the daughter of Michael, Sr., and Jeanette, and the sister of Michael, Jr., formerly lived at a house in Springfield that a forensic scientist identified to have cat and dog hairs following an investigatory examination. The State indicated a petition had been filed under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 through 7-1 (West 2000)) in Macon County case No. 00-JA-12, alleging the biological son of Michael, Jr., and the adopted son of Mary was a neglected and abused minor. The State had filed an expedited petition for termination of parental rights. The State indicated the doctor who performed canine deoxyribonucleic acid (DNA) testing in the defendants' murder case was willing to perform feline DNA testing of the State's enumerated exhibits and the cat hair from Mary's former residence. The State submitted "the release of the three defense exhibits for feline DNA testing would advance the interests of justice in the pending juvenile case of [No.] 00-JA-12." In September 2002, the trial court held a hearing on the State's motion. Defendants' counsel argued the trial court had no jurisdiction as their appeals had been filed. If the court did have jurisdiction, defendants argued, the State wanted to subject the cat hair to destructive testing, which would be prejudicial to defendants if the appellate court ordered further proceedings in the trial court. The trial court found it had jurisdiction to rule on the matter, stating it had authority to enter orders with regard to property in its custody. The court also found the State presented good cause for destructive testing of the evidence. As a condition of the testing, the court required a photograph taken to identify the exhibits. Defense counsel requested the clerk be directed to file a notice of appeal. The trial court found its order was governed by the civil appeal rules pursuant to Supreme Court Rule 612 (177 Ill.2d R. 612). In its written order pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), the court concluded there was no just reason for delaying the appeal. Per defense counsel's request, the trial court stayed its order until further order by the court. This appeal followed. In October 2002, Jeanette filed a motion to join in the interlocutory appeal. She later filed a notice of appeal in November 2002. In February 2003, this court allowed Jeanette's motion for leave to file a late notice of appeal. II. ANALYSIS A. Appellate Court Jurisdiction Before we determine whether the trial court had jurisdiction to consider the State's motion, we must determine whether this court has jurisdiction to consider defendants' appeal. In their appellate brief, defendants contend this court has jurisdiction pursuant to Supreme Court Rules 603 and 606 pertaining to criminal appeals (134 Ill.2d R. 603; 188 Ill.2d R. 606). The State argues we must dismiss defendants' appeal. The trial court issued an order pursuant to Supreme Court Rule 304(a), finding no just reason for delaying appeal of its order granting the State's motion to release defense exhibits for scientific testing. Supreme Court Rule 304(a) provides, in part, as follows: "If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than 571 all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 155 Ill.2d R. 304(a). When the criminal appeal rules govern, Rule 304(a) does not apply. In re D.D., 337 Ill.App.3d 998, 1008, 272 Ill.Dec. 706, 788 N.E.2d 10, 17 (2002). However, an appellate court's jurisdiction to consider an appeal "does not derive solely from a party's invocation of the correct supreme court rule." In re O.H., 329 Ill.App.3d 254, 257, 263 Ill.Dec. 718, 768 N.E.2d 799, 801 (2002). Moreover, the trial court indicated the civil appeal rules applied after looking for guidance under Supreme Court Rule 612, setting forth the procedural matters that are governed by civil appeal rules. The court noted civil appeal rules applied to the removal of records from the reviewing court. Supreme Court Rule 372 (155 Ill.2d R. 372), a civil appeal rule applicable to criminal appeals, focuses on the removal of the record from the appellate court, not the removal of exhibits from the record on appeal for scientific testing. However, the similarity between the procedural matters of removing records from the reviewing court and allowing testing of an exhibit that is part of the record on appeal is enough to enable the case to fall within the civil appeal rules. Here, the order allowing destructive testing of the exhibits created a final judgment. As this amounted to a procedural matter, along with the trial court's written order pursuant to Rule 304(a), we conclude this case is properly before us. B. Trial Court Jurisdiction Generally, "[t]he filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance in a case." People v. Kolzow, 332 Ill.App.3d 457, 459, 265 Ill.Dec. 532, 772 N.E.2d 903, 904 (2002). The trial court may not then enter orders changing or modifying a judgment or its scope or interfering with the review of the judgment. Kolzow, 332 Ill. App.3d at 459, 265 Ill.Dec. 532, 772 N.E.2d at 905. The trial court does retain jurisdiction to determine matters that are collateral or incidental to the judgment being appealed. Brownlow v. Richards, 328 Ill. App.3d 833, 837, 263 Ill.Dec. 31, 767 N.E.2d 482, 485 (2002). In this case, the trial court's order did not modify the judgment or interfere with the review of that judgment. Further, the court's order did not dispose of the issues defendants had invoked our jurisdiction to review in their murder appeal. Thus, defendants' criminal appeal did not automatically divest the trial court of jurisdiction in regard to the State's motion. Defendants argue the trial court did not have jurisdiction to order the scientific testing of defense exhibits. We disagree. Defendants contend the physical evidence, such as the cat hair, is part of the record on appeal based on Supreme Court Rule 608 (177 Ill.2d R. 608), and thus the trial court could not make substantive rulings on	791 n. e. 2d 568 ( 2003 ) 339 ill. app. 3d 1086 274 ill. dec. 476 the people of the state of illinois, plaintiff - appellee, v. michael slover, jr., michael slover, sr., and jeanette slover, defendants - appellants. no. 4 - 02 - 0892. appellate court of illinois, fourth district. june 6, 2003. * 569 danile d. yuhas and john m. mccarthy, both of state appellate defender ' s office, of springfield, for appellants. scott rueter, state ' s attorney, of decatur ( norbert j. goetten, robert d. biderman, and denise m. ambrose, all of state ' s attorneys appellate prosecutor ' s office of counsel ), for the people. justice turner delivered the opinion of the court : in may 2002, a jury convicted defendants, michael slover, jr., michael slover, sr., and jeanette slover, of the first degree murder of karen slover. michael, jr., and michael, sr., were also convicted of concealment of a homicidal death. all three defendants were sent to prison and filed a memorandum of application with this court. in september 2002, the state filed a motion to release defense exhibits for scientific testing. the trial court granted the motion and found no just reason when initiating the appeal. on appeal, defendants argue the trial court had no jurisdiction to order testing of defense exhibits because those exhibits are part of the record on appeal. the state argues defendants ' appeal must be dismissed because the trial court ' s order did not create a final order or judgment from which defendants could appeal. we affirm. i. background in may 2002, a jury convicted defendants michael slover, jr., and his parents, michael slover, sr., and jeanette slover, of the first degree murder of michael, jr. ' s former wife, karen slover. michael, jr., and michael, sr., were also convicted of concealment of a homicidal death. in june 2002, the trial court sentenced all three defendants to 15 years ' imprisonment. michael, jr., but michael, sr., also received five - month prison sentences for their convictions of concealment of a homicidal death. in july 2002, defendants filed motions to reduce their sentences, which the trial court denied. thereafter, defendants filed a notice of appeal ( no. 4 - 02 - 0587 ). in september 2002, the state filed a motion, naming all three defendants, to * 570 release defense exhibits for scientific testing. the motion indicated three defense exhibits admitted during defendants ' trial contained some animal hairs unsuitable for identification, along with some possible cat hairs, that were taken by police from a 1992 bonneville. further, mary slover, the daughter of michael, sr., and jeanette, and the sister of michael, jr., formerly lived at a house in springfield that a forensic scientist identified to have cat and dog hairs following an investigatory examination. the state indicated a petition had been filed under the juvenile court act of 1987 ( 705 ilcs 405 / 1 - 1 through 7 - 1 ( west 2000 ) ) in macon county case no. 00 - ja - 12, alleging the biological son of michael, jr., and the adopted son of mary was a neglected and abused minor. the state had filed an expedited petition for termination of parental rights. the state indicated the doctor who performed canine deoxyribonucleic acid ( dna ) testing in the defendants ' murder case was willing to perform feline dna testing of the state ' s enumerated exhibits and the cat hair from mary ' s former residence. the state submitted " the release of the three defense exhibits for feline dna testing would advance the interests of justice in the pending juvenile case of [ no. ] 00 - ja - 12. " in september 2002, the trial court held a hearing on the state ' s motion. defendants ' counsel argued the trial court had no jurisdiction as their appeals had been filed. if the court did have jurisdiction, defendants argued, the state wanted to subject the cat hair to destructive testing, which would be prejudicial to defendants if the appellate court ordered further proceedings in the trial court. the trial court found it had jurisdiction to rule on the matter, stating it had authority to enter orders with regard to property in its custody. the court also found the state presented good cause for destructive testing of the evidence. as a condition of the testing, the court required a photograph taken to identify the exhibits. defense counsel requested the clerk be directed to file a notice of appeal. the trial court found its order was governed by the civil appeal rules pursuant to supreme court rule 612 ( 177 ill. 2d r. 612 ). in its written order pursuant to supreme court rule 304 ( a ) ( 155 ill. 2d r. 304 ( a ) ), the court concluded there was no just reason for delaying the appeal. per defense counsel ' s request, the trial court stayed its order until further order by the court. this appeal followed. in october 2002, jeanette filed a motion to join in the interlocutory appeal. she later filed a notice of appeal in november 2002. in february 2003, this court allowed jeanette ' s motion for leave to file a late notice of appeal. ii. analysis a. appellate court jurisdiction before we determine whether the trial court had jurisdiction to consider the state ' s motion, we must determine whether this court has jurisdiction to consider defendants ' appeal. in their appellate brief, defendants contend this court has jurisdiction pursuant to supreme court rules 603 and 606 pertaining to criminal appeals ( 134 ill. 2d r. 603 ; 188 ill. 2d r. 606 ). the state argues we must dismiss defendants ' appeal. the trial court issued an order pursuant to supreme court rule 304 ( a ), finding no just reason for delaying appeal of its order granting the state ' s motion to release defense exhibits for scientific testing. supreme court rule 304 ( a ) provides, in part, as follows : " if multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than * 571 all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * * in the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties. " 155 ill. 2d r. 304 ( a ). when the criminal appeal rules govern, rule 304 ( a ) does not apply. in re d. d., 337 ill. app. 3d 998, 1008, 272 ill. dec. 706, 788 n. e. 2d 10, 17 ( 2002 ). however, an appellate court ' s jurisdiction to consider an appeal " does not derive solely from a party ' s invocation of the correct supreme court rule. " in re o. h., 329 ill. app. 3d 254, 257, 263 ill. dec. 718, 768 n. e. 2d 799, 801 ( 2002 ). moreover, the trial court indicated the civil appeal rules applied after looking for guidance under supreme court rule 612, setting forth the procedural matters that are governed by civil appeal rules. the court noted civil appeal rules applied to the removal of records from the reviewing court. supreme court rule 372 ( 155 ill. 2d r. 372 ), a civil appeal rule applicable to criminal appeals, focuses on the removal of the record from the appellate court, not the removal of exhibits from the record on appeal for scientific testing. however, the similarity between the procedural matters of removing records from the reviewing court and allowing testing of an exhibit that is part of the record on appeal is enough to enable the case to fall within the civil appeal rules. here, the order allowing destructive testing of the exhibits created a final judgment. as this amounted to a procedural matter, along with the trial court ' s written order pursuant to rule 304 ( a ), we conclude this case is properly before us. b. trial court jurisdiction generally, " [ t ] he filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance in a case. " people v. kolzow, 332 ill. app. 3d 457, 459, 265 ill. dec. 532, 772 n. e. 2d 903, 904 ( 2002 ). the trial court may not then enter orders changing or modifying a judgment or its scope or interfering with the review of the judgment. kolzow, 332 ill. app. 3d at 459, 265 ill. dec. 532, 772 n. e. 2d at 905. the trial court does retain jurisdiction to determine matters that are collateral or incidental to the judgment being appealed. brownlow v. richards, 328 ill. app. 3d 833, 837, 263 ill. dec. 31, 767 n. e. 2d 482, 485 ( 2002 ). in this case, the trial court ' s order did not modify the judgment or interfere with the review of that judgment. further, the court ' s order did not dispose of the issues defendants had invoked our jurisdiction to review in their murder appeal. thus, defendants ' criminal appeal did not automatically divest the trial court of jurisdiction in regard to the state ' s motion. defendants argue the trial court did not have jurisdiction to order the scientific testing of defense exhibits. we disagree. defendants contend the physical evidence, such as the cat hair, is part of the record on appeal based on supreme court rule 608 ( 177 ill. 2d r. 608 ), and thus the trial court could not make substantive rulings on	791 N. E. 2d 568 (2003) 339 Ill. App. 3d 1086 274 Ill. Dec. 476 The PEOPLE of the State of Illinois, Plaintiff - Appellee, v. Michael SLOVER, Jr. , Michael Slover, Sr. , and Jeanette Slover, Defendants - Appellants. No. 4 - 02 - 0892. Appellate Court of Illinois, Fourth District. June 6, 2003. * 569 Danile D. Yuhas and J)hm M. McCarthy, both of State Appellate Defender ' s Office, of Springfield, for appellants. Scott Rueter, State ' s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State ' s Attorneys Appellate Prosecutor ' s Office of counsel ), for the People. Justice TURNER delivered the opinion of the court: In May 2002, a jury convicted defendants, Michael Slover, Jr. , Michael Slover, Sr. , and Jeanette Slover, of the first degree murder of Karen Slover. Michael, Jr. , and Michael, Sr. , were also convicted of concealment of a homicidal death. All three defendants were sentenced to prison and filed a notice of appeal with this court. In September 2002, the State filed a motion to release defense exhibits for scientific testing. The trial court granted the motion and found no just reason for delaying the appeal. On a)peZl, defendants argue the trial court had no jurisdiction to order testing of defense exhibits because those exhibits are part of the record on appeal. The State argues defendants ' appeal must be dismissed because the trial court ' s order did not constitute a final order or judgment from which defendants could appeal. We affirm. I. BACKGROUND In May 2002, a jury convicted defendants Michael Slover, Jr. , and his parents, Michael Slover, Sr. , and Jeanette Slover, of the first degree murder of Michael, Jr. ' s former wife, Karen Slover. Michael, Jr. , and Michael, Sr. , were also convicted of concealment of a homicidal death. In June 2002, the Rria, court sentenced all three defendants to 60 years ' imprisonment. Michael, Jr. , and Michael, Sr. , also received five - year prison sentences for their convictions of concealment of a homicidal death. In July 2002, defendants filed motions to reduce their sentences, which the trial court denied. Thereafter, defendants filed a notice of appeal (No. 4 - 02 - 0587 ). In September 2002, the State filed a motion, naming all three defendants, to * 570 release defense exhibits for scientific testing. The motion indicated three defense exhibits admitted during defendants ' trial contained some animal hairs unsuitable for identification, along with some possible cat hairs, that were taken by police from a 1992 Bonneville. Further, Mary Slover, the daughter of Michael, Sr. , and Jeanette, and the sister of Michael, Jr. , formerly lived at a house in Springfield that a forensic scientist identified to have cat and dog hairs following an investigatory examination. The State indicated a petition had been filed under the Juvenile Court Act of 1987 (705 ILCS 405 / 1 - 1 through 7 - 1 (West 2000) ) in Macon County case No. 00 - JA - 12, alleging the biological son of Michael, Jr. , and the adopted son of Mary was a neglected and abused minor. The State had filed an expedited petition for termination of parental rights. The State indicated the doctor who performed canine deoxyribonucleic acid (DNA) testing in the defendants ' murder case was willing to perform feline DNA testing of the State ' s enumerated exhibits and the cat hair from Mary ' s former residence. The State submitted " the release of the three defense exhibits for feline DNA testing would advance the interests of justice in the pending juvenile case of [No.] 00 - JA - 12. " In September 2002, the trial court held a hearing on the State ' s motion. Defendants ' counsel argued the trial court had no jurisdiction as their appeals had been filed. If the court did have jurisdiction, defendants argued, the State waBHed to subject the cat hair to destructive testing, which would be prejudicial to defendants if the appellate court ordered further proceedings in the trial court. The trial court found it had jurisdiction to rule on the matter, stating it had authority to enter orders with regard to property in its custody. The court also found the State presented good cause for destructive testing of the evidence. As a condition of the testing, the court required a photograph taken to identify the exhibits. Defense counsel requested the clerk be directed to file a notice of appeal. The trial court found its order was governed by the civil appeal rules pursuant to Supreme Court Rule 612 (177 Ill. 2d R. 612 ). In its written order pursuant to Supreme Court Rule 304 (a) (155 Ill. 2d R. 304 (a) ), the court concluded there was no just reason for dS/aying the appeal. Per defense counsel ' s request, the trial court stayed its order until further order by the court. This appeal followed. In October 2002, Jeanette filed a motion to j)Kn in the interlocutory appeal. She later filed a notice of appeal in November 2002. In February 2003, this court allowed Jeanette ' s motion for leave to file a late notice of appeal. II. ANALYSIS A. Appellate Court Jurisdiction Before we determine whether the trial court had jurisdiction to consider the State ' s motion, we must determine whether tYid court has jurisdiction to consider defendants ' appeal. In their appellate brief, defendants contend this court has jurisdiction pursuant to Supreme Court Rules 603 and 606 pertaining to criminal appeals (134 Ill. 2d R. 603; 188 Ill. 2d R. 606 ). The State argues we must dismiss defendants ' appeal. The trial court issued an order pursuant to Supreme Court Rule 304 (a ), finding no just reason for delaying appeal of its order granting the State ' s motion to release defense exhibits for scientific testing. Supreme Court Rule 304 (a) provides, in part, as follows: " If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than * 571 all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties. " 155 Ill. 2d R. 304 (a ). When the criminal appeal rules govern, Rule 304 (a) does not apply. In re D. D. , 337 Ill. App. 3d 998, 1008, 272 Ill. Dec. 706, 788 N. E. 2d 10, 17 (2002 ). However, an appellate court ' s jurisdiction to consider an appeal " does not derive solely from a party ' s invocation of the correct supreme court rule. " In re O. H. , 329 Ill. App. 3d 254, 257, 263 Ill. Dec. 718, 768 N. E. 2d 799, 801 (2002 ). Moreover, the trial court indicated the civil appeal rules applied after looking for guidance under Supreme Court Rule 612, setting forth the procedural matters that are governed by civil appeal rules. The court noted civil appeal rules applied to the removal of records from the reviewing court. Supreme Court Rule 372 (155 Ill. 2d R. 372 ), a civil appeal rule applicable to criminal appeals, focuses on the removal of the record from the appellate court, not the removal of exhibits from the record on appeal for scientific testing. However, the similarity between the procedural matters of removing records from the reviewing court and allowing testing of an exhibit that is part of the record on appeal is enough to enable the case to fall within the civil appeal rules. Here, the order allowing destructive testing of the exhibits created a final judgment. As this amounted to a procedural matter, along with the trial court ' s written order pursuant to Rule 304 (a ), we concl^dW this case is properly before us. B. Trial Court Jurisdiction Generally, " [t] he filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substaJc2 in a case. " People v. Kolzow, 332 Ill. App. 3d 457, 459, 265 Ill. Dec. 532, 772 N. E. 2d 903, 904 (2002 ). The trial court may not then enter orders changing or modifying a judgment or its scope or interfering with the review of the judgment. Kolzow, 332 Ill. App. 3d at 459, 265 Ill. Dec. 532, 772 N. E. 2d at 905. The trial court does retain jurisdiction to determine matters that are collateral or incidental to the juEgJent being appealed. Brownlow v. Richards, 328 Ill. App. 3d 833, 837, 263 Ill. Dec. 31, 767 N. E. 2d 482, 485 (2002 ). In this case, the trial court ' s order did not modify the judgment or interfere with the review of that judgment. Further, the court ' s order did not dispose of the issues defendants had invoked our jurisdiction to review in their murder appeal. Thus, defendants ' criminal appeal did not automatically divest the trial court of jurisdiction in regard to the State ' s motion. Defendants argue the trial court did not have jurisdiction to order the scientific testing of defense exhibits. We disagree. Defendants contend the physical evidence, such as the cat hair, is part of the record on appeal based on Supreme Court Rule 608 (177 Ill. 2d R. 608 ), and thus the trial court could not make substantive rulings on	791 N.E.2d 568 (2003) 339 Ill. App.3d 1086 274 Ill.Dec. 476 The PEOPLE of the of Illinois, Plaintiff-Appellee, v. Michael SLOVER, Jr., Michael Slover, Sr., and Jeanette Slover, Defendants-Appellants. No. 4-02-0892. Appellate Court of Illinois, Fourth June 6, 2003. 569 Danile D. Yuhas and John M. both of State Appellate Defender's of for appellants. Scott Rueter, State's Attorney, of (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State's Attorneys Appellate Prosecutor's Office of counsel), for the People. Justice TURNER delivered the opinion of the court: In May 2002, a jury convicted defendants, Michael Slover, Jr., Michael and Jeanette Slover, of first degree murder Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal All three defendants were sentenced to prison and filed a notice of appeal with this court. In September 2002, the State filed a motion to release defense exhibits for scientific testing. The trial court granted the motion and found no just reason for delaying the appeal. On appeal, defendants argue the trial had no jurisdiction to order testing of defense exhibits because those exhibits are part of the record on appeal. The State argues defendants' appeal be dismissed court's order did not constitute a final order or judgment from which defendants could appeal. We affirm. I. BACKGROUND In May 2002, a jury defendants Michael Slover, Jr., and his parents, Michael Slover, and Jeanette Slover, of the first degree of Michael, Jr.'s former wife, Karen Slover. Jr., and Michael, Sr., were also convicted concealment of a homicidal death. In 2002, the trial court sentenced all three defendants to years' Michael, Jr., and Michael, Sr., also five-year prison sentences for their convictions of concealment of a homicidal death. July 2002, defendants filed motions to reduce their sentences, which the court denied. Thereafter, defendants filed a notice of appeal (No. 4-02-0587). In September the State a motion, naming all three defense exhibits for scientific The indicated three defense exhibits admitted during defendants' trial contained some animal hairs unsuitable for identification, along with some possible cat hairs, that were taken by police from a 1992 Bonneville. Further, Mary Slover, the daughter of Sr., and Jeanette, and the sister of Michael, Jr., formerly lived at a house in that a forensic scientist identified to have cat and dog hairs following an examination. The State indicated a petition had been filed under the Juvenile Court Act of 1987 (705 ILCS (West 2000)) in Macon County case No. 00-JA-12, alleging the biological son of Michael, and the adopted son of Mary was a neglected and abused The State had filed an expedited for termination of parental rights. State indicated the doctor who performed canine deoxyribonucleic acid (DNA) testing in the defendants' murder case was willing to perform feline DNA testing of the State's enumerated exhibits and cat hair from Mary's former residence. The State submitted release of the three defense exhibits for feline would advance the interests of in the pending juvenile of [No.] 00-JA-12." In September 2002, the court held hearing on the State's motion. Defendants' counsel argued the trial court no jurisdiction as their appeals had been filed. If the court did have jurisdiction, defendants argued, the wanted to the cat hair to destructive testing, which would be prejudicial to defendants if the appellate court ordered further proceedings in the trial court. The trial court found it had jurisdiction to rule on the matter, stating it had authority to orders with regard to property in its custody. The court also found the State presented good cause for destructive of the evidence. As a condition of the testing, the court required a photograph taken to the exhibits. Defense counsel requested the clerk directed to file a notice of appeal. The trial court found its order was governed by the appeal rules pursuant to Supreme Rule 612 (177 Ill.2d R. In its written order pursuant Supreme Court Rule 304(a) (155 Ill.2d R. the court concluded no just reason for delaying appeal. Per defense counsel's trial court stayed order until further by the court. This appeal followed. In 2002, Jeanette filed a motion to join in the interlocutory appeal. She later filed a notice of in November 2003, court allowed Jeanette's motion for leave file a late notice of appeal. II. ANALYSIS A. Appellate Court Jurisdiction Before we determine the trial had jurisdiction to consider the State's we must determine whether this court has jurisdiction to consider defendants' appeal. In their appellate defendants contend this court has jurisdiction pursuant to Supreme Court Rules 603 and 606 pertaining criminal appeals (134 Ill.2d R. 603; Ill.2d R. 606). The argues we must dismiss defendants' appeal. The trial court issued an order pursuant to Supreme Court Rule 304(a), finding just reason for appeal of its order granting the State's motion to release defense exhibits for scientific testing. Supreme Court Rule 304(a) provides, in part, as follows: "If multiple parties or multiple claims for relief are involved in an action, appeal may be taken from a judgment as to more but fewer than 571 all of the parties or claims only if the trial court has made an express written finding that there is just reason for delaying either enforcement or appeal or both. * * * In the absence of such a finding, any judgment that adjudicates than all the claims or the rights and of fewer than all the parties is not or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities all the 155 Ill.2d R. 304(a). When the criminal appeal rules govern, Rule does not apply. In D.D., 337 Ill.App.3d 998, 1008, 272 Ill.Dec. 706, 788 N.E.2d 10, (2002). However, an appellate court's jurisdiction to consider an appeal "does not derive solely from a party's invocation of the correct supreme court In re O.H., 329 Ill.App.3d 254, 257, 263 Ill.Dec. 768 N.E.2d 799, 801 (2002). Moreover, the trial court indicated civil appeal rules applied after looking for guidance under Court Rule 612, setting forth the procedural matters that are governed civil appeal rules. The court noted civil appeal rules applied to the removal of from the reviewing court. Supreme Court Rule 372 (155 R. 372), a civil applicable to criminal appeals, focuses on the removal the record from the appellate court, not the removal of exhibits from record on appeal for scientific testing. However, the similarity between the procedural of removing records from the reviewing court and allowing testing of an exhibit that part of the record on is to enable the case to fall within the civil appeal rules. the order allowing destructive testing of the exhibits created a final judgment. As this amounted to a procedural matter, along with the trial court's written order pursuant to Rule 304(a), conclude this case is properly before us. B. Trial Court Jurisdiction Generally, "[t]he filing of a notice of transfers jurisdiction to the appellate court instanter and simultaneously divests the trial of jurisdiction to enter additional of substance in case." People v. Kolzow, 332 457, 459, 265 Ill.Dec. 532, 772 N.E.2d 903, 904 (2002). trial may then enter orders changing or a judgment or scope interfering with the of the judgment. Kolzow, 332 Ill. App.3d at 459, 265 Ill.Dec. 532, 772 N.E.2d at 905. The trial court retain jurisdiction to determine matters that are collateral or incidental to the judgment being appealed. Brownlow v. Richards, 328 Ill. App.3d 833, 837, 263 Ill.Dec. 31, 767 N.E.2d 482, 485 (2002). In this case, trial court's order did not judgment or interfere with the review of that judgment. Further, the court's order did not dispose of the issues defendants had invoked our jurisdiction to review their appeal. Thus, defendants' criminal appeal did not automatically divest trial court of jurisdiction in regard to the State's motion. Defendants argue trial court did not order the scientific testing of defense exhibits. We disagree. contend the physical evidence, such as cat hair, part of the record on appeal based on Supreme Court Rule 608 (177 Ill.2d 608), and thus the not make substantive	791 N.e.2d 568 (2003) 339 iLL. apP.3d 1086 274 Ill.dEC. 476 ThE PEOPlE of tHe staTe of iLliNoIs, pLaINTiFF-aPpELlee, v. MIcHAeL SlOVeR, jr., mIcHAel slOvEr, SR., aND JEANEtte slover, DefeNdAnTs-appELLANTs. No. 4-02-0892. AppELlaTe cOUrt of iLlinOIS, FOuRTh distRict. jUNE 6, 2003. 569 dAnIlE D. YUhAS AND joHn M. McCARTHY, bOtH OF StatE APpELlATe dEfeNdEr's oFFiCE, OF springFiElD, FoR appeLLAnts. SCOTT rUETEr, staTe'S atTORney, oF decATUr (NOrBeRt j. GOeTteN, roBErT j. BIdERman, AnD dENise m. AmbROsE, all oF StatE'S aTTorNeYs appellaTE prosECuToR's oFFice Of cOUnsEL), FOr ThE peOPLE. JUsTIcE TuRNER dEliveRed THE OpiNion Of the COurt: iN MAY 2002, A jUrY convIcTeD DEFenDanTS, miCHAel SloVEr, JR., miChaEl slOVER, Sr., ANd jEaNetTE sLoVer, Of tHE fIRSt DegrEE murDER oF kAren SlOver. miCHAel, Jr., ANd MicHAEl, Sr., WeRe AlSo CONVICteD OF COnCEAlMeNT Of A homiCidal deatH. ALl ThreE dEFEnDAnts WerE senteNcEd To PrISoN and FILED a NOtICE of APPeAL WiTH this cOUrt. IN SEpteMBER 2002, tHE stAtE fILeD a mOtioN TO rElEASe DEFEnse EXhiBITs for scIENTIfIC tESTinG. tHe TRIAl cOUrT GRaNTed tHE MotIOn anD FOunD nO JuST REaSOn FOR dElayIng THe APpeal. on apPEal, DeFeNDAnTs arGue ThE TrIAl courT Had no juRisdICTIon To ordEr TestInG OF DeFensE exhIbITs BeCAusE thOSe exhiBITS aRE PArt Of tHE reCoRd on Appeal. the stAte arguEs defenDanTs' APpeAl mUst BE DIsmISsED bECAuse THE triAl CoURt'S OrdEr diD Not coNSTituTE a fINaL OrDer oR JudGMent fRoM wHICh DEfEndAnts cOUld ApPEal. we AfFiRM. i. bACKgrOund iN mAy 2002, A juRy cOnViCTEd DeFENDAnTs mIChaeL sloVer, Jr., anD hIs pARenTS, MICHael SLoVEr, sr., aND jEAnETtE slover, oF tHe fiRST DEgrEe muRDEr of MicHAEL, JR.'S fORmER wiFE, kaREn slOVer. MiCHAEL, jR., and MIcHAEl, SR., WeRE AlSO cOnVIcted of conCeALmenT OF a hOMiciDaL DEatH. In JUnE 2002, the TriaL cOURT SenTEnCEd ALL Three defendants to 60 yeArs' IMpRIsoNmeNt. miChaEL, jR., and mIchAel, sr., aLSo rECeIved Five-YeAr pRIson sentenCes for theIr convIcTIONS Of CONCEAlmEnT OF a hOmiCiDAL deAth. IN JuLY 2002, DefENDANtS FIled MOTIOns tO REdUCe theIr SenTeNcES, wHiCH tHE triAl Court dENIeD. TheREAFtER, dEfeNdANts FIlED A Notice OF appeaL (No. 4-02-0587). iN septEMBeR 2002, THE staTe fILED A MOTIon, nAMiNG AlL THrEe dEFendAnTs, tO 570 RELeASe defenSe EXHibiTs fOR sCIenTIFiC teStiNG. THE MotIOn InDicaTed three DefeNse ExhIbits aDMIttEd DurINg DEfendaNTs' TriAL CoNtAINED SoME aNImal HAIrS uNSuITABle FOr IDeNTifiCATION, ALONg wITH SoMe PoSsiBLE CAT HAiRs, THAt wErE tAKen By PoLIce frOm a 1992 boNNEVIlLe. fuRThER, mARy slOvER, tHE daugHter OF MiCHAEl, sr., ANd JEaneTtE, aNd tHE sisTEr of miChAeL, Jr., fORmeRly LiVeD At a hoUSe in spRInGfIeLd thAt A FOReNSic sCiEntIst iDeNtIfIEd to have CaT aNd doG HaiRS FolLOwiNg aN inVestigatoRy EXAMInaTIOn. ThE sTATE iNDicAtEd a pEtition had BeEN FileD uNdEr thE jUVenILE COurt Act OF 1987 (705 iLcS 405/1-1 THRoUgh 7-1 (WEST 2000)) In mACon couNty cASe NO. 00-ja-12, ALleGInG thE BiOLoGiCaL sOn of mIchaeL, Jr., anD the ADOpTED soN of marY Was a nEGLecteD ANd aBuSeD MInoR. The StatE haD FiLEd An ExPEDiteD petITiON FOr termiNatIon of Parental rIGhtS. THE state INdicAted tHE dOcTOR wHo pERfORmED canINE dEoxYRIBONuCLeIC aCId (DNA) tESTING in thE defenDanTs' MURDER CaSE waS WILlIng TO PeRFoRm FeLiNE DNA tEstinG of tHe StATE's enUmeRated ExHIBiTs anD THE Cat haiR FROm mary's FOrmEr REsiDeNcE. thE staTe SUBMITteD "The reLeaSe Of THe THREe deFense eXHIBits For FelIne DNA TEStINg wouLD advANCe thE InTeResTS oF JUstIce iN the PENDING juVenIlE cASE oF [NO.] 00-JA-12." In sEPteMBer 2002, THE TRial CoUrt hELD A hEARiNg On tHe StAte's MoTIon. dEFeNDantS' counsEl ARgued the tRiaL COurt hAD No JurIsdIcTIon AS theIr APPealS HAD bEEn FILEd. iF The CouRT Did haVE JuRISDIcTIoN, DeFENDAnTS ARGUeD, ThE StAte wANtEd To SUbjEct thE Cat hAiR TO dESTructIVe TEsTING, WHiCh WOulD bE PrejUDiCIaL tO DefEndAntS iF The ApPeLlATE CoURt ORDERed FURtHeR PrOcEeDinGS IN The tRial COUrT. tHE TRiAl COurT founD it HAD jURISdIcTion to ruLE On THe MATTer, staTiNg iT HAd AUThOrITy to enTER ORdERS wiTh REGARd to pRoPERTy iN Its cUStody. ThE cOURT alSo found tHe StAtE prEsentED gooD cauSE FOR DEsTructiVe tesTING oF the evIdeNcE. aS a coNDiTIOn OF THE tesTING, tHE COURt REQuiRED a pHOtOgRaph tAKeN To IdENTIFY THE eXhiBiTS. DEfense coUnseL RequeSTed thE clERk Be diRectED TO FIle A nOticE oF apPEal. tHE TrIAL coUrT foUnD ItS oRdEr was goVeRNED BY the cIvIL aPPEAL rUlEs PuRsUanT to SUpREME CourT ruLE 612 (177 IlL.2d R. 612). IN Its wRItteN ORdEr purSuanT TO SuPReME courT rule 304(a) (155 ilL.2d R. 304(A)), The cOUrt cOnCLudED THeRe was No jusT reasON FoR DElaYiNG thE apPEal. Per DEFEnsE COuNSEL'S REquEsT, the TRIAl COUrT StaYed ITs ORdER UNTil further oRdEr by tHe cOuRt. tHiS appEaL FOlloWeD. in oCTObeR 2002, jeanETTe fIleD a MoTion to jOIN in the INTerlOcUTorY ApPeaL. shE laTEr FIlED A noTICe Of AppeAL IN novEmbeR 2002. In FEBrUaRY 2003, tHiS court allOWED jeaNETTe'S MOtIon fOr lEAVe to FILe a laTE NOtIce OF aPpEaL. iI. analysIs A. apPEllAte COurT jURisDicTION bEFOre We DeteRMiNE wHEtheR The TrIaL cOUrt had JuRiSdIcTioN to cONsidER ThE STATe'S MotIoN, WE MUST dEtERMIne wHEThER tHiS COurT Has jURISdicTIon tO cOnSIder dEFEnDants' ApPeaL. iN tHEIR APPEllaTE bRIef, DefENDAnTs ConTend This COUrt HAs jUrISdiCtioN PurSuAnT tO SUPREMe cOUrt RulEs 603 ANd 606 peRTAinIng To CRImiNaL AppEaLs (134 IlL.2D R. 603; 188 ILL.2d R. 606). thE staTE ArguEs wE MUsT DIsMiss DeFendANTS' apPeAL. ThE TriAl coURt ISSUEd An ORDEr PUrsUaNt TO SUPreMe COurT RULE 304(A), fINdiNg no JuSt REasoN for dELAYiNg aPPEAl oF itS OrDeR GRantiNG ThE StatE's MOTIon tO relEaSe dEFeNse eXHIBitS FOR ScIeNtific TeSTinG. sUpreMe coUrT rUlE 304(a) Provides, in PaRt, AS FoLloWs: "iF MuLtIpLE pArTieS Or MuLtiPLe cLAimS for ReLIEf ARe INvoLVEd In aN acTIon, An apPeAl MAy Be TAkeN FROM A FinAL JUdgMEnt As to ONe OR morE BUT feWer tHAn 571 All of ThE parties OR clAIMs oNLy If the triAL CoUrt HAs MadE aN exPrEsS wRIttEn FinDing thaT thERe Is nO jUST reAson for DeLayING eITher eNforceMEnT or apPeaL oR bOth. * * in thE ABSence Of Such A finDInG, aNy juDGmENT ThAT AdJuDiCAtEs FEWEr tHAn ALl the ClaimS or tHE RIgHtS AND lIABiliTieS OF fEWeR tHaN ALl The PARtIes Is nOT enfOrCEAble oR aPPeAlAble And is subject To reViSioN aT ANy TIme bEforE THE ENTRY OF A JudGmENT ADjUdIcAtING ALL tHE clAims, rIgHts, ANd LiAbIlitieS oF AlL THe pARties." 155 ilL.2d r. 304(a). When tHe CRIMInaL APPeAL RulEs goVERn, RUlE 304(a) Does NOT aPpLy. IN Re d.D., 337 iLL.APp.3d 998, 1008, 272 iLL.Dec. 706, 788 n.E.2d 10, 17 (2002). hOWEVER, an APPELlAte COUrt's JurIsDicTiON To CoNSIDER an apPeaL "doEs Not DeRivE SoleLy FROM A pARTY'S iNvOCATIoN of The CORrecT sUpRemE cOuRT RULe." in re O.H., 329 IlL.aPp.3D 254, 257, 263 ILL.DEC. 718, 768 N.e.2d 799, 801 (2002). MOREOveR, tHE tRiAl cOURT IndiCAtEd The CiVIl aPPEAl ruLES ApplIEd aFtEr looKiNg FoR GuIDAnce UNDer sUPreME cOuRT rule 612, SETtIng ForTH thE PrOceDuraL MAtTErs THat ArE GoVernED By cIvIl AppEal ruLes. The court noTeD cIvil AppeaL RulES AppLIed tO tHE remoVal oF RecORDS FroM The reviewIng couRT. SuPrEme cOuRT ruLe 372 (155 iLl.2D R. 372), A ciVil apPEaL rUlE AppLicaBLe to cRimInaL aPPeALs, foCUseS On The reMOVAl OF ThE REcorD FrOM THE ApPElLaTE CourT, NoT the remOvAL oF EXHibITs FrOM tHE rEcoRd On aPpeAl for ScIeNTIFIc tEstiNg. HOwever, THE SiMIlarity bEtwEeN the PrOceDURAl maTTERs Of rEMoViNg recORDS frOM THe revIEWING COURT aNd alLOwIng TestiNg OF An EXHiBIT ThAT iS pARt oF the ReCorD On APpeal IS eNOUgh TO enablE THE caSE To FALL WIthIN ThE CiviL APPeal rUleS. heRE, tHe ordER allOwinG DeStrUCtIVE TeStINg oF THE exhIbITS CReaTeD a FinAL jUdGMeNT. AS ThIS AmouNtEd To a pROceDurAl MAttEr, aLOng wiTh thE tRial COURT's WRittEN oRder PUrSuanT tO RULe 304(A), We COncLuDe THiS Case iS pROpERLy befoRE uS. b. tRial couRT jurISdicTiOn GeNeralLY, "[t]he FilIng oF A nOTicE OF AppeaL tRANSFers jURIsDICtION TO thE APPellate couRT instanter And sIMuLTaneOUsly DIVests thE TrIal COurt Of jurISdicTioN TO enTeR ADDItionAl ORDERS oF SubsTanCe iN a CASE." pEoplE v. kolZOW, 332 IlL.aPp.3d 457, 459, 265 iLL.deC. 532, 772 n.e.2d 903, 904 (2002). THe tRiAl CouRT mAY nOt tHeN eNter OrdERS ChaNgiNG OR mOdifYINg a jUdgMEnT or Its sCopE or INtERFERInG WItH ThE REvIew Of tHe JUdGMENt. KolZOW, 332 Ill. app.3d aT 459, 265 IlL.DeC. 532, 772 N.E.2d AT 905. THe TRIal couRt DoeS retaIn jUriSDiCtion to DeTERmInE mAtterS ThAT are coLLAteraL OR incIdenTAl To thE JUdGMent BeiNG APPEALed. bRoWNLOW V. richARds, 328 iLl. aPP.3d 833, 837, 263 Ill.Dec. 31, 767 N.E.2D 482, 485 (2002). in this cASe, THe TriAL cOuRT'S oRDER Did NOt ModIfY tHe jUDgmENT or InTERFerE wITH thE rEvIEw of tHAT jUdgMENT. FurtHer, THe coURt'S OrDEr dId NoT diSPosE OF tHe ISSueS deFendANTS HaD invoked OuR juriSDIctIon TO reViEw in theIR MurdER ApPEAL. thUS, DefeNdAnTs' crimInAL appEaL Did not autoMATICally diveSt THE TrIAl COURt Of jURisDictION In REGaRd TO the STAte's motiOn. DefeNDAntS ArguE the TrIal COuRT diD NoT hAVe jURisdIcTiON TO OrdeR thE SCiEntiFiC TeStIng oF dEFENse exHiBits. we DIsAGrEe. defeNdAnTs cONTENd thE PhySiCAl eVIDENce, sUCh AS THE Cat hAIR, IS PArt OF THE RECoRd On appEAl bASEd oN sUpReMe COuRt RULE 608 (177 ILL.2d R. 608), anD THUs ThE tRIal CoURt couLd noT mAKe SUbSTAnTIVE RuLiNGS On	791 N.E.2d 568 (2003) 339 Ill. App.3d1086274Ill.Dec. 476The PEOPLEof the State of Illinois, Plaintiff-Appellee, v. Michael SLOVER, Jr., Michael Slover, Sr., and Jeanette Slover, Defendants-Appellants. No. 4-02-0892. Appellate Court of Illinois,Fourth District. June 6, 2003. 569 Danile D. Yuhas and John M. McCarthy, both of State Appellate Defender's Office, of Springfield, for appellants. ScottRueter, State's Attorney, of Decatur (Norbert J. Goetten, RobertJ. Biderman, and Denise M. Ambrose, all of State'sAttorneysAppellate Prosecutor'sOffice of counsel), for the People. Justice TURNER delivered the opinion of the court: In May 2002, a jury convicted defendants, MichaelSlover, Jr., Michael Slover, Sr., and Jeanette Slover, of the first degree murderof KarenSlover. Michael, Jr., and Michael, Sr., were also convicted of concealmentof a homicidal death. All three defendantswere sentenced to prison and filed a noticeof appeal with this court. In September 2002, theState filed a motion to release defense exhibits forscientific testing. Thetrial court granted the motion and found no just reasonfor delaying the appeal.On appeal, defendants argue the trialcourt hadno jurisdiction to order testing of defense exhibits because those exhibits arepart of the record on appeal. The State argues defendants' appeal must be dismissed because the trial court'sorder did not constitutea final order or judgment from which defendants could appeal. We affirm. I. BACKGROUND In May 2002, a jury convicted defendants Michael Slover, Jr., and his parents, Michael Slover, Sr., and JeanetteSlover, of the firstdegree murder of Michael, Jr.'s former wife, Karen Slover. Michael, Jr., and Michael, Sr., were alsoconvicted of concealment of ahomicidal death. InJune 2002,the trial court sentenced all three defendants to 60years' imprisonment. Michael, Jr., andMichael, Sr., also received five-year prison sentences for their convictions of concealmentof a homicidal death.In July 2002, defendants filed motions toreduce their sentences, whichthe trialcourt denied. Thereafter, defendants filed a notice of appeal (No. 4-02-0587). In September2002,the State filed a motion, naming all three defendants,to 570 release defense exhibits for scientific testing. The motion indicated three defense exhibits admitted during defendants' trial containedsome animal hairs unsuitablefor identification,alongwith some possible cat hairs, that were taken by police from a 1992Bonneville. Further, Mary Slover, thedaughter of Michael, Sr., and Jeanette, andthe sister of Michael, Jr., formerly lived at a housein Springfield that a forensic scientistidentified to have cat and dog hairs following an investigatory examination. TheState indicated a petition had been filed under the Juvenile Court Act of1987(705 ILCS 405/1-1 through7-1 (West 2000)) in Macon Countycase No. 00-JA-12,alleging the biological son of Michael, Jr., and the adopted son of Mary was a neglected andabused minor. The State had filed an expedited petition for termination of parental rights. The State indicated the doctor whoperformed canine deoxyribonucleic acid (DNA) testing in the defendants' murder casewas willingto perform feline DNA testing of the State'senumerated exhibits andthe cat hair fromMary's former residence. The State submitted "the release of thethree defenseexhibits forfeline DNA testing would advance the interests of justice in the pending juvenile case of[No.] 00-JA-12." In September 2002, the trial court held a hearing on the State's motion. Defendants' counsel argued the trial court hadno jurisdiction as their appeals had been filed. If the court did have jurisdiction,defendants argued, the State wanted to subject the cat hair todestructive testing, which would be prejudicial to defendants if the appellatecourt ordered furtherproceedings in the trial court. The trial court foundit hadjurisdiction to rule on the matter, stating it had authority to enterorders with regard to propertyin its custody. The court also found the State presented good cause for destructive testingofthe evidence.As a condition ofthe testing, the courtrequired a photograph taken toidentifythe exhibits. Defense counsel requestedtheclerkbe directed to file a notice of appeal. The trial court found its order was governed by the civil appeal rules pursuant to Supreme Court Rule 612 (177 Ill.2d R. 612).In its writtenorder pursuant to Supreme Court Rule304(a) (155 Ill.2d R.304(a)), thecourt concluded therewas no just reason for delaying the appeal. Perdefense counsel's request, the trial court stayed its order until further order by the court.This appeal followed. In October 2002, Jeanette filedamotion to join in the interlocutory appeal. She later filed anotice of appeal in November 2002. In February 2003, this court allowed Jeanette's motion forleave to file alate notice of appeal. II.ANALYSISA. Appellate Court Jurisdiction Before we determine whether the trial courthad jurisdiction to consider the State's motion, wemust determine whether this court hasjurisdiction to considerdefendants' appeal. In their appellate brief,defendants contend this court has jurisdiction pursuant to Supreme Court Rules 603 and 606 pertaining to criminal appeals (134 Ill.2d R. 603; 188Ill.2d R. 606). The State argues we must dismissdefendants' appeal. The trialcourt issued an order pursuant to Supreme Court Rule 304(a),finding no just reason for delaying appealof its order granting the State'smotion torelease defenseexhibits for scientific testing.Supreme Court Rule 304(a) provides, in part, as follows: "If multiple parties ormultiple claims for relief are involved inanaction, an appeal may be taken from a final judgment as to one or more butfewer than 571 all ofthe parties or claimsonly if the trial court has made an express written finding thatthereis no just reason for delaying either enforcementor appeal or both. * * In the absence of suchafinding, any judgment that adjudicatesfewer than all the claims or the rights and liabilities of fewer than all the parties isnot enforceable or appealable and is subject to revisionat any time before the entryof a judgment adjudicating all the claims, rights, and liabilities of all the parties." 155Ill.2d R.304(a). When the criminal appeal rules govern, Rule 304(a) does not apply.In re D.D., 337 Ill.App.3d 998, 1008, 272 Ill.Dec. 706, 788 N.E.2d 10, 17 (2002). However, an appellate court's jurisdiction to consider an appeal "does not derive solely froma party's invocation of thecorrect supreme court rule." In re O.H., 329 Ill.App.3d 254, 257, 263 Ill.Dec. 718, 768 N.E.2d 799, 801 (2002). Moreover, the trialcourt indicated the civil appeal rules applied after lookingfor guidance under SupremeCourt Rule 612, setting forth the procedural matters that are governed by civil appeal rules. The court noted civil appeal rules applied tothe removal of recordsfrom the reviewing court. SupremeCourt Rule 372 (155 Ill.2d R. 372), a civilappealruleapplicable to criminal appeals, focuses on theremoval of the record from the appellate court, not the removal of exhibits fromthe record on appeal for scientifictesting. However,thesimilarity between the procedural matters ofremoving records from the reviewing court andallowing testing ofan exhibit that is part of the record on appeal is enough to enable thecase to fall within the civil appeal rules. Here,the order allowing destructive testingof the exhibits created a final judgment.As this amounted to a procedural matter, along with the trial court's written order pursuant to Rule 304(a), we conclude this case is properly before us. B. Trial CourtJurisdiction Generally, "[t]hefiling of a notice of appeal transfersjurisdiction to the appellate court instanter andsimultaneouslydivests the trial court of jurisdiction to enter additional orders of substance in a case." People v. Kolzow, 332 Ill.App.3d 457, 459,265 Ill.Dec.532, 772 N.E.2d903, 904 (2002). The trial court may not then enter orders changing or modifying a judgmentor its scope or interfering with the review of the judgment. Kolzow, 332 Ill. App.3d at459, 265 Ill.Dec. 532,772 N.E.2d at 905.The trial court does retain jurisdiction to determine mattersthat are collateral or incidental to the judgment being appealed. Brownlow v. Richards, 328 Ill. App.3d 833, 837, 263 Ill.Dec. 31, 767 N.E.2d 482, 485 (2002). Inthis case, the trial court's order did not modify the judgment or interfere with the review of that judgment. Further, the court'sorder did not dispose of theissues defendantshad invoked our jurisdiction to review in their murder appeal. Thus, defendants'criminal appealdid not automatically divest the trial court of jurisdiction in regardto the State's motion. Defendants argue thetrial court did not have jurisdiction to order thescientific testing of defenseexhibits. We disagree. Defendantscontendthe physical evidence,such as the cathair, is part of the record on appeal based on Supreme Court Rule608 (177 Ill.2d R. 608),and thus the trial court could not make substantive rulings on	_791_ N.E.2d 568 (2003) 339 Ill. _App.3d_ 1086 274 _Ill.Dec._ 476 The PEOPLE _of_ _the_ State of _Illinois,_ _Plaintiff-Appellee,_ _v._ Michael _SLOVER,_ Jr., _Michael_ Slover, _Sr.,_ _and_ Jeanette Slover, _Defendants-Appellants._ _No._ _4-02-0892._ Appellate Court _of_ _Illinois,_ Fourth District. June 6, 2003. 569 Danile D. _Yuhas_ and _John_ M. McCarthy, _both_ of State _Appellate_ Defender's Office, of Springfield, _for_ _appellants._ Scott Rueter, State's Attorney, of Decatur (Norbert J. _Goetten,_ Robert J. Biderman, and Denise M. Ambrose, all of _State's_ Attorneys Appellate Prosecutor's Office of _counsel),_ for the People. Justice TURNER delivered the opinion of the _court:_ In _May_ 2002, a jury _convicted_ defendants, Michael _Slover,_ Jr., Michael Slover, _Sr.,_ and Jeanette Slover, of the _first_ degree murder of Karen _Slover._ Michael, Jr., and Michael, Sr., _were_ also convicted of concealment of a _homicidal_ _death._ All three defendants were sentenced to _prison_ _and_ filed a notice of appeal with this court. In September _2002,_ the State filed a _motion_ to _release_ _defense_ exhibits for scientific testing. _The_ trial court _granted_ the motion and found no just reason for delaying the appeal. On appeal, defendants argue the trial court had _no_ jurisdiction _to_ order testing _of_ defense exhibits because those exhibits are part of the _record_ on appeal. The _State_ _argues_ _defendants'_ appeal must be dismissed because the trial court's _order_ did not constitute a final order or _judgment_ from _which_ defendants could _appeal._ We affirm. I. BACKGROUND In May 2002, a _jury_ convicted defendants Michael Slover, Jr., and his parents, Michael Slover, Sr., _and_ Jeanette Slover, of the _first_ _degree_ murder of Michael, Jr.'s _former_ wife, _Karen_ Slover. Michael, _Jr.,_ and Michael, Sr., were also convicted of concealment _of_ a homicidal death. In June 2002, the trial court sentenced all three defendants to 60 years' imprisonment. _Michael,_ Jr., _and_ Michael, Sr., also _received_ five-year prison sentences for their convictions of concealment of a homicidal death. In July 2002, defendants filed motions to reduce their _sentences,_ which the _trial_ court denied. _Thereafter,_ defendants filed a notice _of_ _appeal_ (No. _4-02-0587)._ In _September_ 2002, the State filed a motion, naming _all_ three defendants, to 570 _release_ _defense_ exhibits for _scientific_ testing. _The_ motion indicated three defense _exhibits_ admitted _during_ defendants' trial contained some _animal_ hairs _unsuitable_ for _identification,_ along with some possible cat hairs, that were taken by police from a 1992 Bonneville. Further, Mary Slover, _the_ daughter of Michael, _Sr.,_ and _Jeanette,_ and the _sister_ of _Michael,_ Jr., formerly lived at a _house_ in Springfield that a _forensic_ scientist identified to _have_ cat and dog hairs _following_ an investigatory examination. _The_ State _indicated_ a petition had been filed under the Juvenile Court Act _of_ 1987 _(705_ ILCS 405/1-1 _through_ 7-1 (West 2000)) in Macon _County_ case No. 00-JA-12, alleging the biological son of Michael, Jr., and the _adopted_ son _of_ Mary was a neglected and abused minor. The State had filed _an_ expedited petition _for_ termination of parental rights. The State _indicated_ _the_ _doctor_ who performed canine deoxyribonucleic _acid_ (DNA) testing in the defendants' murder case was willing to perform feline _DNA_ testing of the State's enumerated exhibits and _the_ cat _hair_ from Mary's _former_ _residence._ The State submitted "the release of the three defense exhibits for _feline_ DNA testing would advance the _interests_ of _justice_ _in_ the pending juvenile case _of_ [No.] 00-JA-12." In September _2002,_ the trial court held a hearing on the State's motion. Defendants' counsel argued the _trial_ court had no jurisdiction as their appeals had been filed. If the court did have jurisdiction, defendants argued, the State wanted to subject the cat hair to destructive testing, which would be prejudicial to defendants if the appellate _court_ _ordered_ further _proceedings_ in the trial court. _The_ trial court found it had _jurisdiction_ to _rule_ on _the_ matter, stating it had authority to enter _orders_ with regard to property in _its_ custody. The court also _found_ the State presented good cause for destructive testing of the evidence. As a _condition_ of _the_ _testing,_ the court required a _photograph_ taken to identify the exhibits. _Defense_ counsel _requested_ the clerk _be_ _directed_ _to_ file a notice of _appeal._ _The_ trial court found its order was governed by the civil appeal rules pursuant to _Supreme_ Court Rule 612 _(177_ Ill.2d R. 612). _In_ its written _order_ pursuant to _Supreme_ Court Rule 304(a) _(155_ _Ill.2d_ _R._ 304(a)), the _court_ concluded there was no just reason _for_ delaying _the_ appeal. Per defense counsel's request, the trial court _stayed_ its order _until_ _further_ order by the court. This appeal followed. In October 2002, Jeanette filed a motion _to_ join in the interlocutory appeal. She _later_ _filed_ a _notice_ of appeal in November _2002._ In February 2003, this _court_ _allowed_ Jeanette's motion for leave to file a late notice of appeal. II. _ANALYSIS_ A. Appellate _Court_ Jurisdiction Before we determine whether the _trial_ court had jurisdiction to consider _the_ State's motion, we must determine _whether_ this court has jurisdiction _to_ consider _defendants'_ appeal. In their appellate brief, _defendants_ contend this court has jurisdiction pursuant _to_ _Supreme_ Court Rules 603 and 606 pertaining _to_ _criminal_ appeals (134 Ill.2d R. 603; _188_ Ill.2d R. 606). _The_ State argues we must dismiss defendants' _appeal._ The trial court issued _an_ order _pursuant_ _to_ _Supreme_ Court _Rule_ 304(a), finding _no_ _just_ reason for delaying appeal _of_ its order _granting_ the State's motion to release _defense_ exhibits for scientific testing. Supreme Court Rule 304(a) _provides,_ in _part,_ _as_ follows: "If multiple _parties_ or multiple claims for relief are involved in an action, _an_ appeal _may_ be taken from a final judgment as to _one_ or _more_ but _fewer_ _than_ 571 _all_ of _the_ parties or claims only if _the_ trial court _has_ made an express _written_ finding _that_ there is no just reason _for_ _delaying_ _either_ _enforcement_ or appeal or both. * * In _the_ absence _of_ _such_ _a_ finding, _any_ judgment that adjudicates _fewer_ than all the _claims_ _or_ the rights _and_ liabilities of _fewer_ than _all_ _the_ parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of _all_ the parties." _155_ Ill.2d R. _304(a)._ _When_ the _criminal_ appeal rules govern, Rule 304(a) _does_ not apply. In re D.D., 337 _Ill.App.3d_ 998, 1008, 272 Ill.Dec. 706, 788 N.E.2d 10, 17 (2002). _However,_ an appellate court's jurisdiction to _consider_ _an_ appeal "does not _derive_ solely from _a_ party's invocation of the correct supreme _court_ rule." In re O.H., 329 Ill.App.3d 254, 257, 263 Ill.Dec. 718, 768 N.E.2d 799, 801 _(2002)._ Moreover, the trial court indicated the _civil_ appeal _rules_ applied after looking for guidance under Supreme Court Rule 612, setting _forth_ the _procedural_ _matters_ that are _governed_ by civil appeal rules. The _court_ noted civil appeal rules applied to the removal of _records_ from _the_ _reviewing_ _court._ Supreme _Court_ Rule 372 (155 Ill.2d R. 372), a civil appeal _rule_ applicable to criminal _appeals,_ focuses on _the_ removal of the record from the _appellate_ court, not the removal of exhibits from the _record_ on _appeal_ for scientific testing. _However,_ the _similarity_ between the _procedural_ matters of _removing_ records from the reviewing _court_ and allowing testing _of_ _an_ exhibit that is part of the record on _appeal_ is enough _to_ _enable_ the case to fall within the civil _appeal_ rules. Here, _the_ order allowing destructive testing of the exhibits created a _final_ _judgment._ As _this_ amounted _to_ a procedural matter, along _with_ _the_ trial court's _written_ order pursuant to Rule 304(a), we conclude this _case_ is properly before _us._ B. Trial Court Jurisdiction Generally, "[t]he _filing_ of a notice _of_ appeal _transfers_ jurisdiction _to_ _the_ appellate court instanter and simultaneously _divests_ _the_ trial court _of_ jurisdiction to _enter_ additional _orders_ of _substance_ in a case." People v. Kolzow, 332 Ill.App.3d 457, 459, 265 Ill.Dec. 532, 772 N.E.2d _903,_ 904 (2002). The trial court may not then enter orders changing _or_ _modifying_ a judgment or its scope or interfering with the _review_ _of_ the judgment. Kolzow, 332 Ill. _App.3d_ at 459, 265 Ill.Dec. 532, 772 N.E.2d _at_ 905. The trial _court_ does retain _jurisdiction_ to determine matters that are collateral _or_ incidental to _the_ judgment _being_ appealed. Brownlow v. Richards, 328 _Ill._ App.3d 833, 837, 263 Ill.Dec. _31,_ 767 N.E.2d 482, 485 _(2002)._ In _this_ _case,_ the trial _court's_ order did not _modify_ _the_ judgment _or_ interfere with the review _of_ that judgment. _Further,_ the court's order did _not_ dispose of _the_ issues _defendants_ had invoked our _jurisdiction_ to review _in_ their murder appeal. Thus, defendants' criminal appeal did not _automatically_ divest the trial court _of_ jurisdiction _in_ regard to the State's motion. Defendants argue the _trial_ court did not _have_ jurisdiction _to_ order the scientific testing _of_ defense exhibits. We disagree. Defendants contend the physical evidence, such as the cat hair, is part _of_ _the_ record _on_ appeal based on Supreme Court Rule _608_ (177 Ill.2d R. 608), and thus the trial court could not make substantive rulings on
647 F.Supp. 1035 (1986) James MESSER, Jr., Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent. Civ. A. No. C86-173R. United States District Court, N.D. Georgia, Rome Division. July 7, 1986. 1036 Howard J. Manchel, Atlanta, Ga., for appellant. Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent. ORDER ROBERT H. HALL, District Judge. James Messer, Jr., who is scheduled to be executed before July 9, 1986, petitions this court for a writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. This court has stayed petitioner's execution pending a full review of the issues raised by the petition. For the reasons set forth herein, the court DENIES prisoner's petition, and accordingly lifts the stay of execution. FACTS Petitioner, James E. Messer, Jr., was indicted by the grand jury of Polk County, Georgia, during the November Term, 1979, for kidnapping with bodily injury and for the murder of Rhonda Tanner. A special plea of insanity was filed on behalf of the petitioner. After two subsequent state sponsored psychiatric examinations established that petitioner was mentally competent to stand trial, the special plea of insanity was withdrawn. At his trial petitioner pleaded not quilty. Following a trial by jury on February 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. Petitioner received the death penalty for murder after the jury found the presence of two statutory aggravating circumstances, (1) that the murder was committed during the course of another capital felony, the kidnapping with bodily injury, and (2) that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture to the victim. The jury found one aggravating circumstance with respect to the kidnapping with bodily injury charge, that the crime was outrageously or wantonly vile, horrible or inhuman in that it involved aggravated battery and torture to the victim. The death sentence was imposed 1037 on February 8, 1980. Petitioner's motion for a new trial was denied after hearing on May 20, 1980. On direct appeal, the petitioner raised six issues, including denial of the motion for an independent psychiatric examination. The Supreme Court of Georgia considered these allegations and also conducted a sentence review, finding that the evidence supported the verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the death penalty was not disproportionate and that the charge at the sentencing phase was proper. Thus, the court affirmed both the convictions and the sentences. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981). A motion for rehearing was denied on March 18, 1981. Petitioner subsequently filed a petition for a writ of certiorari in the Supreme Court of the United States challenging the denial of an independent psychiatric examination. This petition was denied on October 5, 1981. Messer v. Georgia, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). Petitioner then filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia, on January 5, 1982. On or about January 25, 1982, the petitioner filed an amendment to the petition and a brief in support. Petitioner did not raise the denial of the motion for independent psychiatric examination. The state habeas corpus court denied relief without a hearing on February 23, 1982. Petitioner's Application for Certificate of Probable Cause to Appeal was denied on April 20, 1982. Subsequently, a petition for a writ of certiorari was filed in which the petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. Certiorari was denied on October 4, 1982. Messer v. Zant, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148, rehng. den., sub. nom, Cape v. Zant, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626 (1982). Petitioner filed an application for habeas corpus relief in the United States District Court for the Northern District of Georgia, Rome Division, on November 23, 1982. In that petition, the petitioner raised the denial by the trial court of the motion for an independent psychiatric examination and funds for an expert. The case was transferred to the Atlanta Division and an evidentiary hearing was held before United States Magistrate Joel M. Feldman on August 5, 1983. On February 1, 1984, the magistrate entered a report and recommendation recommending that relief be denied as to the conviction, but suggesting that relief be granted as to the sentencing phase finding that counsel was ineffective during the closing argument at the sentencing phase. On March 30, 1984, this court entered an order adopting all portions of the magistrate's report and recommendation except that portion dealing with the effectiveness of counsel at the sentencing phase. This court concluded that petitioner had failed to show any prejudice resulting from this allegation. Messer v. Francis, No. C82-419A (N.D.Ga. March 30, 1984) (Hall, J.). This court also ruled on certain other allegations not addressed by the magistrate and denied a certificate for probable cause to appeal. Id. The Eleventh Circuit Court of Appeals granted the certificate on June 1, 1984. Subsequently, a panel of the Eleventh Circuit Court of Appeals affirmed this court's decision denying habeas corpus relief in an opinion dated April 30, 1985. Messer v. Kemp, 760 F.2d 1080 (11th Cir. 1985). Only three issues were raised on appeal; the denial of the motion for a mistrial, the allegation of ineffective assistance of counsel and the question of whether jury instructions were correct on the kidnapping with bodily injury charge. A petition for rehearing en banc was denied on August 23, 1985. Petitioner then filed a petition for a writ of certiorari in the Supreme Court of the United States which was denied on January 21, 1986. Messer v. Kemp, ___ U.S. ___, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). On June 17, 1986, an order was signed setting a new execution time frame beginning at noon on July 2, 1986, and ending at *1038 noon on July 9, 1986. Petitioner filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia on June 26, 1986, raising five allegations, including the allegation that he had been denied funds for an independent psychiatric examination and that the death penalty was applied in a discriminatory fashion. No evidence was proffered to the state habeas corpus court by the petitioner, nor did petitioner assert that any was available. On June 27, 1986, respondent filed a motion to dismiss the petition. At 8:00 a.m. on that day, a hearing was held before the Honorable Hal Craig on the petition, request for a stay and motion to dismiss. At 3:10 p.m. on that date, an order was filed denying the stay, dismissing the petition as successive as to four counts and finding the remaining count to be without merit. Petitioner filed a notice of appeal and an application for certificate of probable cause to appeal that afternoon. On Monday morning, June 30, 1986, petitioner filed an amendment to his application for a certificate of probable cause. Respondent filed a response to the application. On that same date, the Supreme Court of Georgia denied the application for a certificate of probable cause to appeal. Petitioner then filed the current petition with this court on July 1, 1986. This court orally granted petitioner's motion to proceed in forma pauperis. DISCUSSION Petitioner contends that he was convicted and sentenced to death in violation of the Georgia Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner argues that under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) he was denied funds to have an independent psychiatrist to aid in his defense, in violation of his rights under the Fourteenth Amendment. (Petition for Writ of Habeas Corpus custody ("Petition")). Petitioner also argues that the imposition of the death penalty violates the Eighth Amendment's prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner. As an initial matter, the court finds that petitioner's claim that imposition of the death penalty violates the Eighth Amendment's prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner, is without merit and cannot provide a basis for the relief sought. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc).[1] Respondent pleads abuse of the writ under Rule 9(b) of the Rules Governing § 2254 cases. Specifically, respondent asserts that all claims raised in the instant petition have been raised in a prior federal habeas corpus petition. (Respondent's Answer/Response, "Response").[2] Therefore, to determine whether any ground for relief is properly before this court, the court must consider whether petitioner has abused the writ in bringing a successive petition. This court holds that petitioner abused the writ in raising his Ake (denial of independent psychiatric evaluation) claim in his second habeas petition. Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and if the prior determination was on the merits, or if new and different grounds	647 f. supp. 1035 ( 1986 ) james messer, jr., appellant, v. ralph kemp, columbia, georgia diagnostic and classification center, respondent. civ. a. no. c86 - 173r. united states district court, n. d. georgia, rome division. july 7, 1986. * 1036 howard j. manchel, chattanooga, ga., for appellant. mary beth harris, asst. atty. gen., atlanta, ga., for respondent. order robert g. hall, district judge. james messer, jr., who is scheduled to be executed before july 9, 1986, petitions this court for a writ of habeas corpus, pursuant to 28 u. s. c. § 2254. this court has stayed petitioner ' s execution pending upon full review of the issues raised by the petition. for the reasons set forth herein, the court denies prisoner ' s petition, and accordingly lifts the stay of execution. facts petitioner, james e. messer, jr., was indicted by the grand jury of polk county, georgia, during the november term, 1979, for kidnapping with bodily injury and for the murder of rhonda tanner. a special plea of insanity was filed on behalf of the petitioner. after two subsequent state sponsored psychiatric examinations revealed that petitioner was mentally competent to stand trial, the special plea with insanity was withdrawn. at his trial petitioner pleaded not quilty. following a trial by jury on february 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. petitioner received the death penalty for murder after the jury found no presence of two statutory aggravating circumstances, ( 1 ) that the murder was committed during this course of another capital felony, the kidnapping with bodily injury, and ( 2 ) that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture to the victim. the jury found one aggravating condition with respect to the kidnapping with bodily injury charge, that the crime was outrageously or wantonly vile, horrible or inhuman in that it involved aggravated battery and torture to the victim. the death sentence was imposed * 1037 on february 8, 1980. petitioner ' s motion for a new trial was denied after hearing on may 20, 1980. on direct appeal, the petitioner raised six issues, including denial of the motion for an independent psychiatric examination. the supreme court of georgia considered these allegations and also conducted a sentence review, finding that the evidence supported the verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the death penalty was not disproportionate and that the charge at the sentencing phase was proper. thus, the court affirmed both the convictions and the sentences. messer v. state, 247 ga. 316, 276 s. e. 2d 15 ( 1981 ). a motion for rehearing was denied on march 18, 1981. petitioner subsequently filed a petition for a writ of certiorari in the supreme court of the united states challenging the denial of an independent psychiatric examination. this petition was denied on october 5, 1981. messer v. georgia, 454 u. s. 882, 102 s. ct. 367, 70 l. ed. 2d 193 ( 1981 ). petitioner then filed a petition for habeas corpus relief in the superior court of butts county, georgia, on january 5, 1982. on or about january 25, 1982, the petitioner filed an amendment to the petition and a brief in support. petitioner did not raise the denial of the motion for independent psychiatric examination. the state habeas corpus court denied relief without a hearing on february 23, 1982. petitioner ' s application for certificate of probable cause to appeal was denied on april 20, 1982. subsequently, a petition for a writ of certiorari was filed in which the petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. certiorari was denied on october 4, 1982. messer v. zant, 459 u. s. 882, 103 s. ct. 182, 74 l. ed. 2d 148, rehng. den., sub. nom, cape v. zant, 459 u. s. 1059, 103 s. ct. 479, 74 l. ed. 2d 626 ( 1982 ). petitioner filed an application for habeas corpus relief in the united states district court for the northern district of georgia, rome division, on november 23, 1982. in that petition, the petitioner raised the denial by the trial court of the motion for an independent psychiatric examination and funds for an expert. the case was transferred to the atlanta division and an evidentiary hearing was held before united states magistrate joel m. feldman on august 5, 1983. on february 1, 1984, the magistrate entered a report and recommendation recommending that relief be denied as to the conviction, but suggesting that relief be granted as to the sentencing phase finding that counsel was ineffective during the closing argument at the sentencing phase. on march 30, 1984, this court entered an order adopting all portions of the magistrate ' s report and recommendation except that portion dealing with the effectiveness of counsel at the sentencing phase. this court concluded that petitioner had failed to show any prejudice resulting from this allegation. messer v. francis, no. c82 - 419a ( n. d. ga. march 30, 1984 ) ( hall, j. ). this court also ruled on certain other allegations not addressed by the magistrate and denied a certificate for probable cause to appeal. id. the eleventh circuit court of appeals granted the certificate on june 1, 1984. subsequently, a panel of the eleventh circuit court of appeals affirmed this court ' s decision denying habeas corpus relief in an opinion dated april 30, 1985. messer v. kemp, 760 f. 2d 1080 ( 11th cir. 1985 ). only three issues were raised on appeal ; the denial of the motion for a mistrial, the allegation of ineffective assistance of counsel and the question of whether jury instructions were correct on the kidnapping with bodily injury charge. a petition for rehearing en banc was denied on august 23, 1985. petitioner then filed a petition for a writ of certiorari in the supreme court of the united states which was denied on january 21, 1986. messer v. kemp, _ _ _ u. s. _ _ _, 106 s. ct. 864, 88 l. ed. 2d 902 ( 1986 ). on june 17, 1986, an order was signed setting a new execution time frame beginning at noon on july 2, 1986, and ending at * 1038 noon on july 9, 1986. petitioner filed a petition for habeas corpus relief in the superior court of butts county, georgia on june 26, 1986, raising five allegations, including the allegation that he had been denied funds for an independent psychiatric examination and that the death penalty was applied in a discriminatory fashion. no evidence was proffered to the state habeas corpus court by the petitioner, nor did petitioner assert that any was available. on june 27, 1986, respondent filed a motion to dismiss the petition. at 8 : 00 a. m. on that day, a hearing was held before the honorable hal craig on the petition, request for a stay and motion to dismiss. at 3 : 10 p. m. on that date, an order was filed denying the stay, dismissing the petition as successive as to four counts and finding the remaining count to be without merit. petitioner filed a notice of appeal and an application for certificate of probable cause to appeal that afternoon. on monday morning, june 30, 1986, petitioner filed an amendment to his application for a certificate of probable cause. respondent filed a response to the application. on that same date, the supreme court of georgia denied the application for a certificate of probable cause to appeal. petitioner then filed the current petition with this court on july 1, 1986. this court orally granted petitioner ' s motion to proceed in forma pauperis. discussion petitioner contends that he was convicted and sentenced to death in violation of the georgia constitution and the fifth, sixth, eighth and fourteenth amendments to the united states constitution. petitioner argues that under ake v. oklahoma, 470 u. s. 68, 105 s. ct. 1087, 84 l. ed. 2d 53 ( 1985 ) he was denied funds to have an independent psychiatrist to aid in his defense, in violation of his rights under the fourteenth amendment. ( petition for writ of habeas corpus custody ( " petition " ) ). petitioner also argues that the imposition of the death penalty violates the eighth amendment ' s prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner. as an initial matter, the court finds that petitioner ' s claim that imposition of the death penalty violates the eighth amendment ' s prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner, is without merit and cannot provide a basis for the relief sought. mccleskey v. kemp, 753 f. 2d 877 ( 11th cir. 1985 ) ( en banc ). [ 1 ] respondent pleads abuse of the writ under rule 9 ( b ) of the rules governing § 2254 cases. specifically, respondent asserts that all claims raised in the instant petition have been raised in a prior federal habeas corpus petition. ( respondent ' s answer / response, " response " ). [ 2 ] therefore, to determine whether any ground for relief is properly before this court, the court must consider whether petitioner has abused the writ in bringing a successive petition. this court holds that petitioner abused the writ in raising his ake ( denial of independent psychiatric evaluation ) claim in his second habeas petition. rule 9 ( b ) of the rules governing 28 u. s. c. § 2254 provides : a second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and if the prior determination was on the merits, or if new and different grounds	647 F. Skp0. 1035 (1986) James MESSER, Jr. , Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent. Civ. A. No. C86 - 173R. United States District Court, N. D. Georgia, Rome Division. July 7, 1986. * 1036 Howard J. Manchel, Atlanta, Ga. , for appellant. Mary Beth WestmoEelahd, Asst. Atty. Gen. , Atlanta, Ga. , for respondent. ORDER ROBERT H. HALL, District Judge. James Messer, Jr. , who is scheduled to be executed before July 9, 1986, petitions this court for a writ of Habeas Corpus, pursuant to 28 U. S. C. § 2254. This court has stayed petitioner ' s execution pending a full review of the issues raised by the petition. For the reasons set forth herein, the court DENIES prisoner ' s petition, and accordingly lifts the stay of execution. FACTS Petitioner, James E. Messer, Jr. , was indicted by the grand jury of Polk County, Georgia, during the November Term, 1979, for kidnapping with bodily injury and for the murder of Rhonda Tanner. A special plea of insanity was filed on behalf of the petitioner. After two subsequent state sponsored psychiatric examinations established that petitioner was mentally competent to stand trial, the special plea of insanity was withdrawn. At his trial petitioner pleaded not quilty. Following a trial by jury on February 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. Petitioner received the death penalty for murder after the jury found the presence of two statutory aggravating circumstances, (1) that the murder was committed during the course of another capital felony, the kidnapping with bodily injury, and (2) that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture to the victim. The jury found one aggravating circumstance with respect to the kidnapping with bodily injury charge, that the crime was outrageously or wantonly vile, horrible or inhuman in thzh it involved aggravated battery and torture to the victim. The death sentence was imposed * 1037 on February 8, 1980. Petitioner ' s motion for a new trial was denied after hearing on May 20, 1980. On direct appeal, the petitioner raised six issues, including denial of the motion for an independent psychiatric examination. The Supreme Court of Georgia considered these allegations and also conducted a sentence review, finding yJat the evidence supported the verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the death penalty was not disproportionate and that the charge at the sentencing phase was proper. Thus, the court affirmed both the convictions and the sentences. Messer v. State, 247 Ga. 316, 276 S. E. 2d 15 (1981 ). A motion for rehearing was denied on March 18, 1981. Petitioner subsequently filed a petition for a writ of certiorari in the Supreme Court of the United States challenging the denial of an independent psychiatric examination. This petition was denied on October 5, 1981. Messer v. Georgia, 454 U. S. 882, 102 S. Ct. 367, 70 L. Ed. 2d 193 (1981 ). Petitioner then filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia, on January 5, 1982. On or about January 25, 1982, the petitioner filed an amendment to the petition and a brief in support. Petitioner did not raise the denial of the motion for independent psychiatric examination. The state habeas corpus court denied relief without a hearing on February 23, 1982. Petitioner ' s Application for Certificate of Probable Cause to Appeal was denied on April 20, 1982. Subsequently, a petition for a writ of certiorari was filed in which the petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. Certiorari was denied on October 4, 1982. Messer v. Zant, 459 U. S. 882, 103 S. Ct. 182, 74 L. Ed. 2d 148, rehng. den. , sub. nom, Cape v. Zant, 459 U. S. 1059, 103 S. Ct. 479, 74 L. Ed. 2d 626 (1982 ). Petitioner filed an application for habeas corpus relief in the United States District Court for the Northern District of Georgia, Rome Division, on November 23, 1982. In that petition, the petitioner raised the denial by the trial court of the motion for an independent psychiatric examination and funds for an expert. The case was transferred to the Atlanta Division and an evidentiary hearing was held before United States Magistrate Joel M. Feldman on August 5, 1983. On February 1, 1984, the magistrate entered a report and recommendation recommending that relief be denied as to the conviction, but suggesting that relief be granted as to the sentencing phase finding that counsel was ineffective dur8nv the closing argument at the sentencing phase. On March 30, 1984, this court entered an order adopting all portions of the magistrate ' s report and recommendation except that portion dealing with the effectiveness of counsel at the sentencing phase. This court concluded that petitioner had failed to show any prejudice resulting from this allegation. Messer v. Francis, No. C82 - 419A (N. D. Ga. March 30, 1984) (Hall, J. ). This court also ruled on certain other allegations not adVresXed by the maglsHrate and denied a certificate for probable cause to appeal. Id. The Eleventh Circuit Court of Appeals granted the certificate on June 1, 1984. Subsequently, a panel of the Eleventh Circuit Court of Appeals affirmed this court ' s decision denying Uaheas corpus relief in an opinion dated April 30, 1985. Messer v. Kemp, 760 F. 2d 1080 (11th Cir. 1985 ). Only three issues were raised on appeal; the denial of the motion for a mistrial, the allegation of ineffective assistance of counsel and the question of whether jury instructions were correct on the kidnapping with bodily injury charge. A petition for rehearing en banc was denied on August 23, 1985. Petitioner then filed a petition for a writ of certiorari in the Supreme Court of the United States which was denied on January 21, 1986. Messer v. Kemp, ___ U. S. ___, 106 S. Ct. 864, 88 L. Ed. 2d 902 (1986 ). On June 17, 1986, an order was signed setting a new execution time frame beginning at noon on July 2, 1986, and ending at * 1038 noon on July 9, 1986. Petitioner filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia on June 26, 1986, raising five allegations, including the allegation that he had been denied funds for an independent psychiatric examination and that the death penalty was applied in a discriminatory fashion. No evidence was proffered to the state habeas corpus court by the petitioner, nor did petitioner assert that any was available. On June 27, 1986, respondent filed a motion to dismiss the petition. At 8: 00 a. m. on that day, a hearing was held before the Honorable Hal Craig on the petition, request for a stay and motion to dismiss. At 3: 10 p. m. on that date, an order was filed denying the stay, dismissing the petition as successive as to four counts and finding the remaining count to be without merit. Petitioner filed a notice of appeal and an application for certificate of probable cause to appeal that afternoon. On Monday morning, June 30, 1986, petitioner filed an amendment to his application for a certificate of probable cause. Respondent filed a response to the application. On that same date, the Supreme Court of Georgia denied the appkisation for a certificate of probable cause to appeal. Petitioner then filed the current petition with this court on July 1, 1986. This court orally granted petitioner ' s motion to proceed in forma pauperis. DISCUSSION Petitioner contends that he was convicted and sentenced to death in violation of the Georgia Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner argues that under Ake v. Oklahoma, 470 U. S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) he was denied funds to have an independent psychiatrist to aid in his defense, in violation of his rights under the Fourteenth Amendment. (Petition for Writ of Habeas Corpus custody (" Petition ") ). Petitioner also argues that the imposition of the death penalty violates the Eighth Amendment ' s prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner. As an initial matter, the court finds that petitioner ' s claim that imposition of the death penalty violates the Eighth Amendment ' s prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner, is without merit and cannot provide a basis for the relief sought. McCleskey v. Kemp, 753 F. 2d 877 (11th Cir. 1985) (en banc ). [1] Respondent pleads abuse of the writ under Rule 9 (b) of the Rules Governing § 2254 cases. Sp3cificall7, respondent asserts that all claims raised in the instant petition have been raised in a prior federal habeas corpus petition. (Respondent ' s Answer / Response, " Response " ). [2] Therefore, to determine whether any ground for relief is properly before this court, the court must consider whether petitioner has abused the writ in bringing a successive petition. This court holds that petitioner abused the writ in raising his Ake (denial of independent psychiatric evaluation) claim in his second habeas petition. Rule 9 (b) of the Rules Governing 28 U. S. C. § 2254 provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and if the prior determination was on the merits, or if new and different grounds	F.Supp. 1035 (1986) James MESSER, Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Center, Respondent. Civ. A. C86-173R. United States District Court, N.D. Georgia, Rome Division. July 7, 1986. 1036 Howard J. Manchel, Atlanta, Ga., for appellant. Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent. ORDER ROBERT H. HALL, District Judge. James Messer, Jr., who scheduled to be executed before July 9, 1986, petitions this court for a of Habeas Corpus, pursuant to 28 U.S.C. § 2254. This court has stayed execution pending a full review of the issues raised by the petition. For the reasons set forth herein, the court DENIES prisoner's petition, and lifts the stay of execution. FACTS Petitioner, James E. Messer, Jr., was indicted by the grand of Polk County, Georgia, during the November Term, 1979, for kidnapping bodily injury and for the murder of Rhonda A special plea of filed on behalf of petitioner. After two subsequent state sponsored examinations established that petitioner mentally competent to stand trial, the special plea of insanity was withdrawn. At his petitioner pleaded not quilty. Following a trial by jury February 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. Petitioner received the death penalty murder the jury found the presence of two aggravating circumstances, (1) that the murder was committed the course of another capital the kidnapping with bodily injury, and (2) that the murder outrageously and wantonly vile, horrible or inhuman that it involved torture to the victim. The jury found one aggravating circumstance with respect the kidnapping with charge, that crime was or wantonly vile, horrible or inhuman in that it involved aggravated battery and torture the victim. The death sentence was imposed on February 8, 1980. Petitioner's motion for trial was denied hearing on May 20, 1980. On direct appeal, the petitioner raised issues, including denial of the motion for an independent psychiatric examination. The Supreme Court of Georgia considered these allegations and also conducted a sentence review, finding that the supported the verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the death penalty was not disproportionate and that the charge at the sentencing phase was proper. Thus, the court affirmed both the convictions and the sentences. Messer v. State, 247 Ga. 276 S.E.2d 15 (1981). motion for was denied on 18, 1981. Petitioner subsequently filed petition for a writ of certiorari in the Supreme Court of the United States challenging denial of an independent psychiatric examination. This petition denied on October 5, 1981. Messer Georgia, U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). Petitioner then filed a petition for habeas corpus in the Superior Court of Butts County, Georgia, January 5, 1982. On about January 25, 1982, petitioner filed an amendment to the petition a brief in support. Petitioner did not raise the denial of the for independent psychiatric examination. The habeas corpus relief without a hearing on February 23, 1982. Petitioner's Application for Certificate of Probable Cause to Appeal was denied on April 20, 1982. Subsequently, a petition for a writ of certiorari was filed which petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. Certiorari was on October 4, 1982. Messer Zant, U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148, rehng. den., sub. Cape v. Zant, U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626 Petitioner filed an application for corpus in the States District Court the Northern District of Georgia, Rome Division, on November 23, 1982. In that petition, the petitioner denial by the trial court of the motion for an independent psychiatric examination funds for an expert. The case was transferred the Division and an hearing was held United States Magistrate Joel M. Feldman on August 5, On 1, 1984, the magistrate entered a report and recommendation recommending that relief be denied as to but suggesting that relief be granted as to the sentencing phase finding that counsel was during the closing argument at sentencing phase. On March 30, this court entered an order adopting all portions of the magistrate's report and recommendation except that portion dealing with the effectiveness of counsel at the phase. court concluded that failed to any prejudice resulting from this allegation. Messer v. Francis, No. C82-419A (N.D.Ga. March 30, 1984) (Hall, J.). This court also ruled on certain other allegations not addressed by the magistrate and denied a certificate for probable cause to appeal. Id. Eleventh Circuit Court of Appeals granted the on June 1, 1984. Subsequently, a panel of the Eleventh Circuit Court of Appeals this court's decision denying habeas corpus relief in an opinion dated April 30, Messer v. Kemp, 760 F.2d 1080 (11th 1985). Only three issues raised on appeal; the denial of the motion for a mistrial, allegation of ineffective assistance of counsel and the question of whether jury instructions were correct on kidnapping with bodily injury charge. A petition for rehearing en banc was on August 23, 1985. Petitioner then filed a petition for a writ certiorari in the Supreme Court of the States which was denied on January 21, 1986. Messer v. Kemp, ___ U.S. ___, 106 S.Ct. 864, L.Ed.2d 902 (1986). On June 17, 1986, an was signed setting a new execution time frame at on July 2, 1986, and ending at 1038 noon on July 9, 1986. filed a petition for habeas corpus relief in the Superior Court of Butts Georgia on June 26, 1986, raising five allegations, including the allegation that he had denied funds an independent psychiatric examination and that the death penalty was applied in a discriminatory fashion. No evidence was proffered the state habeas corpus court by the petitioner, nor did petitioner assert that any was On June 27, 1986, respondent filed a motion to dismiss petition. At 8:00 a.m. on that day, hearing was held before the Honorable Hal Craig on the petition, request for a stay and motion to dismiss. At 3:10 p.m. on that date, an order was filed denying the stay, the petition as successive as four and finding the count to be without merit. Petitioner filed a notice of appeal and an application for certificate probable cause to that afternoon. On Monday morning, June 1986, petitioner filed an amendment to his application for a certificate probable cause. Respondent filed a response the application. On that same date, the Supreme Court of Georgia denied application for a certificate of probable cause to appeal. Petitioner then filed the current petition with this court on July 1, This court petitioner's motion to proceed in forma pauperis. DISCUSSION Petitioner contends he was convicted and sentenced to death in violation of Georgia Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner argues under Ake v. Oklahoma, 470 U.S. 68, 1087, 84 L.Ed.2d 53 (1985) he was funds to have an psychiatrist to aid in his defense, in violation of his rights under Fourteenth Amendment. (Petition for Writ of Habeas Corpus custody Petitioner also argues the imposition of the death penalty violates the Amendment's cruel and unusual punishment because it will be applied in a racially discriminatory manner. As an initial matter, the court finds that petitioner's claim that imposition of the death penalty violates the Eighth Amendment's of cruel and unusual because it will be applied in a racially discriminatory manner, is without and provide basis for the relief sought. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc).[1] Respondent pleads the under Rule 9(b) of the Governing § cases. Specifically, respondent asserts that all claims raised in the instant petition have been raised in a prior federal habeas corpus petition. (Respondent's Answer/Response, "Response").[2] Therefore, to determine whether any ground for relief is properly before this court, the must consider whether petitioner abused the writ bringing a successive petition. This court holds that petitioner abused the writ in raising Ake (denial of psychiatric evaluation) claim in his second habeas petition. Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 A second or petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and if prior determination was on the merits, or if new and different grounds	647 F.Supp. 1035 (1986) JAMES MESsER, jR., aPpellANT, v. RalPH keMp, waRdEN, GEOrgia diAgnOStic aNd cLASSIficaTion cENteR, REsPoNDENT. CiV. a. NO. C86-173r. unITeD sTates dIstRiCT court, N.D. GeorGiA, RoMe diViSIoN. JuLY 7, 1986. 1036 HowaRd J. ManCHeL, aTLaNtA, Ga., fOR ApPELLaNT. mary BetH WeSTmOreLAnd, assT. attY. geN., atLantA, Ga., For ReSPOndENT. ordeR robErT H. HAll, diSTrIcT Judge. jameS MEssER, jr., WHO is scHEduLed to be eXECuTeD BEForE jUly 9, 1986, peTitioNS tHIS COuRt fOR a WRit of HAbeAS CORPUs, PURsuant To 28 U.S.c. § 2254. ThIs cOUrt HaS StAYed PEtITIoner'S ExeCuTION PENdInG a FuLL REviEW OF THE iSSUes Raised by THe PETItIoN. fOR THE ReasoNs SeT FORTh HereiN, the COURT denIeS PRIsoNER's PETiTIon, ANd acCORdIngLY lifts ThE sTaY oF eXecUtIon. Facts peTitiOnEr, JAmes E. MESsER, jR., Was INdiCtED BY THE Grand jUry oF poLk coUNtY, gEorGIa, DUrinG the NovEMbeR tERm, 1979, fOR KIDNAppiNG WITh BodILY INjUry AnD FOr The MUrdeR OF RHONda tanNEr. A sPeciAL plEA oF iNSaNIty WAs FilEd oN BehalF Of ThE peTITiONeR. AFter Two sUBSEQuENt StAte SponsoRED pSycHiatRiC ExamiNAtIoNS estAbLiSHeD THat PEtitIOnEr WaS MeNtalLy cOMpetENT To sTANd TRiAl, the sPECIal pleA of insANItY WAs witHdRawn. aT hIs tRiAL pETITIOner PLEaDED NOt qUIlTy. foLLoWiNg a TRIaL bY JUry On febRUARY 7, 1980, petiTIoNER was Found guILTY on botH charGES anD sEnTENceD TO dEATH for BOth OFFEnsES. PeTITIoNer ReCeiveD THe DEaTh PenaltY fOr MUrDEr afTeR the juRY fOUNd The PrESeNCE oF tWo sTaTUToRY AGGrAvatINg ciRcumstanCES, (1) thAT tHE MURder waS cOMmITTeD DuRING The cOurse OF AnOther capitAL feLony, THE KIdNaPPinG WIth bOdily injURy, And (2) thaT thE mUrdEr WAS OUTragEOUSLy aND wANTonly vILe, Horrible Or inHUman IN THAT it INVolVed TorTure To ThE vIcTiM. The jUry fOuND OnE agGravAtIng cIRCUMSTAnCE WITh ResPeCt tO tHE KiDnAPPING witH boDiLY InJURY chARGE, thaT The CriME WaS OUtRAGEOUSLy OR wANTonly vIle, horrIBLE or inHUmAN IN that IT INvOLveD AggRAVATEd bATtEry aND Torture TO THe ViCtIM. tHe deAtH SeNteNcE wAs ImPoSED 1037 on FEBruArY 8, 1980. PEtItIOneR'S MOtIoN fOR A new trIAl Was denIed AFTeR hEARiNG ON maY 20, 1980. On dIREcT aPpEaL, tHE PeTitIoner raised SiX IsSuES, iNcluding DENiaL Of ThE motIOn For An InDepENdent PsychIaTRic EXaMINaTioN. thE SuprEME CoURT OF GEorgiA cOnsIDEred thEsE ALleGAtionS anD alSo CondUCted a sENtencE rEVIew, finDing THAt tHe EVIDenCE SUpPoRTEd tHE VeRDiCT, tHaT ThE seNTenCe Was NOt imPOsed UNDer passION oR PREjuDice, THAt thE evIDENCE suPpOrteD tHE AGGravaTINg cIrcuMstAnCeS, tHAt THe deATH pEnalty WAs nOT diSPROportIOnAte AnD tHAt tHE chaRGe At tHE sEnTENcing pHAse WAS ProPEr. ThUs, the CouRt AFFIRMeD boTh ThE cOnVictiONS and ThE SENtENceS. MEssEr v. StaTE, 247 GA. 316, 276 s.E.2D 15 (1981). a MOtIOn FoR RehEaRiNg WaS dENIed on MArCh 18, 1981. pEtitIoNER suBSeQUENtlY FILeD A petitIoN fOr A WRIt OF cErtioRArI iN THe supREme cOuRT oF THe UnITED StaTES cHALLenGIng ThE denIAl of an INdePEndenT PSYChIAtRic eXAMINatIoN. ThiS PEtITIOn was denIEd on OctOBer 5, 1981. MESSER V. georGia, 454 U.S. 882, 102 s.CT. 367, 70 L.Ed.2D 193 (1981). petItioNer tHEN fIlEd A peTitIon FOR hABEAs CORpus RELIeF In thE SUPERIOR CouRt of BUTtS COUnty, gEoRGiA, oN jAnUaRy 5, 1982. oN Or aboUT JanuaRy 25, 1982, ThE petITiOner fiLeD An aMEnDMent To The petItIon aND A BrieF In SuPpoRt. pETItiOner Did Not RaiSE THe dENIaL of the motioN FoR IndepEndENt pSYChIAtric eXaMinATioN. THE StATe hAbEas COrpUs coUrt deNiED reLieF WIThOut a HearInG ON FEBrUaRY 23, 1982. PetiTiOner's apPLICAtiOn FOR CErtiFiCatE OF PRobable cAuse To AppEAL wAS dENied oN APrIL 20, 1982. SUBsEquentLY, A PETitIOn For a WriT Of cERtIorari wAs FilED IN WHiCh The peTItiONEr ChAlLeNgED The aDMIsSiON OF hIS cOnFEssIon and AssErteD THAT He WaS ArrEstED WiTHOuT ProbaBLe caUSe. CERtIoRaRi WAs DeNiEd ON OctOBeR 4, 1982. mESSer v. zAnT, 459 u.S. 882, 103 S.cT. 182, 74 L.Ed.2D 148, REhNG. DEn., SuB. Nom, CapE v. zant, 459 U.S. 1059, 103 S.CT. 479, 74 l.ed.2d 626 (1982). PetITiOnEr FIled AN AppLICAtiOn FOr HABEAS COrPus RelIEF in ThE UnIted staTeS DISTrICT coUrT fOR the nORTHern DiSTricT OF geoRgIA, rome diVIsion, oN NoVEmbeR 23, 1982. in That PEtITION, THE pETitiONEr rAIseD The DeNIaL BY THE trIaL cOurT Of THe motiOn fOr AN INdepENdent psYchiatrIC eXAmiNatIoN And fUnds For AN eXPERt. the cAsE Was TRAnsferrEd to thE ATLaNTA DiVIsioN and aN evideNTiary heARing WaS heLd beFOre UNited sTAtES MAGistrate jOel m. FelDMAN oN AuGUst 5, 1983. On feBruaRY 1, 1984, the MAgiSTrAtE ENTERED A rEporT aNd rEcOMmEnDATioN REcOmmendING ThAT reLief bE DENied as To thE coNviCtiOn, buT sUggEstINg THat RElIeF be grAnted AS To the sEnTenCInG pHasE FINdiNg That cOuNSel wAS INefFecTivE DURing the cLOSInG ARGUMenT AT The SEnTeNCiNG pHaSe. On MARch 30, 1984, thIS CoUrt eNTereD aN oRdEr adoPtiNG alL pORtIons Of the maGIstRaTe's REpORt and REcoMMenDatioN eXCept THAT portIon dEalinG With The eFFeCtivenESS oF cOuNSEl aT tHe SeNTenCinG Phase. tHiS cOuRt COncLUDED THAT pEtItioneR HaD fAiled tO ShOW aNY PrEJuDiCe rEsULtiNG FrOm tHIS AllegatioN. meSsEr v. frANCiS, nO. C82-419A (n.d.GA. MaRch 30, 1984) (HaLL, J.). thIS courT ALSo RuLED On CerTaIN OthEr allegAtIONs NOT ADDrESseD by tHe mAgiStRatE AnD DeNieD a ceRtiFicAtE For PRObABLE Cause tO APpEAl. ID. ThE elEVeNTh CIrCUit cOUrT Of aPpEAls gRAnTeD The CeRtIfiCaTe On june 1, 1984. SUbsEQUENTly, A paNeL oF thE elEveNTh cirCUiT Court of appeaLs AFFiRmEd THIS CoUrt's DEcisiOn dENYiNG HaBeas cORpus RELIEf iN aN OPInioN daTEd aPRiL 30, 1985. mESsEr V. KEMp, 760 F.2D 1080 (11Th CIR. 1985). OnLY THree Issues WeRE RaIsEd On apPEAL; THe deniaL of the MoTIoN for A MIstRIal, The AllegATIOn OF IneFFeCTIvE aSSiStaNce OF cOunsel aNd ThE QuEStIoN of WheTher jUrY InSTructions wEre COrREcT on tHe kiDnappiNg WItH BOdiLy injury CHArGE. A pETITION fOR REHEaRinG En bANC WAs DeNieD oN auguST 23, 1985. PeTITIoNer THeN fiLed A petitIoN fOR a wRIt Of cerTiorARI in the sUpReME CoURT oF THE UniTEd sTatEs whiCH waS deniEd oN januaRY 21, 1986. MEsSER V. kEMp, ___ U.s. ___, 106 s.ct. 864, 88 l.ED.2D 902 (1986). On JUne 17, 1986, An OrDEr WaS SiGneD SETting A NEw exEcutION TimE fraMe BEGinning at noON On JUlY 2, 1986, aND EnDINg at *1038 noON on jUly 9, 1986. peTITIONer fileD A pEtiTiOn FOR HABEas CorPUS RElIef In tHe SuPeRiOR COUrt oF buTTS COunty, gEORGIA oN junE 26, 1986, RaIsING fiVe AlLegATioNs, inCluDIng THe AllEGATIoN thaT HE haD BEeN DeNieD Funds fOR An inDePenDenT pSYchIATRIc exaMInATIon aNd tHaT THE DEath PENALTY wAS aPpliEd iN a DIScRImInatory fashIOn. No evideNce wAs profFEred To THe StaTE hAbeaS CORpus COuRt bY The peTiTIoNer, NoR diD PEtiTIONeR AssErT thAT aNY WAS AVailabLE. ON JunE 27, 1986, RESpoNdeNT fIleD A mOtIon TO dIsmiSs ThE peTiTIon. at 8:00 A.M. On THaT DAy, A heariNG WAS hEld BeFoRe ThE HOnoraBLe haL cRAIG ON tHE peTItioN, reQuEST FoR a STAY anD MotION To DiSMiSS. At 3:10 P.M. oN THAT DaTe, An ORDEr waS FILed DeNyiNg ThE StAY, DISMIsSInG thE petITioN as sUCcEssIve AS To FouR CounTs ANd FiNdINg the ReMAInINg count TO BE WiTHOuT meRIt. petiTiOner FiLED a NotIcE of aPpEAL ANd An ApPlIcATIon foR cERTiFICATe OF pROBABle cauSE To ApPeal ThAT AfterNOon. oN moNDay moRnING, juNe 30, 1986, peTitioNER FiLED An aMeNDMENt TO HIs aPPLIcAtIon fOR A CERTIFicAte of probAbLe cAUsE. reSpOnDeNt filEd a RESPOnse to thE aPpliCAtion. On tHAT SAmE dATE, ThE SUPRemE cOURT of georGIa dEnIEd THe APpLIcATION For a CERtifICatE oF PRObaBLe cAuSE to AppEAL. PeTiTiOnER thEn FILeD THE CURREnT PETITioN WITh thIS coURt oN JULy 1, 1986. This Court OrAlly gRAnted PETitioNeR's moTIoN TO proCEED iN ForMa PaUperis. discUssiOn pEtiTIoneR ContEnds THat hE waS conVICTED And senTEncED to DEath in vIoLaTIOn oF The geoRGiA CONSTiTutION anD the fIfTh, SixTh, eigHTH And FOuRTEeNTH AmEnDMEnTs tO the UnitEd stATES cONStiTuTIoN. petITiOneR ARGUeS thaT unDer AKe v. OkLahOmA, 470 U.S. 68, 105 s.CT. 1087, 84 l.ED.2d 53 (1985) he WAs deniED fUnds to haVe An IndEPeNdEnt PSyChiatrisT tO aiD In HiS dEfENSE, IN ViolATioN OF hIS rigHts UndEr THe fOURteeNtH ameNdmENt. (peTiTIoN For wrIt oF haBEaS cORpus CUsToDy ("PETItIon")). PEtItIOner Also aRGUEs THaT the impositiON Of tHe DEaTH peNAlTy vioLATes tHE EIgHTH aMENDMent's pROHibiTIOn Of CRueL and UNuSUaL puNISHmEnT bEcauSe It WILl Be APPlied in A rACiallY dISCRiMinATory MaNnEr. as an INITiAL mATTER, thE couRt FiNDS thAt pETiTIONEr'S CLAiM tHAt imPoSitiON OF THe DeATH PenAlTY VIolATES thE eIGhTh aMEndmeNt'S pRoHibITiOn OF cruel AnD uNUSUAL pUnisHmeNT BeCaUSE It WIlL BE APpLiEd in A rAcIALlY discriMInatoRY MANNER, IS WiThOut merit AnD cannot pRovidE a BAsIS fOR tHe reLiEf SouGhT. mCCLEsKEY V. KEMp, 753 f.2d 877 (11th CiR.1985) (en banC).[1] reSPoNDenT plEADS aBuse Of the WRIt UndER RulE 9(b) OF tHe ruLes GOverNiNg § 2254 casES. SPEcIfiCAlLy, REspoNDeNT assERTS tHaT ALL CLaiMs raisEd IN The insTANt PETiTIoN HavE bEEn RAIsed iN a PrIor feDERAl HaBEAs corpuS petitIon. (rESPONdeNT's answer/respOnSE, "resPonsE").[2] TheRefoRE, To DETERMINe whEtHEr any GRoUnd For reLIEF Is ProperLy beForE tHIS COurt, The cOURt MusT consiDEr WHETHEr peTITiOnEr has AbUSED thE WrIt iN BRinGIng a suCCEsSive pEtitioN. thIs CouRt HolDs that pEtItIONeR aBuSEd the WRIt iN RAiSING hIs akE (DeNiAL oF INDepenDent pSYChiAtrIc EvAlUaTion) cLAim iN hIS seCoND HABeAS pETitioN. RUle 9(b) Of The RULES GOVERNINg 28 u.S.C. § 2254 PrOViDes: a sEconD Or sUcCeSSIVE PEtITiOn MAY Be DIsMISseD if THE JUdgE FInDS ThaT iT fAilS tO aLlEGe New or diFferENT GROunDS FoR Relief anD IF the PriOr deTERmiNatiON waS ON tHe mERITs, OR if nEW aND dIffeRenT GROunDs	647 F.Supp. 1035 (1986)JamesMESSER, Jr., Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent. Civ. A. No. C86-173R. United States District Court, N.D. Georgia, Rome Division.July 7, 1986. 1036 Howard J. Manchel, Atlanta, Ga., for appellant.Mary BethWestmoreland, Asst. Atty. Gen.,Atlanta, Ga., for respondent. ORDER ROBERT H.HALL, District Judge. James Messer, Jr., who is scheduledto beexecuted before July 9, 1986, petitions this court for a writof Habeas Corpus, pursuant to 28U.S.C.§ 2254. Thiscourthas stayed petitioner's execution pending afull review of the issues raised by the petition. For the reasonsset forth herein, the courtDENIES prisoner's petition, and accordingly lifts the stay ofexecution. FACTS Petitioner, James E. Messer, Jr., was indicted by the grand jury of Polk County, Georgia, during the November Term, 1979, for kidnappingwith bodily injury and for the murder of RhondaTanner. Aspecial pleaof insanity was filedon behalfof the petitioner. Aftertwo subsequent state sponsored psychiatric examinations established that petitioner wasmentally competentto standtrial, thespecial plea of insanity was withdrawn. At his trial petitionerpleaded not quilty. Followinga trial by jury on February 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. Petitioner received the death penalty for murderafter the jury found thepresence of two statutory aggravating circumstances, (1) that the murder wascommitted during the course of another capital felony, the kidnapping with bodilyinjury,and (2)that themurder was outrageously and wantonly vile, horribleor inhuman in that itinvolved torture to the victim.The jury found one aggravating circumstance with respect to the kidnapping withbodily injury charge, that the crime was outrageously or wantonly vile, horrible or inhuman in thatitinvolved aggravated batteryand torture tothe victim. The death sentencewas imposed 1037on February 8, 1980. Petitioner's motion for a new trial was denied after hearing on May20, 1980. On directappeal, the petitioner raised six issues, including denial of the motion for an independent psychiatric examination. The Supreme Court of Georgia considered these allegations and also conducted a sentencereview, finding that the evidence supported the verdict, thatthe sentencewas not imposed under passionorprejudice,that the evidence supported the aggravating circumstances, that thedeath penalty was not disproportionate and that the charge at the sentencing phase was proper. Thus, thecourt affirmed both the convictions and the sentences. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981). A motion forrehearing was denied on March 18, 1981. Petitioner subsequently filed a petition for a writ of certiorari in the SupremeCourt of the United States challengingthe denial of an independent psychiatric examination. This petition was denied onOctober 5, 1981. Messerv. Georgia,454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). Petitioner then filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia, on January 5, 1982. On or about January 25, 1982, the petitioner filed anamendment to the petition and a brief in support. Petitioner did not raise the denial of the motion forindependent psychiatric examination. The state habeas corpus court denied relief without ahearing on February 23, 1982. Petitioner's Applicationfor Certificate of Probable Cause to Appeal was denied on April 20, 1982. Subsequently, a petition for a writof certiorari was filed inwhich the petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. Certiorariwas denied on October 4, 1982. Messer v. Zant, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148, rehng. den., sub. nom, Cape v. Zant, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626 (1982). Petitioner filedan application for habeas corpus relief in the United StatesDistrict Court for theNorthern DistrictofGeorgia,Rome Division, onNovember 23, 1982.In that petition, the petitioner raised the denial by the trial courtofthe motion for an independent psychiatric examination and funds for an expert. The case was transferred to the Atlanta Division and an evidentiary hearing was held before United States Magistrate Joel M. Feldman on August 5, 1983. On February 1, 1984, the magistrate entered a report and recommendation recommending thatrelief be denied as to the conviction, but suggesting that reliefbegranted as to the sentencing phase findingthat counsel was ineffective during the closing argument at the sentencing phase. On March 30, 1984, thiscourt entered an order adopting all portions of the magistrate's report and recommendation except that portion dealing with the effectiveness of counsel at the sentencing phase. Thiscourt concluded that petitioner hadfailed to show any prejudice resulting from this allegation. Messerv. Francis, No.C82-419A (N.D.Ga. March 30, 1984)(Hall,J.). This court also ruled on certain other allegations not addressed by the magistrateand denied a certificate for probablecause to appeal. Id. The Eleventh Circuit Court of Appealsgrantedthecertificate on June 1, 1984. Subsequently, a panel of the Eleventh Circuit Court of Appeals affirmed this court's decision denying habeas corpus reliefin an opinion datedApril 30,1985.Messer v. Kemp, 760 F.2d 1080 (11th Cir. 1985). Only three issues were raised on appeal; the denial ofthe motion for a mistrial, theallegation ofineffective assistance of counsel and the question of whether jury instructions were correct on the kidnapping with bodilyinjury charge. Apetition for rehearing en banc was denied on August 23, 1985. Petitioner then filed a petition for a writ ofcertiorari in the Supreme Court of the United States whichwas denied on January 21, 1986. Messer v. Kemp, ___ U.S. ___, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). On June 17, 1986, an order was signed setting a new execution time frame beginning at noon on July 2, 1986, andending at *1038 noonon July 9, 1986. Petitioner filed a petition for habeas corpus reliefin the Superior Court of Butts County, Georgia on June 26,1986, raising five allegations, including the allegation thathe had been denied funds for an independent psychiatric examination and that the deathpenalty wasapplied inadiscriminatory fashion. Noevidence was proffered tothe state habeas corpus court bythepetitioner, nor didpetitioner assert that any was available. On June 27, 1986, respondent filed a motion to dismiss the petition. At 8:00 a.m. on that day, a hearing was held before the Honorable Hal Craigon the petition,request for a stay and motion to dismiss. At 3:10 p.m. on that date, an order wasfiled denying the stay,dismissing the petition as successive as to four counts and finding the remaining count to be without merit. Petitioner filed a notice of appeal and an application for certificate of probable cause to appeal that afternoon. OnMondaymorning, June 30,1986, petitioner filed an amendmentto his application fora certificate ofprobable cause. Respondent filed a response to the application. On that same date, the Supreme Court of Georgia denied theapplication for a certificateof probable cause to appeal.Petitioner then filed the current petitionwith this court on July1, 1986. This court orally granted petitioner's motion to proceed in forma pauperis. DISCUSSION Petitioner contends that he was convicted and sentenced to death in violation of the Georgia Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United StatesConstitution. Petitioner argues thatunderAkev. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985) he was denied funds to have an independent psychiatrist to aid in hisdefense, in violation of his rightsunder the Fourteenth Amendment. (Petition for Writ of Habeas Corpus custody("Petition")). Petitioner also argues that the imposition ofthe death penaltyviolates the Eighth Amendment's prohibition ofcruel and unusual punishment becauseit will be applied in a racially discriminatorymanner. As an initial matter, the court finds that petitioner's claim thatimposition of the death penalty violates the EighthAmendment's prohibition of cruel and unusual punishment because itwill be applied in a raciallydiscriminatory manner, is withoutmerit and cannot provide a basis for the relief sought. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc).[1] Respondent pleads abuse of thewrit underRule 9(b)of the Rules Governing § 2254 cases. Specifically, respondent asserts that all claims raised in the instant petition havebeen raised in a priorfederal habeas corpus petition. (Respondent's Answer/Response, "Response").[2]Therefore, todetermine whether anyground forrelief is properly before this court, the court must considerwhether petitioner has abused the writin bringing a successive petition. Thiscourt holdsthat petitionerabused the writ in raising his Ake (denial ofindependentpsychiatricevaluation) claim in his second habeas petition. Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or differentgroundsforrelief and if the prior determination was on the merits, or if new and different grounds	647 F.Supp. 1035 (1986) James MESSER, Jr., Appellant, _v._ Ralph KEMP, Warden, Georgia Diagnostic _and_ Classification Center, Respondent. _Civ._ A. No. C86-173R. United States _District_ _Court,_ N.D. Georgia, Rome Division. July 7, _1986._ _1036_ Howard J. Manchel, _Atlanta,_ Ga., for _appellant._ Mary _Beth_ _Westmoreland,_ _Asst._ Atty. Gen., Atlanta, Ga., for respondent. ORDER _ROBERT_ _H._ _HALL,_ _District_ Judge. _James_ Messer, Jr., _who_ is scheduled to be _executed_ before July 9, 1986, _petitions_ _this_ court for a writ of Habeas Corpus, _pursuant_ to 28 U.S.C. _§_ 2254. This court has stayed petitioner's _execution_ pending a _full_ review of the _issues_ _raised_ _by_ _the_ _petition._ For the reasons set forth herein, the court _DENIES_ prisoner's petition, and _accordingly_ lifts the stay of execution. FACTS Petitioner, James E. _Messer,_ Jr., _was_ indicted by the grand jury _of_ _Polk_ County, _Georgia,_ during the _November_ _Term,_ 1979, for kidnapping _with_ bodily injury and for the murder of Rhonda Tanner. A _special_ plea _of_ insanity was _filed_ on behalf of the petitioner. _After_ two subsequent state sponsored psychiatric examinations established that petitioner was mentally competent to stand trial, _the_ special _plea_ _of_ insanity was withdrawn. At _his_ trial _petitioner_ pleaded not quilty. Following _a_ trial _by_ jury _on_ February 7, 1980, petitioner _was_ _found_ guilty on both _charges_ _and_ sentenced to _death_ _for_ both offenses. Petitioner received the death penalty for murder after the jury found the presence of two statutory aggravating circumstances, (1) that the murder was _committed_ _during_ _the_ course of another _capital_ felony, the kidnapping with bodily injury, and (2) _that_ the murder was _outrageously_ _and_ wantonly vile, horrible or _inhuman_ in that _it_ involved torture _to_ the victim. The jury found one aggravating circumstance with respect to _the_ kidnapping with bodily injury _charge,_ that the _crime_ _was_ _outrageously_ or _wantonly_ _vile,_ horrible or inhuman in that it involved aggravated battery and torture to the victim. The death sentence was imposed 1037 _on_ February _8,_ 1980. Petitioner's motion for a new _trial_ was denied _after_ hearing on May 20, 1980. On direct appeal, the petitioner raised six issues, _including_ denial of the motion _for_ an independent psychiatric examination. The Supreme Court _of_ Georgia _considered_ these allegations and _also_ _conducted_ a sentence review, finding that the evidence supported _the_ verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the _death_ _penalty_ was not disproportionate and that the charge _at_ _the_ _sentencing_ phase was proper. Thus, _the_ court affirmed both the convictions _and_ _the_ sentences. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981). A motion for rehearing was denied _on_ March _18,_ 1981. Petitioner subsequently _filed_ a petition _for_ a writ of _certiorari_ _in_ the _Supreme_ Court _of_ the United States challenging the denial of an independent psychiatric _examination._ This petition was denied _on_ October 5, 1981. Messer v. Georgia, 454 U.S. 882, 102 _S.Ct._ 367, _70_ L.Ed.2d 193 (1981). Petitioner then filed _a_ petition _for_ habeas _corpus_ _relief_ _in_ the _Superior_ Court of Butts County, Georgia, on January _5,_ 1982. On or about _January_ 25, 1982, the petitioner _filed_ an amendment to the petition and _a_ brief in support. Petitioner did not raise the denial _of_ the motion for independent psychiatric examination. _The_ state _habeas_ corpus _court_ denied relief without _a_ hearing on February 23, 1982. Petitioner's Application for Certificate of Probable Cause to Appeal _was_ _denied_ on April 20, 1982. _Subsequently,_ a petition for a writ of certiorari was filed _in_ which the petitioner challenged the admission of his confession and asserted that he was _arrested_ without probable cause. _Certiorari_ was _denied_ on October _4,_ 1982. Messer v. Zant, 459 _U.S._ 882, 103 S.Ct. 182, 74 L.Ed.2d 148, rehng. _den.,_ sub. _nom,_ Cape _v._ _Zant,_ _459_ U.S. 1059, 103 S.Ct. 479, _74_ L.Ed.2d 626 (1982). Petitioner _filed_ an application for habeas corpus relief in _the_ United States District Court _for_ the Northern _District_ of Georgia, Rome _Division,_ on November 23, 1982. In _that_ petition, the petitioner raised the _denial_ by the trial court of _the_ motion for an independent psychiatric examination _and_ funds for an expert. _The_ case was transferred _to_ the Atlanta _Division_ _and_ an evidentiary _hearing_ was held before United States Magistrate Joel M. Feldman on August 5, 1983. On February _1,_ 1984, the magistrate entered a report and _recommendation_ recommending that relief be denied as to the conviction, but _suggesting_ that relief be granted as to the sentencing phase finding that counsel was ineffective during the closing argument at the _sentencing_ phase. On _March_ 30, 1984, _this_ court entered _an_ order adopting all portions of _the_ magistrate's _report_ and recommendation except that portion _dealing_ _with_ the effectiveness of counsel at the sentencing _phase._ This _court_ concluded that petitioner had _failed_ to _show_ any prejudice resulting from this allegation. Messer v. Francis, No. C82-419A _(N.D.Ga._ March 30, 1984) (Hall, J.). This court also _ruled_ on _certain_ other allegations _not_ _addressed_ by the magistrate _and_ denied a certificate for probable cause to appeal. Id. _The_ Eleventh _Circuit_ Court of _Appeals_ granted the certificate on _June_ 1, 1984. Subsequently, a panel _of_ the Eleventh Circuit Court of Appeals affirmed _this_ _court's_ decision _denying_ habeas corpus relief _in_ an _opinion_ dated April 30, 1985. _Messer_ v. _Kemp,_ 760 F.2d _1080_ (11th Cir. _1985)._ Only three _issues_ were raised on appeal; the denial of the motion for _a_ mistrial, _the_ allegation of ineffective assistance of counsel and _the_ question of whether jury _instructions_ were correct on the kidnapping with bodily injury charge. A _petition_ for rehearing en banc _was_ _denied_ on _August_ 23, 1985. Petitioner then filed _a_ petition _for_ a _writ_ of certiorari in the Supreme Court _of_ the United States which was denied on January _21,_ _1986._ Messer v. Kemp, _____ U.S. ___, 106 S.Ct. 864, 88 _L.Ed.2d_ 902 (1986). On June _17,_ 1986, an order was _signed_ setting a new execution time frame beginning at noon on July 2, _1986,_ and ending at *1038 noon on July 9, 1986. Petitioner filed _a_ petition for habeas corpus relief in the Superior Court _of_ Butts County, Georgia _on_ _June_ 26, 1986, raising five allegations, including _the_ allegation _that_ _he_ had been denied funds for an independent psychiatric examination and that the death penalty was _applied_ _in_ a _discriminatory_ fashion. No evidence was proffered to the state habeas corpus court by the petitioner, nor did petitioner _assert_ that _any_ was _available._ On June 27, 1986, respondent filed a motion _to_ dismiss the petition. At 8:00 a.m. on that day, a hearing _was_ _held_ before the _Honorable_ Hal Craig on the petition, _request_ _for_ _a_ stay and motion to dismiss. At 3:10 p.m. on that date, _an_ order was filed _denying_ _the_ stay, dismissing the petition as successive as to _four_ _counts_ and finding the remaining count to be without merit. Petitioner filed a _notice_ _of_ appeal and an application for certificate of _probable_ _cause_ _to_ appeal that _afternoon._ _On_ Monday morning, _June_ 30, 1986, petitioner filed an amendment _to_ his application _for_ a certificate of probable cause. Respondent _filed_ _a_ response _to_ _the_ application. On _that_ same date, the Supreme Court of Georgia denied the application for a _certificate_ of _probable_ _cause_ to appeal. Petitioner then filed the current petition with this court on _July_ 1, _1986._ _This_ _court_ orally granted petitioner's motion _to_ proceed _in_ forma pauperis. _DISCUSSION_ _Petitioner_ contends that he was convicted _and_ sentenced to death in _violation_ of the _Georgia_ Constitution and the Fifth, _Sixth,_ _Eighth_ and _Fourteenth_ Amendments to the United States Constitution. Petitioner argues _that_ under Ake v. Oklahoma, _470_ U.S. _68,_ 105 _S.Ct._ 1087, 84 _L.Ed.2d_ _53_ _(1985)_ he _was_ denied funds to have an independent psychiatrist to aid _in_ his defense, in violation _of_ his rights _under_ _the_ _Fourteenth_ Amendment. (Petition for Writ _of_ Habeas _Corpus_ custody ("Petition")). Petitioner also argues that the imposition of _the_ death penalty violates the _Eighth_ _Amendment's_ prohibition of cruel and unusual _punishment_ because it will be applied in a racially discriminatory manner. As an initial matter, the court _finds_ that petitioner's claim _that_ imposition of the death penalty violates the _Eighth_ Amendment's prohibition _of_ cruel and unusual punishment because it will be applied in a racially _discriminatory_ manner, is without merit and cannot _provide_ a basis for the relief sought. McCleskey v. Kemp, 753 F.2d _877_ (11th Cir.1985) (en banc).[1] Respondent pleads _abuse_ of the writ under _Rule_ _9(b)_ of _the_ Rules Governing § 2254 cases. Specifically, respondent asserts that all claims _raised_ in the instant petition have been raised in a _prior_ federal _habeas_ corpus petition. (Respondent's Answer/Response, "Response").[2] _Therefore,_ to determine _whether_ any ground for relief is properly before this court, the _court_ must consider whether petitioner has abused _the_ writ _in_ bringing a successive _petition._ This court holds that petitioner _abused_ the writ in raising his Ake (denial _of_ independent psychiatric _evaluation)_ claim _in_ his second habeas petition. Rule _9(b)_ of the Rules Governing _28_ U.S.C. § _2254_ _provides:_ A second or successive petition may be dismissed if the judge finds _that_ it fails to allege _new_ or _different_ grounds for relief and if _the_ prior determination was on the merits, or if new and different _grounds_
337 F.Supp. 150 (1972) CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc., et al., Intervening Plaintiffs, v. The UNITED STATES of America et al., Defendants. Civ. No. 71-C-1639. United States District Court, E. D. New York. January 20, 1972. 151 152 Louis Walters, Asst. Corp. Counsel (J. Lee Rankin, Corp. Counsel for City of New York, Peter C. Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels, of counsel), for plaintiff. Stacey L. Wallach, New York City (Tenzer, Greenblatt, Fallon & Kaplan, New York City, of counsel), for intervening plaintiff, Bush Terminal Users Ass'n. William C. Mahoney, Washington, D. C., for intervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employes. John C. McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, Albany, N. Y., for intervening plaintiff, State of New York. Lloyd H. Baker, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. Eastern District of New York, of counsel), for defendant, the United States. Theodore C. Knappen, Washington, D. C., Asst. Gen. Counsel, for defendant, Interstate Commerce Commission. G. Clark Cummings, New York City, for defendant, Bush Terminal R.R. Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief District Judge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit Judge: In this action against the United States, the Interstate Commerce Commission, Bush Terminal Railroad and certain of the latter's officers and directors, the City of New York, joined by several intervenors, asks us to annul an order of the Interstate Commerce Commission dated December 13, 1971, in F.D. No. 25896, which authorized abandonment of the entire line of Bush Terminal Railroad Company (the Railroad) in Kings County, New York, and Hudson County, New Jersey. The order, which was effective immediately, was entered after the Railroad on December 1, 1971, had unilaterally imposed an embargo on all outgoing freight and announced that on December 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedly unseaworthy condition of its marine equipment, and after users of the Railroad had begun an action to enjoin the embargo which they considered to be an unauthorized abandonment. The Railroad terminated operation on December 13 immediately on learning of the Commission's order.[1] On December 17, the City began this action and sought a temporary restraining order, see 28 U.S.C. § 2284(3). Judge Weinstein denied this but set the City's motion for a temporary injunction for argument on December 22 before a three-judge court which he asked to have convened, 28 U.S.C. §§ 2321, 2325. At the argument, the Bush Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and the Department of Transportation of the State of New York were allowed to intervene as plaintiffs. Issuance of 153 a temporary restraining order was again refused, but we reserved decision on the motion for a temporary injunction pending the filing of the record and briefs. The Railroad, organized in 1903, is a wholly-owned subsidiary of Bush Universal, Inc., which had been known as Bush Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Bush Terminal. The line owned by the Railroad is only 1.8 miles long. This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned by Bush Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned subsidiary, Bush Terminal Company, Inc. This new subsidiary assumed its parent's obligations under the lease to the Railroad. We will generally refer to Bush Universal, Inc. and Bush Terminal Company, Inc., simply as "the Terminal Company." The Railroad, on October 23, 1969, filed an application under § 1(18) of the Interstate Commerce Act for permission to abandon the operation both of its owned and of its leased properties. Hearings were held in late June, 1970. The application was opposed by users of the service, governmental and quasi-governmental bodies and labor organizations representing the Railroad's employees. In their post-hearing briefs the City, the State, and the Users Association for the first time raised the issue that authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, the Terminal Company, of its independent obligation to operate the leased properties, an obligation that would revive upon discontinuance of operations by the lessee. See Lehigh Valley R.R. Co. Proposed Abandonment of Operation, 202 I.C.C. 659, 663 (1935); Norfolk S.R.R. Co. Receivers Abandonment, 221 I.C.C. 258, 260 (1937); Livestock Terminal Service Co. Abandonment of Operation, 257 I.C.C. 1, 7 (1944); Hoboken R.R., Whse. & S.S. Connecting Co. Operation, 257 I.C.C. 739, 743-44 (1944). The Railroad responded, correctly enough as a matter of law, see Meyers v. Famous Realty, Inc., 271 F.2d 811, 814-815 (2 Cir. 1959), cert. denied, 362 U.S. 910, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960), that this doctrine applies only when the lessor was a "carrier by railroad," see 49 U.S.C. § 1(18), when the lease was made; it claimed that the Terminal Company was not. On June 3, 1971, the examiner rendered a report recommending authorization of the abandonment. He found that, despite various promotional efforts, the Railroad's traffic had seriously declined, due to motor vehicle competition, and the moving of industries away from the Brooklyn area served by it; that the Railroad "has sustained substantial losses for many years, and prospects for reversing the decline in traffic and for profitable operations are very slim;" and that the property owned and leased by the Railroad was in such poor condition that an expenditure by it of approximately $930,000 would be required for 154 rehabilitation of roadway and marine equipment.[2] With the Railroad's long record of losses and negative net worth, these funds could not be obtained except from the parent. The examiner concluded that, despite undoubted hardship to users, which might require many to move, with consequent loss of employment opportunities and revenues to the City and the State, there was no alternative to authorizing abandonment by the Railroad. Turning to the legal argument concerning the obligations of Terminal Company as lessor, the examiner concluded that this raised a factual issue of the lessor's earlier common carrier status, which had never previously been resolved and which could be tested in an action by the objecting parties under § 1(18) and (20). Thus, he declined to condition abandonment by the Railroad upon resumption of operation of the leased properties by the Terminal Company. Following the Commission's general practice in cases of complete abandonment where neither the carrier nor a parent carrier realizes economic advantages other than the termination of losses,[3] see Chicago, A. & S.R.R. Co. Receiver Abandonment, 261 I.C.C. 646, 652 (1946); Okmulgee Northern Ry. Co. Abandonment, 320 I.C.C. 637, 645-646 (1964); Manifestee & Repton R.R. Co. Abandonment, 324 I.C.C. 489, 492 (1964); Tennessee Central Ry. Co. Abandonment of Operations, 333 I.C.C. 443, 453-454 (1968), he declined to impose employee protective conditions. Exceptions and a reply thereto by the Railroad were filed with the Commission in early August. The City's, the Unions' and the Users Association's exceptions requested oral argument. On November 3, the Users Association filed a petition for leave to file a petition to reopen the hearing to include further testimony concerning the willingness of users to pay a surcharge of $25 per car. *155 The Railroad replied by letter. On December 13, the Commission, acting by Division 3,	337 f. supp. 150 ( 1972 ) city of new york, plaintiff, and bush terminal railroad users association, inc., et al., intervening plaintiffs, v. the united daughters of america et al., defendants. civ. no. 71 - c - 94. united states district court, e. d. new york. january 20, 1972. * 151 * john louis walters, asst. corp. counsel ( j. lee rankin, corp. counsel for city of new york, peter c. demetri and eleanor oppenheimer, asst. corp. counsels, of counsel ), for plaintiff. stacey l. wallach, new york city ( tenzer, greenblatt, fallon & kaplan, new york city, of counsel ), for intervening plaintiff, bush terminal users ass ' n. william c. mahoney, washington, d. c., for intervening plaintiffs, united transportation union and brotherhood of railway, airline & steamship clerks, freight handlers, express & station employes. john c. mctiernan, asst. counsel, n. y. state dept. of transportation, albany, n. y., for intervening plaintiff, state of new york. henry h. baker, asst. u. s. atty. ( robert a. morse, u. s. atty. eastern district of new york, of counsel ), for defendant, the united states. theodore c. knappen, washington, d. c., asst. gen. counsel, for defendant, interstate commerce commission. g. lloyd cummings, new york city, for defendant, bush terminal r. r. before friendly, chief circuit judge, mishler, chief district judge, and weinstein, district judge. friendly, chief circuit judge : in this action against the united states, the interstate commerce commission, bush terminal railroad and certain of the latter ' s officers and directors, city city of new york, joined by several intervenors, asks us to annul an order of the interstate commerce commission dated december 13, 1971, in f. d. no. 25896, formally declares abandonment of the lehigh line of bush terminal railroad company ( the railroad ) in kings county, new york, and hudson county, new jersey. the order, which was effective immediately, was entered after the railroad on december 1, 1971, had unilaterally imposed an embargo on all outgoing freight and conductors that on december 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedly unseaworthy condition of its marine equipment, and after users of the railroad had begun an action to enjoin the embargo which they considered to be an unauthorized abandonment. the railroad terminated operation on december 13 immediately on learning of the commission ' s order. [ 1 ] on december 17, the city began this action and sought a temporary restraining order, see 28 u. s. c. § 2284 ( 3 ). judge weinstein denied this but set the city ' s motion for a temporary injunction for argument on december 22 before a three - judge court which he asked to have convened, 28 u. s. c. § § 2321, 2325. at the argument, the bush terminal users association, inc., united transportation union, the brotherhood of railway, airline and steamship clerks, freight handlers, express and station employes, and the department of transportation of the state of new york were allowed to intervene as plaintiffs. issuance of * 153 a temporary restraining order was again refused, but we reserved decision on the motion for a temporary injunction pending the filing of the record and briefs. the railroad, organized in 1903, is a wholly - owned subsidiary of bush universal, inc., which had been known as bush terminal company until july, 1968. the purpose of establishing the railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in brooklyn, new york, by bush terminal. the line owned by the railroad is only 1. 8 miles long. this connects with some 13. 56 miles of track in brooklyn and car - float and towage facilities that are operated by the railroad but are owned and had previously been operated by bush terminal, allegedly as agent for the railroad and for trunk line carriers serving new york harbor. in bush terminal r. r. co. operation, 257 i. c. c. 375 ( 1944 ), the commission authorized the railroad, pursuant to § 1 ( 18 ) of the interstate commerce act, to extend its railroad by acquiring through lease the trackage and other facilities owned by bush terminal. the lease took effect on january 1, 1945. since then the railroad, as a common carrier, has moved cars between industries in and near the bush terminal in brooklyn across new york harbor to and from various trunk line terminals in new jersey. in december, 1968, bush terminal, having changed its name and become a conglomerate, controlled by universal consolidated industries, inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the railroad operates, to a newly organized, wholly owned subsidiary, bush terminal company, inc. this new subsidiary assumed its parent ' s obligations under the lease to the railroad. we will generally refer to bush universal, inc. and bush terminal company, inc., simply as " the terminal company. " the railroad, on october 23, 1969, filed an application under § 1 ( 18 ) of the interstate commerce act for permission to abandon the operation both of its owned and of its leased properties. hearings were held in late june, 1970. the application was opposed by users of the service, governmental and quasi - governmental bodies and labor organizations representing the railroad ' s employees. in their post - hearing briefs the city, the state, and the users association for the first time raised the issue that authorization of abandonment by the lessee, the railroad, would not relieve the lessor, the terminal company, of its independent obligation to operate the leased properties, an obligation that would revive upon discontinuance of operations by the lessee. see lehigh valley r. r. co. proposed abandonment of operation, 202 i. c. c. 659, 663 ( 1935 ) ; norfolk s. r. r. co. receivers abandonment, 221 i. c. c. 258, 260 ( 1937 ) ; livestock terminal service co. abandonment of operation, 257 i. c. c. 1, 7 ( 1944 ) ; hoboken r. r., whse. & s. s. connecting co. operation, 257 i. c. c. 739, 743 - 44 ( 1944 ). the railroad responded, correctly enough as a matter of law, see meyers v. famous realty, inc., 271 f. 2d 811, 814 - 815 ( 2 cir. 1959 ), cert. denied, 362 u. s. 910, 80 s. ct. 681, 4 l. ed. 2d 619 ( 1960 ), that this doctrine applies only when the lessor was a " carrier by railroad, " see 49 u. s. c. § 1 ( 18 ), when the lease was made ; it claimed that the terminal company was not. on june 3, 1971, the examiner rendered a report recommending authorization of the abandonment. he found that, despite various promotional efforts, the railroad ' s traffic had seriously declined, due to motor vehicle competition, and the moving of industries away from the brooklyn area served by it ; that the railroad " has sustained substantial losses for many years, and prospects for reversing the decline in traffic and for profitable operations are very slim ; " and that the property owned and leased by the railroad was in such poor condition that an expenditure by it of approximately $ 930, 000 would be required for * 154 rehabilitation of roadway and marine equipment. [ 2 ] with the railroad ' s long record of losses and negative net worth, these funds could not be obtained except from the parent. the examiner concluded that, despite undoubted hardship to users, which might require many to move, with consequent loss of employment opportunities and revenues to the city and the state, there was no alternative to authorizing abandonment by the railroad. turning to the legal argument concerning the obligations of terminal company as lessor, the examiner concluded that this raised a factual issue of the lessor ' s earlier common carrier status, which had never previously been resolved and which could be tested in an action by the objecting parties under § 1 ( 18 ) and ( 20 ). thus, he declined to condition abandonment by the railroad upon resumption of operation of the leased properties by the terminal company. following the commission ' s general practice in cases of complete abandonment where neither the carrier nor a parent carrier realizes economic advantages other than the termination of losses, [ 3 ] see chicago, a. & s. r. r. co. receiver abandonment, 261 i. c. c. 646, 652 ( 1946 ) ; okmulgee northern ry. co. abandonment, 320 i. c. c. 637, 645 - 646 ( 1964 ) ; manifestee & repton r. r. co. abandonment, 324 i. c. c. 489, 492 ( 1964 ) ; tennessee central ry. co. abandonment of operations, 333 i. c. c. 443, 453 - 454 ( 1968 ), he declined to impose employee protective conditions. exceptions and a reply thereto by the railroad were filed with the commission in early august. the city ' s, the unions ' and the users association ' s exceptions requested oral argument. on november 3, the users association filed a petition for leave to file a petition to reopen the hearing to include further testimony concerning the willingness of users to pay a surcharge of $ 25 per car. * 155 the railroad replied by letter. on december 13, the commission, acting by division 3,	337 F. Supp. 150 (1972) CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc. , et al. , Intervening Plaintiffs, v. The UNITED STATES of America et al. , Defendants. Civ. No. 71 - C - 1639. United States District Court, E. D. New York. January 20, 1972. * 151 * 152 Louis Walters, Asst. Corp. Counsel (J. Lee Rankin, Corp. Counsel for City of New York, Peter C. Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels, of counsel ), for plaintiff. Stacey L. Wallach, New York City (Tenzer, Greenblatt, Fallon & Kaplan, New York City, of counsel ), for intervening plaintiff, Bush Terminal Users Ass ' n. William C. Mahoney, Washington, D. C. , for intervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employes. John C. McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, Albany, N. Y. , for intervening plaintiff, State of New York. Lloyd H. Baker, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. Eastern District of New York, of counsel ), for defendant, the United States. Theodore C. Knappen, Washington, D. C. , Asst. Gen. Counsel, for defendant, Interstate Commerce Commission. G. Clark Cummings, New York City, for defendant, Bush Terminal R. R. Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief District Judge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit Judge: In this action against the United States, the Interstate Commerce Commission, Bush Terminal Railroad and certain of the latter ' s officers and directors, the City of New York, joined by several intervenors, asks us to annul an order of the Interstate Commerce Commission dated December 13, 1971, in F. D. No. 25896, which authorized abandonment of the entire line of Bush Terminal Railroad Company (the Railroad) in Kings County, New York, and Hudson County, New Jersey. The order, which was effective immediately, was entered after the Railroad on December 1, 1971, had unilaterally imposed an embargo on all oJtgo(ng freight and announced that on December 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedly unseaworthy condition of its marine equipment, and after users of the Railroad had begun an action to enjoin the embargo which they considered to be an unauthorized abandonment. The Railroad terminated operation on December 13 immediately on learning of the Commission ' s order. [1] On December 17, the City began this action and sought a temporary restraining order, see 28 U. S. C. § 2284 (3 ). Judge Weinstein denied this but set the City ' s motion for a temporary injunction for argument on December 22 before a three - judge court which he asked to have convened, 28 U. S. C. § § 2321, 2325. At the argument, the Bush Terminal Users Association, Inc. , United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and the Department of Transportation of the State of New York were allowed to intervene as plaintiffs. Issuance of * 153 a temporary restraining oFdsr was again refused, but we reserved decision on the motion for a temporary injunction pending the filing of the record and briefs. The Railroad, organized in 1903, is a wholly - owned subsidiary of Bush Universal, Inc. , which had been known as Bush Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Bush Terminal. The line owned by the Railroad is only 1. 8 miles long. This connects with some 13. 56 miles of track in Brooklyn and car - float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R. R. Co. Operation, 257 I. C. C. 375 (1944 ), the Commission authorized the Railroad, pursuant to § 1 (18) of the Interstate Commerce Act, to extend its railroad by acquiring thrluYh lease the trackage and other facilities owned by B^Ch Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc. , a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned subsidiary, Bush Terminal Company, Inc. This new subsidiary assumed its parent ' s obligations under the lease to the Railroad. We will generally refer to Bush Un&verswl, Inc. and Bush Terminal Company, Inc. , simply as " the Terminal Company. " The Railroad, on October 23, 1969, filed an application under § 1 (18) of the Interstate Commerce Act for permission to abandon the operation both of its owned and of its leased properties. Hearings were held in late June, 1970. The application was opposed by users of the service, governmental and quasi - governmental bodies and labor organizations representing the Railroad ' s employees. In their post - hearing briefs the City, the State, and the Users Association for the first time raised the issue that authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, the Terminal Company, of its independent obligation to operate the leased properties, an ob;iNation that would revive upon discontinuance of operations by the lessee. See Lehigh Valley R. R. Co. Proposed Abandonment of Operation, 202 I. C. C. 659, 663 (1935 ); Norfolk S. R. R. Co. Receivers Abandonment, 221 I. C. C. 258, 260 (1937 ); Livestock Terminal Service Co. Abandonment of Op$ratioB, 257 I. C. C. 1, 7 (1944 ); Hoboken R. R. , Whse. & S. S. Connecting Co. Operation, 257 I. C. C. 739, 743 - 44 (1944 ). The Railroad responded, correctly enough as a matter of law, see Meyers v. Famous Realty, Inc. , 271 F. 2d 811, 814 - 815 (2 Cir. 1959 ), cert. denied, 362 U. S. 910, 80 S. Ct. 681, 4 L. Ed. 2d 619 (1960 ), that this doctrine applies only when the lessor was a " carrier by railroad, " see 49 U. S. C. § 1 (18 ), when the lease was made; it claimed that the Terminal Company was not. On June 3, 1971, the examiner rendered a report recommending authorization of the abandonment. He found that, despite various promotional efforts, the Railroad ' s traffic had seriously declined, due to motor vehicle competition, and the moving of industries away from the Brooklyn area served by it; that the Railroad " has sustained substantial losses for many years, and prospects for reversing the decline in traffic and for profitable operations are very slim; " and that the property owned and leased by the Railroad was in such poor condition that an expenditure by it of approximately $ 930, 000 would be required for * 154 rehabilitation of roadway and marine equipment. [2] With the RxilroWd ' s long record of losses and negative net #oeth, these funds could not be obtained except from the parent. The examiner concluded that, despite undoubted hardship to users, which might require many to move, with consequent loss of employment opportunities and revenues to the City and the State, there was no alternative to authorizing abandonment by the Railroad. Turning to the legal argument concerning the obligations of Terminal Company as lessor, the examiner concluded that this raised a factual issue of the lessor ' s earlier common carrier status, which had never previously been resolved and which could be tested in an action by the objecting parties under § 1 (18) and (20 ). Thus, he declined to condition abandonment by the Railroad upon resumption of operation of the leased properties by the Terminal Company. Following the Commission ' s general practice in cases of complete abandonment where neither the carrier nor a parent carrier realizes economic advantages other than the termination of losses, [3] see Chicago, A. & S. R. R. Co. Receiver Abandonment, 261 I. C. C. 646, 652 (1946 ); Okmulgee Northern Ry. Co. Abandonment, 320 I. C. C. 637, 645 - 646 (1964 ); Manifestee & Repton R. R. Co. Abandonment, 324 I. C. C. 489, 492 (1964 ); Tennessee Central Ry. Co. Abandonment of Operations, 333 I. C. C. 443, 453 - 454 (1968 ), he declined to impose employee protective conditions. Exceptions and a reply thereto by the Railroad were filed with the Commission in early August. The City ' s, the Unions ' and the Users Association ' s exceptions requested oral argument. On November 3, the Users Association filed a petition for leave to file a petition to reopen the hearing to include further testimony concerning the willingness of users to pay a surcharge of $ 25 per car. * 155 The Railroad replied by letter. On December 13, the Commission, acting by DivKsiPn 3,	337 150 (1972) CITY OF NEW YORK, Plaintiff, and Terminal Inc., et al., Intervening Plaintiffs, v. The UNITED STATES of America et al., Civ. No. 71-C-1639. United District Court, E. D. New York. January 1972. 151 152 Louis Walters, Asst. Corp. Counsel (J. Lee Rankin, Counsel for City of New York, Peter C. Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels, of for plaintiff. Stacey L. Wallach, New York City (Tenzer, Greenblatt, Fallon & Kaplan, New York City, counsel), for intervening plaintiff, Bush Terminal Users Ass'n. William C. Mahoney, Washington, D. for intervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Employes. John C. McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, N. Y., intervening plaintiff, State New York. Lloyd H. Baker, Asst. U. S. Atty. (Robert A. Morse, U. S. Eastern District of New York, of counsel), defendant, the United States. Theodore Knappen, Washington, D. C., Asst. Gen. Counsel, for defendant, Interstate Commerce Commission. G. Clark Cummings, New York City, for defendant, Bush Terminal R.R. Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief Judge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit Judge: In this action against the United States, the Interstate Commerce Commission, Terminal Railroad and certain of latter's officers directors, the City New York, joined by several intervenors, asks us to annul an order of the Interstate Commission dated 13, 1971, in F.D. No. 25896, which authorized abandonment of entire line of Bush Terminal Railroad Company (the Railroad) in Kings County, New York, and Hudson County, Jersey. The order, which was effective immediately, entered after the on December 1, 1971, had unilaterally imposed an embargo all outgoing freight and announced that on December 15, 1971, it would impose a similar embargo on all freight, of the allegedly unseaworthy condition of its marine equipment, and after users of Railroad had begun an action to enjoin the embargo they to be an unauthorized abandonment. The Railroad terminated operation on December 13 immediately on learning of the Commission's order.[1] On December 17, City began this action and sought a temporary restraining order, 28 U.S.C. § 2284(3). Judge Weinstein denied this but set the City's motion for a temporary injunction argument on 22 before a three-judge court which he asked to have convened, 28 U.S.C. §§ 2321, 2325. At the argument, the Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, the Department of the State of New York were allowed to intervene as plaintiffs. Issuance of 153 a restraining order was again refused, we reserved decision on motion for a temporary injunction pending the filing the record and briefs. The Railroad, organized in 1903, is a wholly-owned subsidiary of Universal, Inc., which had been known as Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Terminal. line owned by the Railroad only long. This connects with some 13.56 miles of track in Brooklyn car-float and towage facilities that are operated the Railroad but are owned and had previously been operated by Bush allegedly as agent for the Railroad and for trunk line serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned Bush Terminal. The lease took effect on January 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk terminals in New Jersey. December, 1968, having changed its and become a conglomerate, controlled by Consolidated Industries, Inc., a still conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned Bush Terminal Inc. This new subsidiary assumed its parent's obligations under the to the Railroad. We will generally refer to Bush Universal, Inc. and Bush Terminal Company, Inc., simply as "the Terminal The Railroad, on October 23, 1969, an application under 1(18) of the Interstate Commerce Act for permission to abandon the both of its of its leased properties. Hearings were held in June, 1970. The application by the service, governmental and quasi-governmental bodies and organizations representing the employees. In their post-hearing briefs the City, the State, and the Users Association for the first time raised issue that authorization abandonment by the lessee, the Railroad, would not lessor, the Company, of its independent obligation to the leased properties, an obligation that would revive upon discontinuance of operations lessee. See Lehigh Valley R.R. Co. Abandonment of Operation, 202 659, 663 Norfolk S.R.R. Co. Receivers Abandonment, 221 I.C.C. 258, 260 (1937); Livestock Terminal Service Co. Abandonment Operation, 257 I.C.C. 1, 7 (1944); Hoboken R.R., Whse. & S.S. Connecting Co. 257 I.C.C. 739, 743-44 (1944). The Railroad responded, correctly enough as a matter of law, see Meyers v. Famous Realty, Inc., 271 F.2d 811, 814-815 (2 Cir. 1959), cert. denied, 362 U.S. 80 S.Ct. 681, 4 619 (1960), that this doctrine applies only when lessor was a "carrier railroad," see U.S.C. § 1(18), when the lease was made; claimed that the Company was not. On June 3, the rendered a report recommending of the abandonment. He found that, despite various efforts, the Railroad's traffic had seriously declined, due to motor competition, and the moving of industries away from the Brooklyn area served by it; that Railroad "has sustained substantial losses for many years, prospects for reversing the decline in traffic and for profitable are very slim;" and that the property owned and leased by the Railroad was such poor condition that an expenditure by it of approximately $930,000 would be required 154 rehabilitation of roadway and marine equipment.[2] With the Railroad's long record of and negative net worth, these funds could not be except from the parent. examiner concluded despite undoubted hardship users, which might require many to move, with consequent loss of employment opportunities and revenues to the City and the State, there was no alternative to authorizing abandonment by the Railroad. Turning to the legal argument concerning the obligations Terminal Company as lessor, the examiner concluded that this raised a factual of the lessor's common carrier status, which had never previously been resolved and which could be tested in an action by the objecting parties § 1(18) and (20). Thus, he declined to condition abandonment by the Railroad upon resumption of operation of the leased properties by the Company. the Commission's general practice in cases of complete abandonment where neither the carrier nor a parent carrier realizes economic other than the termination of losses,[3] see Chicago, A. & S.R.R. Co. Receiver Abandonment, 261 I.C.C. 646, 652 Okmulgee Northern Ry. Co. Abandonment, I.C.C. 637, 645-646 (1964); Manifestee & Repton R.R. Co. Abandonment, 324 I.C.C. 489, (1964); Tennessee Central Abandonment of Operations, 333 I.C.C. 443, 453-454 (1968), he declined to impose employee protective conditions. Exceptions and a thereto by the Railroad were with the Commission early August. The City's, the Unions' and the Users exceptions requested oral argument. On November 3, the Users Association filed a petition for to file a petition to reopen hearing include further testimony concerning willingness of users pay a surcharge of $25 per car. *155 The Railroad replied by letter. On December 13, the Commission, acting by Division 3,	337 F.SUpp. 150 (1972) citY oF nEw york, plaINTIFf, And BusH TErMinaL raIlroAd UseRs ASSOCIATIon, INC., Et al., iNTervENInG PlaiNTifFS, V. tHe uNiTED stATES of aMeRiCA et AL., defeNDaNts. cIV. no. 71-C-1639. UnItED StAtES DIsTricT cOURt, E. d. New york. JAnUaRy 20, 1972. 151 152 LouIS WALTERS, aSST. COrp. coUNSEl (J. LeE rAnkIn, cORP. CoUNsel fOr ciTY OF new yoRK, pEteR c. DemeTRI aNd eleANoR OpPeNheimER, AsST. CoRp. CoUNseLs, OF couNsel), fOR plaiNTIFF. sTACeY L. wAllACh, NEW York city (TenZEr, grEEnBLAtt, fALlon & KaplAN, New YOrK ciTY, oF COUnSEl), fOr IntERVeNINg PLaintiFF, busH TeRmINAL uSerS ASS'N. wilLiaM c. MaHoNeY, wASHinGtON, D. C., fOr INTeRvENIng PLAiNTIfFs, uNITEd TRanSpoRtaTIon UNIon anD brOthERHOOd OF railWay, aIRLInE & stEaMShiP clerKs, frEighT HAndLerS, Express & staTIOn empLOyes. JohN c. mCTiErNAN, aSSt. coUNsEl, n. y. sTate DEPT. Of tRaNspOrtaTion, ALBAny, n. Y., For iNtErVeNInG PlaiNTIfF, StAtE of New YorK. lLOyd h. BakEr, aSST. U. S. aTTy. (RObErt a. MorsE, U. S. aTTy. eAStErn disTrIcT oF nEW yORK, oF CoUNseL), FOR DefeNdAnt, the uniTED StATeS. tHEODore c. kNaPpEN, wasHInGton, d. c., ASSt. gEn. cOUNSel, For deFeNDanT, iNTErSTATE ComMErce cOMMIsSIOn. G. CLArk CUmmiNgs, NeW yOrk CitY, foR DEFEnDAnT, Bush tERminAl R.R. bEfORE fRIenDLy, Chief cIrcuIt jUDge, Mishler, cHIEf DIStRICT JUdge, AnD WeINSteIn, DIStRiCT JUDGe. fRIEndLY, ChIeF ciRCUit juDgE: In THIS ActIoN aGaInSt the uNited States, tHE iNTeRSTATe coMMerce ComMiSsiON, BuSh teRmINAl RAiLroaD ANd CERtaiN OF The latter's OfFICErs ANd DiRecTORS, THe CIty oF new YORk, JOiNED By sEveRAL InTerveNOrS, ASks Us to AnnUl AN oRDer OF The INTErSTaTE COMmERcE COmMissION DATEd deCeMbEr 13, 1971, iN f.d. NO. 25896, WhIcH AuthORizED ABANdonment oF tHe EntIRE LIne oF BUsH TerMInal RaiLROAD COMPany (tHE RAiLrOad) IN kIngs CoUnty, neW yorK, aND hUdSOn COunTy, new jERSey. THE orDeR, WhiCH Was EfFectiVe iMmEDiaTELY, WAS eNtEred AFtER thE RaiLroad on deCEmber 1, 1971, HAd UnILateRAllY ImPosed AN embArGo On alL outgoing freighT aND ANnOUNced tHAT On decEmber 15, 1971, it wOUld iMPosE a siMILAr EmBArGO oN alL iNcOmINg FREiGHT, BECauSE Of THe AllEgedly UNSEAwOrtHY cONdiTion Of ITS MarIne EQUipmenT, And aFTEr uSErs oF the rAiLROaD HAd BeGUn An aCTiOn to ENjoIN tHe EmBarGO WhiCH tHEy COnSidereD TO be aN uNaUThOrIZEd AbanDoNMENt. thE RaIlroAD tERmINATed OperaTiON on deceMbEr 13 iMMedIaTelY On lEaRnInG Of tHe coMmisSIOn'S oRDeR.[1] oN dEcEmBeR 17, The cItY BegAN ThIS acTIOn AND SOughT a TeMpOrAry ReSTrAiNIng OrDeR, sEE 28 u.S.c. § 2284(3). JUDgE WeINStEIN dEnieD thIs buT sEt THE CitY's moTION FOR A teMporaRY iNjunCtiOn FoR ArgUMenT on DEceMbEr 22 BefoRE A thRee-JUdGE cOURT wHiCH hE AskEd To HaVe conVeNed, 28 U.s.c. §§ 2321, 2325. AT The ArGUMENT, The bUSH TERMINal useRS ASsoCIATion, inC., unitEd TraNspOrtatIon UNIOn, thE BrOTherhOOD oF RaIlwAy, airlINE anD STEAMsHip clERks, freIGHt haNdLERs, EXPrEss anD staTiON eMploYes, AnD tHe dEpARtMent of TRansPorTATIon OF tHe STaTe oF nEW yOrK wErE ALLOweD TO interVEne as PLAInTifFS. ISsUANCe of 153 A TEMPoraRY REsTrAiniNg ORdER was AGAIN ReFuseD, But We ResErVeD DeCiSiOn On tHE moTIon FoR A TEMPOrAry InJuncTioN peNdING THe fiLInG oF THE reCorD AnD BriefS. thE railrOaD, ORgANIZED in 1903, is a WHOlLY-oWNed SUBSiDiarY of bUSh uniVErSAL, iNC., wHICH hAd beEn KnowN As BUsh tErMInal cOmpaNy UNTiL jULY, 1968. The PURPoSE of estAbLishINg THE rAILROAd WAs to acquiRe fRANcHiSe rIghTS IN CITY STrEeTs ANd exTENd TO nEW bUILDinGs RaiLROAd SeRVIceS THeN beInG ProvIdED IN BrOOKLyN, nEW YORK, By bUsH tErMiNAL. The lINe OwNEd BY THe RAILRoAD IS oNLY 1.8 MIleS LONg. tHIS conNEctS wiTh soME 13.56 miLes of TRack IN brooKLYn anD cAR-fLOaT And tOWAGe facIlITIES tHAT Are oPERATed by thE RaiLRoAd bUt are owNeD aND haD prevIoUsLY bEEn opeRAtEd by Bush TerMInaL, aLLEGeDLy As aGeNt FOr tHe RailroaD aND FOr trUnK liNe cArRIers sErvInG NEW YOrK hArbOr. iN Bush TErMINAl R.R. CO. oPeratiON, 257 i.C.c. 375 (1944), tHE coMMiSsIon AuTHOrIZEd THE raILroAd, purSuAnT tO § 1(18) of THE intersTAtE COMmErCE acT, to eXteND iTS railroAd BY ACQuIRINg ThROuGh LeASe THe TrackaGE ANd OthEr fAcilITIEs owNeD By BUsH termInaL. The lEaSe tOok EFFect On jaNuarY 1, 1945. sINcE ThEN THE raIlROAd, as A COmMon CArRiEr, Has moVED carS bETWEEN InduStRIES iN And near ThE BusH TerMINaL in BrOOKlyn aCrosS NEW yOrk HaRbOr tO anD frOM vArioUs trUNK liNe teRminalS in nEW JERSey. in DeceMBer, 1968, bUsh tErMiNAl, hAving chANGeD its Name aND becOME a conglOmerate, cOntRolLEd by univeRSAl CoNsolIDATED iNDustrIes, inC., a stIll mORE conGLOmERATED CoNglomEraTe, CoNVEyeD All iTs ReAl esTatE, InclUdiNg SoME Of The land OVEr WHIcH tHe RaiLRoAD operates, tO A nEWly orGAnIzED, whOlLY owneD sUBSIDiaRY, BUSh termInaL company, INC. tHIS NEW sUbSIdiary aSSuMEd iTs pAReNT'S obligATIonS unDEr ThE lEAsE tO tHe RAIlrOad. WE wIlL GEnerallY rEfER TO bUSH unIvErSal, InC. aNd buSH TErMInAl cOMpANY, iNc., SImPlY as "thE TeRMINAl COMPany." THE RAiLROAd, ON OCtObeR 23, 1969, fIlED an apPLIcATiOn UnDer § 1(18) of THe inTersTaTe coMMErce aCT fOR PeRMIssIoN to aBaNDOn The opeRAtiON bOtH of ITs OwNED ANd Of ITS lEaSED PrOPErtIES. HeaRINGs WeRe heLd iN laTE jUnE, 1970. The apPLicATiON Was oPPoSEd by userS Of tHE sErvicE, GOverNMEnTaL aNd QUaSI-gOVERNMENtal bODieS ANd laBor organIzATioNS RePREsenTINg ThE RailrOAD'S empLoyees. IN their PosT-HEArIng brIeFs ThE CiTy, tHe StaTe, AND the userS aSsocIatiOn fOr The fiRsT tiMe raiSeD tHE isSUe THat AuTHORIzATiON oF AbAnDOnMenT BY THe LeSsEe, ThE raIlrOAD, WOuLd noT RELieVe The LEsSOr, The TERmInaL compANY, oF ITS InDEPEndent obLiGaTIOn tO OpErAte THE leaSeD PROpERtIES, AN oBLiGAtiOn thAt WouLd rEviVe UpoN dIsCOnTinUAncE OF operaTIONS By THe lESsEE. see lEhigH vaLley r.r. CO. prOpOSEd ABanDonMEnt of oPeraTion, 202 i.c.c. 659, 663 (1935); nOrfoLk S.r.R. CO. rECEIVeRS AbAnDoNMenT, 221 I.C.C. 258, 260 (1937); LiVEsTOCK tERMinAL sErviCe cO. ABanDONmeNT oF oPErATIon, 257 I.c.C. 1, 7 (1944); hObOkEN r.r., WHse. & S.s. ConnectInG cO. oPeRAtIOn, 257 I.c.c. 739, 743-44 (1944). the raIlROad RESpONDEd, corRECtly ENOuGh as a MAttER of LAW, see meYeRS V. FamouS ReAlty, inC., 271 F.2D 811, 814-815 (2 ciR. 1959), CErT. denIed, 362 u.S. 910, 80 S.Ct. 681, 4 l.ed.2D 619 (1960), thaT This dOcTRINE apPLies oNLy when thE leSSor WAS A "caRrIer bY raIlROAd," SEe 49 u.s.C. § 1(18), whEn THE LEase wAS MADe; It ClAIMED thaT tHE TeRMInAl CompaNy WaS nOT. oN JUne 3, 1971, the eXaMiNer rENdeREd A rEPORt reCOmMendInG aUthOrizaTIOn oF THe ABAndoNmENT. HE FOUNd thAT, dEspIte vARioUs pRoMotIONal EffortS, tHE rAilROad's TRaffiC HAD seRIOUSLy dEcLIned, Due To MOtor VEHICLe cOMpEtITIoN, aNd THE mOvInG Of iNdusTries AwAy FrOm THe bRoOKLYN AReA SERved BY IT; That tHE RAIlROAd "HAS suStAINEd SUBStAnTIAL lossES fOr mANY yEARs, ANd pRospeCts For reVERsING tHe DEclIne in TrafFIC aNd For prOfItable OPERATIoNS aRe vEry slim;" anD thaT thE PropERty OWNED AND lEasED BY thE RailroaD wAS iN SUCh pOor coNDItion ThaT an ExpenDItUre BY iT of APprOxiMATelY $930,000 WouLd be ReqUired fOr 154 RehABIlITAtIon of roadWAy And mArinE eQUIPMeNT.[2] With tHe rAiLrOaD's LONg recorD of loSses and nEgaTIVe Net worTh, tHesE fUNDS cOUld NOt be oBTAINed eXCePT from THE pAReNT. ThE ExaminEr cONclUDEd ThaT, DesPITE uNDOuBted haRdShiP To userS, WhiCH MighT REQUIRe MAnY TO move, witH CoNSEQuENT lOSs of EmploYMeNT opPORTUNITIes AnD reveNUes TO tHe CItY and tHe stAtE, thErE Was nO ALTErnATivE TO AUTHORIZiNG ABAndoNMEnT BY tHE rAiLrOaD. tuRnINg to tHe LEGal ARGUmEnt cONcERNINg tHE obliGaTionS OF TeRMinaL cOMpAny AS LESSOr, tHe ExAmINeR coNCLuDED tHaT ThiS RaisEd a FaCtUaL iSsue Of ThE lessOr's EArlIER comMoN cArrIEr stAtUs, wHicH haD NeveR PreVioUslY BeEn ReSoLvEd AND wHicH COuld be TeSTeD IN an actIon BY tHE OBJecTINg PARtiES UNDER § 1(18) anD (20). tHuS, He dECLINeD TO cOndItion abaNdonMEnT bY tHe raILRoAD UPOn rESUmptION OF operaTIOn Of the LeASEd prOPERtieS by thE TeRminaL coMPany. FOllowINg the coMmiSSioN'S genEraL pRaCtiCe In CaseS OF CoMpLetE ABaNdonment wHErE NEItHER The caRriER NoR a pARent cArRIEr reAlIzes EcOnomiC ADVaNtAgEs oTHeR tHaN THe TErMINatIOn OF lossES,[3] sEe ChiCaGo, a. & s.r.r. Co. ReCeIver ABANdonmeNt, 261 i.C.C. 646, 652 (1946); OKMulgee norTHErn RY. cO. AbaNDOnmenT, 320 i.c.C. 637, 645-646 (1964); mANiFeStEE & REPTON R.r. co. abaNDonmENt, 324 i.C.c. 489, 492 (1964); tEnNESSEe CenTRAl Ry. co. AbanDONmeNt Of OpERAtIoNs, 333 i.c.c. 443, 453-454 (1968), he DecLInED To iMPosE emPlOyEE protEcTIve CONdITIOnS. eXCePTIons And a reply ThERETO By tHe raIlroaD WERE fiLEd wIth ThE cOmmISsIoN IN eARLy auGusT. tHE City's, THe uNIOns' aND ThE usErS aSsOciATIoN'S eXCEpTIOns requeSTeD OrAl argumENT. on novEmBeR 3, the usErs ASSoCiatiON FILED A PEtitioN FOR LeAVe to fILe A PEtiTIon TO rEOpEN tHE HEArInG TO IncluDE further TeSTiMony concERning the WiLLiNgnesS OF UseRs tO paY a sUrCHarge of $25 PeR car. *155 tHE rAILROAd REPlIEd By lEtTer. on DECEMBER 13, ThE cOMMIssIOn, aCtiNG by divisiOn 3,	337 F.Supp.150 (1972) CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc., et al., Intervening Plaintiffs, v. The UNITEDSTATES of America et al., Defendants. Civ.No. 71-C-1639.United States District Court, E. D. New York. January 20, 1972. 151 152 Louis Walters, Asst. Corp.Counsel (J. Lee Rankin, Corp.Counsel for City of New York, Peter C.Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels,of counsel), for plaintiff. Stacey L. Wallach, New York City(Tenzer, Greenblatt, Fallon & Kaplan, New York City, of counsel), forintervening plaintiff,Bush Terminal Users Ass'n. William C.Mahoney, Washington, D. C., forintervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & StationEmployes.John C.McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, Albany, N. Y., for intervening plaintiff, State ofNew York. Lloyd H. Baker, Asst. U. S. Atty. (RobertA. Morse, U. S. Atty. Eastern District of New York, of counsel), for defendant,the UnitedStates. Theodore C. Knappen, Washington, D. C., Asst. Gen. Counsel, for defendant, Interstate Commerce Commission. G. Clark Cummings,New York City, for defendant, Bush Terminal R.R. Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief DistrictJudge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit Judge: Inthis action against theUnited States, theInterstateCommerce Commission, Bush Terminal Railroad and certain of the latter's officersand directors,the City of New York, joined by several intervenors, asks us to annulan orderof the Interstate Commerce Commission dated December 13, 1971, in F.D. No. 25896, which authorized abandonment of the entire line of Bush TerminalRailroad Company (the Railroad) in Kings County, New York, and Hudson County, New Jersey. Theorder, which was effective immediately,was entered after the Railroad on December 1, 1971, had unilaterally imposed an embargo on all outgoing freight and announced that on December 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedlyunseaworthy condition ofits marine equipment,andafter users of the Railroad had begun anaction to enjoin the embargo which they considered tobe an unauthorized abandonment. The Railroadterminated operation on December 13 immediately on learning of the Commission's order.[1] On December 17, the City began this action and sought atemporaryrestraining order,see 28 U.S.C.§ 2284(3). Judge Weinstein denied this butsetthe City's motion for a temporary injunctionfor argument on December 22 before a three-judge court which he asked to have convened, 28 U.S.C.§§ 2321, 2325.At the argument, the Bush Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and theDepartment of Transportation of the State of New York were allowed to interveneas plaintiffs. Issuance of 153 a temporaryrestraining order was again refused, but we reserveddecision on the motion for a temporaryinjunction pending the filing of the record and briefs. The Railroad, organized in 1903, is a wholly-owned subsidiary ofBush Universal, Inc., which had been known as Bush Terminal Company until July, 1968. The purpose of establishingthe Railroad was to acquire franchise rights in city streetsandextend to new buildings railroad services then being provided in Brooklyn,New York, byBush Terminal. The line owned by theRailroad is only 1.8 miles long. Thisconnects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated bythe Railroadbut are owned and had previously been operated by Bush Terminal, allegedly as agent for theRailroadand for trunk line carriers servingNew York Harbor. InBush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of theInterstate Commerce Act, to extendits railroad by acquiringthrough leasethe trackage and other facilities owned by Bush Terminal. The lease took effect on January1, 1945. Since then the Railroad, as a common carrier, has moved cars between industriesin and nearthe Bush Terminal in Brooklyn across New York Harbor to and from various trunk lineterminalsin New Jersey. In December, 1968, Bush Terminal, havingchangedits name and become a conglomerate, controlled by Universal Consolidated Industries,Inc.,a still more conglomerated conglomerate, conveyedall its real estate, including some of the land over which the Railroad operates,toa newly organized, wholly owned subsidiary,Bush Terminal Company, Inc. This new subsidiary assumed its parent's obligations underthe lease to the Railroad. We will generally referto Bush Universal, Inc. andBushTerminal Company, Inc., simply as "the Terminal Company." The Railroad, on October 23, 1969, filed an application under § 1(18) of theInterstate Commerce Act for permission to abandon the operation both ofitsowned andofits leased properties. Hearings were held in late June, 1970. The application wasopposed by usersofthe service, governmental and quasi-governmental bodies and labor organizationsrepresentingtheRailroad's employees. In their post-hearing briefs theCity, the State, and the UsersAssociation forthe first time raised the issuethat authorization of abandonment by the lessee, the Railroad, would not relieve the lessor,the Terminal Company, of its independent obligation to operate the leasedproperties, anobligation thatwould revive upon discontinuance of operations by the lessee.See Lehigh ValleyR.R. Co. Proposed Abandonment ofOperation, 202 I.C.C.659,663 (1935); NorfolkS.R.R. Co. Receivers Abandonment, 221 I.C.C. 258,260 (1937);Livestock Terminal Service Co.Abandonment ofOperation, 257 I.C.C. 1, 7 (1944); Hoboken R.R., Whse. & S.S. ConnectingCo. Operation, 257 I.C.C. 739,743-44 (1944). The Railroadresponded, correctly enough as a matter of law, see Meyersv. Famous Realty, Inc., 271 F.2d 811, 814-815 (2 Cir.1959), cert. denied, 362 U.S. 910, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960), that this doctrine applies only when the lessor was a "carrier by railroad," see 49 U.S.C. § 1(18), when the lease wasmade; it claimed thatthe Terminal Companywas not. On June 3, 1971, the examiner rendered a report recommending authorizationof the abandonment. He found that, despite various promotional efforts,the Railroad'straffic had seriously declined, due to motor vehiclecompetition, and the movingofindustries away from the Brooklyn area served byit; that the Railroad "has sustained substantial losses for many years, and prospectsfor reversingthe decline in traffic and for profitable operations are veryslim;" and that the property owned and leased by the Railroad was in suchpoorcondition that anexpenditure by it of approximately $930,000 would be required for 154 rehabilitation of roadway and marine equipment.[2]Withthe Railroad's long recordof losses and negative networth, these fundscould not beobtained except from the parent. The examiner concluded that, despite undoubted hardshiptousers,which might require many to move, with consequent loss of employment opportunities and revenues to theCityandthe State, there wasnoalternative to authorizing abandonment by the Railroad. Turning to the legal argument concerning theobligations of Terminal Company as lessor, the examiner concluded that this raised a factual issue of the lessor's earliercommon carrierstatus, which had never previously been resolved and which could be tested in an action by the objecting parties under § 1(18) and (20). Thus,he declined tocondition abandonment by the Railroad upon resumption of operation of the leased properties by theTerminal Company. Following the Commission's general practice in cases of complete abandonment where neither the carriernor a parent carrier realizes economicadvantagesother than the termination of losses,[3] see Chicago, A. & S.R.R. Co. Receiver Abandonment, 261 I.C.C. 646,652 (1946); Okmulgee Northern Ry. Co. Abandonment,320 I.C.C. 637, 645-646 (1964); Manifestee & Repton R.R. Co. Abandonment, 324I.C.C. 489, 492 (1964); Tennessee Central Ry. Co. Abandonmentof Operations, 333 I.C.C.443, 453-454 (1968), he declined to imposeemployeeprotective conditions. Exceptions anda reply thereto by the Railroad were filed with the Commission in earlyAugust. The City's, the Unions' and the UsersAssociation's exceptions requested oral argument. On November 3, theUsers Association filed a petition for leave to file a petitionto reopen the hearingto include further testimony concerning the willingness of users to paya surcharge of $25 per car. *155 The Railroadreplied by letter. On December 13, the Commission, acting by Division 3,	337 F.Supp. 150 _(1972)_ _CITY_ OF _NEW_ YORK, Plaintiff, and Bush Terminal Railroad _Users_ _Association,_ Inc., et al., Intervening _Plaintiffs,_ v. The UNITED STATES of America et _al.,_ Defendants. Civ. No. 71-C-1639. United States District _Court,_ E. D. New York. January 20, 1972. _151_ _152_ Louis _Walters,_ Asst. _Corp._ Counsel (J. _Lee_ Rankin, Corp. Counsel for City of New York, Peter C. Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels, _of_ counsel), _for_ plaintiff. _Stacey_ L. Wallach, New York City (Tenzer, Greenblatt, Fallon _&_ Kaplan, _New_ York _City,_ _of_ counsel), for intervening _plaintiff,_ Bush Terminal _Users_ Ass'n. William C. Mahoney, Washington, D. C., for intervening plaintiffs, _United_ Transportation Union and _Brotherhood_ of Railway, Airline _&_ Steamship Clerks, Freight _Handlers,_ Express & Station Employes. _John_ C. McTiernan, Asst. Counsel, N. Y. State Dept. of _Transportation,_ Albany, N. Y., for _intervening_ plaintiff, _State_ of New York. Lloyd H. Baker, Asst. U. S. Atty. _(Robert_ _A._ Morse, _U._ S. Atty. Eastern District of New York, of counsel), _for_ _defendant,_ the United States. _Theodore_ C. Knappen, _Washington,_ _D._ C., Asst. Gen. Counsel, _for_ _defendant,_ Interstate Commerce Commission. G. Clark Cummings, _New_ _York_ City, for defendant, Bush Terminal R.R. Before _FRIENDLY,_ Chief Circuit Judge, MISHLER, Chief District Judge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit _Judge:_ In this action against the United _States,_ _the_ Interstate Commerce _Commission,_ _Bush_ _Terminal_ Railroad and certain of the _latter's_ officers and directors, the City of _New_ York, joined by several intervenors, asks _us_ to annul an _order_ of the Interstate Commerce _Commission_ dated December 13, _1971,_ _in_ F.D. No. 25896, which _authorized_ abandonment of the entire line of Bush Terminal _Railroad_ Company (the Railroad) in Kings County, _New_ York, _and_ _Hudson_ County, _New_ Jersey. The order, which was effective immediately, was entered after the Railroad _on_ December _1,_ 1971, had unilaterally imposed an embargo on all outgoing freight and announced that on December 15, 1971, it _would_ impose a similar embargo _on_ all incoming freight, because of _the_ allegedly unseaworthy _condition_ of its marine _equipment,_ and after users of the _Railroad_ had begun an _action_ _to_ enjoin _the_ _embargo_ which _they_ considered to be an _unauthorized_ abandonment. The _Railroad_ terminated operation on December 13 immediately on learning of the _Commission's_ order.[1] _On_ December 17, the City began _this_ _action_ and sought a temporary restraining order, _see_ 28 U.S.C. § 2284(3). Judge Weinstein denied this but set _the_ _City's_ motion for _a_ temporary _injunction_ for argument on December _22_ before _a_ three-judge _court_ _which_ he asked to have convened, 28 U.S.C. §§ 2321, 2325. At _the_ argument, _the_ Bush Terminal Users Association, Inc., _United_ _Transportation_ Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, _and_ the _Department_ of _Transportation_ of the State of New York were allowed to intervene as _plaintiffs._ Issuance of 153 a temporary restraining order was again _refused,_ but _we_ reserved decision on the motion for a temporary _injunction_ pending the filing of the record and briefs. The Railroad, organized _in_ 1903, _is_ a wholly-owned _subsidiary_ _of_ Bush Universal, Inc., which had been known as _Bush_ Terminal _Company_ until July, 1968. The purpose of establishing the Railroad _was_ to _acquire_ franchise _rights_ in city _streets_ and extend to _new_ buildings _railroad_ services then being provided in Brooklyn, New York, by Bush Terminal. The line _owned_ by the Railroad is only _1.8_ miles _long._ This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated _by_ _the_ Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent _for_ _the_ Railroad _and_ for trunk line carriers serving New _York_ Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 _(1944),_ the Commission _authorized_ the Railroad, pursuant to _§_ 1(18) _of_ the Interstate Commerce Act, to extend its railroad by acquiring through _lease_ the _trackage_ and _other_ facilities owned _by_ Bush Terminal. _The_ lease took _effect_ on _January_ 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and _near_ the _Bush_ Terminal in Brooklyn _across_ New York _Harbor_ to and from various trunk line terminals _in_ _New_ _Jersey._ In _December,_ 1968, Bush _Terminal,_ having changed its name _and_ become a _conglomerate,_ controlled by Universal Consolidated Industries, Inc., a _still_ _more_ conglomerated _conglomerate,_ conveyed all _its_ _real_ estate, including _some_ of the land over which the Railroad operates, to a newly organized, wholly owned _subsidiary,_ Bush Terminal Company, Inc. This new subsidiary assumed its parent's obligations under the _lease_ to the Railroad. We will generally _refer_ to Bush Universal, Inc. and _Bush_ _Terminal_ Company, _Inc.,_ simply _as_ _"the_ Terminal Company." The Railroad, on October 23, 1969, filed an _application_ under § 1(18) of the Interstate Commerce Act for permission to _abandon_ the operation both of its _owned_ and of its _leased_ properties. Hearings _were_ _held_ _in_ late _June,_ 1970. The application was opposed by users of the _service,_ governmental and _quasi-governmental_ _bodies_ and labor organizations representing the Railroad's employees. In their post-hearing briefs _the_ City, the State, _and_ the _Users_ Association for the first time raised the _issue_ _that_ authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, _the_ _Terminal_ Company, _of_ _its_ independent obligation to _operate_ the _leased_ _properties,_ an obligation that _would_ revive upon discontinuance of operations by the lessee. See _Lehigh_ _Valley_ R.R. Co. Proposed _Abandonment_ of Operation, 202 _I.C.C._ 659, 663 (1935); Norfolk S.R.R. Co. Receivers Abandonment, 221 I.C.C. 258, 260 (1937); Livestock Terminal Service Co. Abandonment of Operation, 257 I.C.C. 1, _7_ (1944); _Hoboken_ R.R., Whse. & S.S. Connecting Co. Operation, 257 I.C.C. _739,_ 743-44 _(1944)._ The _Railroad_ responded, correctly enough as a matter of law, see Meyers v. Famous _Realty,_ Inc., 271 F.2d 811, _814-815_ (2 Cir. 1959), cert. denied, 362 U.S. 910, _80_ _S.Ct._ 681, 4 L.Ed.2d 619 (1960), _that_ this doctrine applies _only_ when _the_ lessor was a _"carrier_ by railroad," see 49 U.S.C. § _1(18),_ _when_ the lease was made; it claimed that the Terminal Company _was_ _not._ _On_ _June_ 3, 1971, _the_ examiner _rendered_ a report _recommending_ authorization of _the_ abandonment. He found _that,_ _despite_ various promotional efforts, the Railroad's traffic had _seriously_ declined, due to motor _vehicle_ _competition,_ and _the_ moving _of_ industries away from the Brooklyn _area_ served _by_ it; that the Railroad "has _sustained_ _substantial_ losses for many _years,_ and prospects for reversing the decline in traffic _and_ for _profitable_ operations are very slim;" and that _the_ property owned and leased by _the_ Railroad was in _such_ poor condition _that_ an expenditure by it of approximately $930,000 would be required for 154 _rehabilitation_ of roadway and marine equipment.[2] With the Railroad's _long_ record _of_ losses and _negative_ _net_ worth, these funds could not be _obtained_ except from the parent. The examiner _concluded_ that, _despite_ undoubted hardship _to_ users, which might require many to move, with consequent loss _of_ employment opportunities and _revenues_ to the City and the State, there was no alternative to _authorizing_ abandonment _by_ the Railroad. _Turning_ to the _legal_ argument concerning the _obligations_ of Terminal Company _as_ lessor, the examiner concluded that this raised a factual issue of the _lessor's_ earlier common carrier status, which had never previously been resolved and which could _be_ tested in _an_ _action_ _by_ _the_ _objecting_ parties _under_ § 1(18) _and_ (20). Thus, he declined to condition abandonment by the Railroad upon resumption of operation of the _leased_ properties _by_ the Terminal Company. Following _the_ _Commission's_ _general_ practice in cases _of_ complete abandonment where neither the carrier nor a _parent_ carrier realizes economic _advantages_ other than the _termination_ of _losses,[3]_ see Chicago, A. & _S.R.R._ Co. Receiver _Abandonment,_ 261 I.C.C. 646, _652_ (1946); Okmulgee Northern _Ry._ Co. _Abandonment,_ 320 I.C.C. 637, _645-646_ (1964); Manifestee & Repton R.R. Co. Abandonment, 324 I.C.C. _489,_ 492 _(1964);_ Tennessee Central Ry. _Co._ Abandonment of Operations, 333 I.C.C. 443, _453-454_ (1968), he declined to impose employee protective conditions. Exceptions and a _reply_ thereto by the Railroad were filed with the Commission in early August. The City's, the Unions' and the Users Association's exceptions requested _oral_ argument. _On_ November 3, _the_ Users Association _filed_ a _petition_ for leave to file a petition to reopen the _hearing_ to _include_ further testimony concerning the willingness of users _to_ pay a surcharge _of_ $25 per car. *155 The Railroad replied by letter. On December 13, the _Commission,_ _acting_ _by_ Division 3,
11-5060 Liang v. Holder BIA Grant, IJ Hom, IJ A079 399 984 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of September, two thousand thirteen. PRESENT: JOSÉ A. CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11-5060 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Lewis G. Hu, New York, New York. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel, Genevieve Holm, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Zhu La Liang, a native and citizen of the People’s Republic of China, seeks review of a November 8, 2011, order of the BIA, affirming the November 17, 2005, decision of Immigration Judge (“IJ”) M. Christopher Grant, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zhu La Liang, No. A079 399 984 (B.I.A. Nov. 08, 2011), aff’g No. A079 399 984 (Immig. Ct. Arlington, Nov. 17, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.1 I. Adverse Credibility Determination Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 1 Liang did not challenge the IJ’s denial of CAT relief before the BIA and does not meaningfully challenge it in this Court. Thus, the claim is forfeited. 2 Cir. 2009). In pre-REAL ID Act cases, such as this one, inconsistencies and other discrepancies may form the basis of an adverse credibility determination but must “bear a legitimate nexus” to the applicant’s claim of persecution and be “substantial” when measured against the record as a whole. Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003). The agency, however, may rely on the cumulative effect of even minor inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). We conclude that substantial evidence supports the agency’s adverse credibility determination. In finding Liang not credible, the IJ reasonably relied in part on Liang’s demeanor, noting that she appeared very nervous when asked to explain inconsistencies in her testimony. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). We defer to this finding. Id. Further, the agency reasonably relied on inconsistencies and omissions in Liang’s various statements in concluding she was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir. 2008) (holding that for purposes of analyzing a credibility determination, “[a]n inconsistency and an omission are functionally equivalent”); see also Secaida- 3 Rosales, 331 F.3d at 308. Contrary to Liang’s argument, the fact of her forced abortion was material, and bore a “legitimate nexus,” to her claim that she had suffered past persecution, and, therefore, the omission of that fact during her credible fear interview formed a legitimate basis for the IJ’s adverse credibility determination. See Secaida-Rosales, 331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d at 166-67 n.3. The IJ also reasonably relied on discrepancies between: (1) Liang’s original and amended asylum applications with respect to the year in which the abortion occurred; (2) Liang’s and her husband’s testimony as to whether they had cohabited in China; and (3) Liang’s testimony and abortion certificate with regard to the date of the abortion procedure. Liang failed to provide compelling explanations for these discrepancies. See Majidi, 430 F.3d at 80-81. Furthermore, the IJ reasonably found implausible Liang’s assertion that she chose to delay marrying after discovering that she was pregnant despite her awareness of the significant risks associated with conceiving a child out of wedlock. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that where the IJ’s findings are “tethered to record evidence, and there is nothing else in the record from which 4 a firm conviction of error could properly be derived,” we will not disturb the inherent implausibility finding). Finally, because Liang does not challenge the IJ’s finding that she failed adequately to corroborate her claim, it stands as valid basis for the agency’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Thus, given the absence of corroborating evidence, as well as the aforementioned omissions and discrepancies in Liang’s testimony, we identify no error in the agency’s denial of asylum and withholding of removal on credibility grounds. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). II. Due Process Despite the IJ’s failure to conduct a de novo hearing on remand as ordered by the BIA, Liang has not demonstrated that she was deprived of due process during her proceedings. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006). Indeed, nothing in the record suggests that Liang was prohibited from fully developing her testimony, that any of her evidence had been ignored, or that the IJ made a determination on issues about which she had no notice or opportunity to be heard. See id. Furthermore, Liang has not identified anything to suggest that the manner in which the IJ conducted her proceedings undermined their fairness. See id. 5	11 - 5060 liang v. holder bia grant, ij hom, ij a079 399 984 united states court of appeals for circuit second circuit summary order rulings by summary order do not have precedential effect. citation to a summary order filed on or after january 1, 2007, is permitted and is governed by federal rule of appellate procedure 32. 1 and this court ’ s local rule 32. 1. 1. when addressing a summary order in a document filed with this court, a party must cite either the federal appendix or an electronic database ( with the notation “ summary order ” ). a party citing a summary order must serve a copy of it on any party not represented by counsel. at a stated term of the united states court of appeals for the second circuit, held at the thurgood marshall united states courthouse, 106 foley square, in the city of new york, on the 12th day of september, two thousand thirteen. present : jose a. cabranes, reena raggi, christopher f. droney, circuit judges. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ zhu la liang, petitioner, v. 114 - 5060 nac eric h. holder, jr., united states attorney general, respondent. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ for petitioner : lewis g. hu, new york, new york. for respondent : stuart f. delery, assistant attorney general ; greg d. mack, senior litigation counsel, genevieve holm, trial attorney, office of immigration litigation, united states department of justice, washington, d. c. upon due consideration of this petition for review of a board of federal appeals ( “ bia ” ) decision, it is hereby ordered, adjudged, and decreed that the complaint for review is accepted. zhu la liang, a native and resident of the people ’ s republic of china, pending review of a november 8, 2011, order of the bia, affirming the november 17, 2005, decision of immigration judge ( “ ij ” ) m. christopher grant, which denied her application for asylum, withholding of removal, and asylum under the convention against torture ( “ cat ” ). in re zhu la liang, no. a079 399 984 ( b. i. a. nov. 08, 2011 ), aff ’ g no. a079 399 984 ( immig. ct. arlington, nov. 17, 2005 ). we assume the parties ’ familiarity with the underlying facts and procedural history in this case. 1 i. adverse credibility determination under the circumstances of this case, we have reviewed both the ij ’ s and the bia ’ s decisions. see yun - zui guan v. gonzales, 432 f. 3d 391, 394 ( 2d cir. 2005 ). the applicable standards of review are well - established. see 8 u. s. c. § 1252 ( b ) ( 4 ) ( b ) ; yanqin weng v. holder, 562 f. 3d 510, 513 ( 2d 1 liang did not challenge the ij ’ s denial of cat relief before the bia and does not meaningfully challenge it in this court. thus, the claim is forfeited. 2 cir. 2009 ). in pre - real id act cases, such as this one, inconsistencies and other discrepancies may form the basis of an adverse credibility determination but must “ bear a legitimate nexus ” to the applicant ’ s claim of persecution and be “ substantial ” when measured against the record as a whole. secaida - rosales v. ins, 331 f. 3d 297, 307 - 08 ( 2d cir. 2003 ). the agency, however, may rely on the cumulative effect of even minor inconsistencies. see tu lin v. gonzales, 446 f. 3d 395, 402 ( 2d cir. 2006 ). we conclude that substantial evidence supports the agency ’ s adverse credibility determination. in finding liang not credible, the ij reasonably relied in part on liang ’ s demeanor, noting that she appeared very nervous when asked to explain inconsistencies in her testimony. see majidi v. gonzales, 430 f. 3d 77, 81 n. 1 ( 2d cir. 2005 ). we defer to this finding. id. further, the agency reasonably relied on inconsistencies and omissions in liang ’ s various statements in concluding she was not credible. see xiu xia lin v. mukasey, 534 f. 3d 162, 166 - 67 n. 3 ( 2d cir. 2008 ) ( holding that for purposes of analyzing a credibility determination, “ [ a ] n inconsistency and an omission are functionally equivalent ” ) ; see also secaida - 3 rosales, 331 f. 3d at 308. contrary to liang ’ s argument, the fact of her forced abortion was material, and bore a “ legitimate nexus, ” to her claim that she had suffered past persecution, and, therefore, the omission of that fact during her credible fear interview formed a legitimate basis for the ij ’ s adverse credibility determination. see secaida - rosales, 331 f. 3d at 307 - 08 ; see also xiu xia lin, 534 f. 3d at 166 - 67 n. 3. the ij also reasonably relied on discrepancies between : ( 1 ) liang ’ s original and amended asylum applications with respect to the year in which the abortion occurred ; ( 2 ) liang ’ s and her husband ’ s testimony as to whether they had cohabited in china ; and ( 3 ) liang ’ s testimony and abortion certificate with regard to the date of the abortion procedure. liang failed to provide compelling explanations for these discrepancies. see majidi, 430 f. 3d at 80 - 81. furthermore, the ij reasonably found implausible liang ’ s assertion that she chose to delay marrying after discovering that she was pregnant despite her awareness of the significant risks associated with conceiving a child out of wedlock. see wensheng yan v. mukasey, 509 f. 3d 63, 67 ( 2d cir. 2009 ) ( holding that where the ij ’ s findings are “ tethered to record evidence, and there is nothing else in the record from which 4 a firm conviction of error could properly be derived, ” we will not disturb the inherent implausibility finding ). finally, because liang does not challenge the ij ’ s finding that she failed adequately to corroborate her claim, it stands as valid basis for the agency ’ s adverse credibility determination. see shunfu li v. mukasey, 529 f. 3d 141, 146 ( 2d cir. 2008 ). thus, given the absence of corroborating evidence, as well as the aforementioned omissions and discrepancies in liang ’ s testimony, we identify no error in the agency ’ s denial of asylum and withholding of removal on credibility grounds. see paul v. gonzales, 444 f. 3d 148, 156 ( 2d cir. 2006 ). ii. due process despite the ij ’ s failure to conduct a de novo hearing on remand as ordered by the bia, liang has not demonstrated that she was deprived of due process during her proceedings. see li hua lin v. u. s. dept. of justice, 453 f. 3d 99, 104 - 05 ( 2d cir. 2006 ). indeed, nothing in the record suggests that liang was prohibited from fully developing her testimony, that any of her evidence had been ignored, or that the ij made a determination on issues about which she had no notice or opportunity to be heard. see id. furthermore, liang has not identified anything to suggest that the manner in which the ij conducted her proceedings undermined their fairness. see id. 5	11 - 5060 Liang v. Holder BIA Grant, IJ Hom, IJ A079 399 984 UNITED STATES COURT OF APPEALS FOR THE SECOND CLGCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32. 1 AND THIS COUtY ’ S LOCAL RULE 32. 1. 1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of September, two thousand thirteen. PRESENT: JOSÉ A. CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11 - 5060 NAC ERIC H. HOLDER, JR. , UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Lewis G. Hu, New York, New York. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel, Genevieve Holm, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D. C. UPON DUE CONSIDERATION of this petition for review of a Board of Im,Ogration Appeals (“ BIA ”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Zhu La Liang, a native and citizen of the People ’ s Republic of China, seeks review of a November 8, 2011, order of the BIA, affirming the November 17, 2005, decision of Immigration Judge (“ IJ ”) M. Christopher Grant, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“ CAT ” ). In re Zhu La Liang, No. A079 399 984 (B. I. A. Nov. 08, 2011 ), aff ’ g No. A079 399 984 (Immig. Ct. Arlington, Nov. 17, 2005 ). We assume the parties ’ familiarity with the underlying facts and procedural history in this case. 1 I. Adverse Credibility Determination Under the circumstances of this case, we have reviewed both the IJ ’ s and the BIA ’ s decisions. See Yun - Zui Guan v. Gonzales, 432 F. 3d 391, 394 (2d Cir. 2005 ). The applicable standards of review are well - established. See 8 U. S. C. § 1252 (b) (4) (B ); Yanqin Weng v. Holder, 562 F. 3d 510, 513 (2d 1 Liang did not challenge the IJ ’ s denial of CAT relief before the BIA and does not meaningfully challenge it in this Court. Thus, the claim is forfeited. 2 Cir. 2009 ). In pre - RsA< ID Act vQses, such as this one, inconsistencies and other discrepancies may form the basis of an adverse credibility determination but must “ bear a legitimate necJs ” to the applicant ’ s claim of persecution and be “ substantial ” when measured against the record as a whole. Secaida - Rosales v. INS, 331 F. 3d 297, 307 - 08 (2d Cir. 2003 ). The agency, however, may rely on the cumulative effect of even minor inconsistencies. See Tu Lin v. Gonzales, 446 F. 3d 395, 402 (2d Cir. 2006 ). We conclude that substantial evidence supports the agency ’ s adverse credibility determination. In finding Liang not credible, the IJ reasonably relied in part on Liang ’ s demeanor, noting that she appeared very nervous when asked to explain inconsistencies in her testimony. See Majidi v. Gonzales, 430 F. 3d 77, 81 n. 1 (2d Cir. 2005 ). We defer to this finding. Id. Further, the agency reasonably relied on inconsistencies and omissions in Liang ’ s various statements in concluding she was not credible. See Xiu Xia Lin v. Mukasey, 534 F. 3d 162, 166 - 67 n. 3 (2d Cir. 2008) (holding that for purposes of analyzing a credibility determination, “ [a] n inconsistency and an omission are functionally equivalent ” ); see also Secaida - 3 Rosales, 331 F. 3d at 308. Contrary to Liang ’ s argument, the fact of her forced abortion was material, and bore a “ legitimate nexus, ” to her claim that she had suffered past persecution, and, therefore, the omission of that fact during her credible fear interview formed a legitimate basis for the IJ ’ s adverse credibility determination. See Secaida - Rosales, 331 F. 3d at 307 - 08; see also Xiu Xia Lin, 534 F. 3d at 166 - 67 n. 3. The IJ also reasonably relied on discrepancies between: (1) Liang ’ s original and amended asylum applications with respect to the year in which the abortion occurred; (2) Liang ’ s and her husband ’ s testimony as to whether they had cohabited in vMina; and (3) Liang ’ s testimony and abortion certificate with regard to the date of the abortiiJ procedure. Liang failed to provide compelling explanations for these discrepancies. See Majidi, 430 F. 3d at 80 - 81. Furthermore, the IJ reasonably found implausible Liang ’ s assertion that she chose to delay marrying after discovering that she was pregnant despite her awareness of the significant risks associated with coBceivinh a child out of wedlock. See Wensheng Yan v. Mukasey, 509 F. 3d 63, 67 (2d Cir. 2009) (holding that where the IJ ’ s findings are “ tethered to record evidSnxe, and there is nothing else in the record from which 4 a firm conviction of error could properly be derived, ” we will not disturb the inherent implausibility finding ). Finally, because Liang does not challenge the IJ ’ s finding that she failed adequately to corroborate her claim, it stands as valid basis for the agency ’ s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F. 3d 141, 146 (2d Cir. 2008 ). Thus, given the absence of corroborating evidence, as well as the aforementioned omissions and discrepancies in Liang ’ s testimony, we identify no error in the agency ’ s denial of asylum and withholding of removal on credibility grounds. See Paul v. Gonzales, 444 F. 3d 148, 156 (2d Cir. 2006 ). II. Due Process Despite the IJ ’ s failure to conduct a de novo hearing on remand as ordered by the BIA, Liang has not demonstrated that she was deprived of due process during her proceedings. See Li Hua Lin v. U. S. Dept. of Justice, 453 F. 3d 99, 104 - 05 (2d Cir. 2006 ). Indeed, nothing in the record suggests that Liang was prohibited from fully developing her testimony, that any of her evidence had been ignored, or that the IJ made a determination on issues about which she had no notice or opportunity to be heard. See id. Furthermore, Liang has not identified anything to suggest that the manner in which the IJ conducted her proceedings undermined their fairness. See id. 5	11-5060 Liang v. Holder BIA Grant, IJ Hom, A079 399 984 UNITED STATES COURT OF APPEALS FOR CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL CITATION TO A FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL 32.1.1. WHEN CITING A SUMMARY ORDER IN A FILED WITH THIS COURT, A PARTY MUST EITHER THE OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City New York, on 12th day of September, thousand thirteen. PRESENT: JOSÉ A. CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11-5060 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Lewis G. Hu, New York, New York. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Greg Mack, Senior Litigation Counsel, Genevieve Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. DUE CONSIDERATION of this petition for review of a Board Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition review is DENIED. Zhu La Liang, a native and citizen the Republic of China, seeks review of a November 8, 2011, order of the BIA, affirming the November 17, 2005, decision Immigration Judge (“IJ”) M. Christopher which denied her application for asylum, withholding of removal, and relief Against Torture (“CAT”). In re Zhu La Liang, No. A079 399 984 (B.I.A. Nov. 08, aff’g No. A079 399 984 (Immig. Ct. Arlington, Nov. 17, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.1 I. Adverse Credibility Determination Under the circumstances of case, we reviewed both the IJ’s the BIA’s Yun-Zui Guan v. Gonzales, F.3d 391, 394 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin v. Holder, F.3d 510, 513 (2d Liang did challenge the IJ’s denial of CAT relief before the BIA and does not challenge in this Court. Thus, the claim is forfeited. 2 Cir. In pre-REAL ID Act cases, this one, inconsistencies and discrepancies may form the basis of an adverse determination but must “bear a legitimate nexus” to the applicant’s claim of persecution and be “substantial” when measured against the record as a whole. Secaida-Rosales v. INS, F.3d 297, 307-08 (2d Cir. 2003). The agency, however, may on the effect of even minor inconsistencies. See Tu v. 446 F.3d 395, (2d 2006). We conclude that substantial evidence supports the agency’s adverse credibility determination. In finding not credible, IJ relied in part on Liang’s demeanor, noting she appeared very nervous when asked explain inconsistencies in her testimony. See v. 430 F.3d 77, n.1 (2d Cir. 2005). We to this Id. Further, the agency reasonably relied on inconsistencies omissions in Liang’s various statements in she was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir. 2008) (holding that for purposes of analyzing a credibility determination, “[a]n inconsistency and an omission are functionally equivalent”); see also Secaida- 3 Rosales, 331 F.3d 308. Contrary to Liang’s argument, the of her forced was material, and bore a “legitimate nexus,” to her claim that she had suffered past persecution, therefore, the omission of fact during her credible fear interview formed a legitimate basis for the IJ’s adverse credibility determination. See 331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d at n.3. The IJ reasonably relied on discrepancies between: (1) Liang’s and amended asylum applications with respect to the in which the abortion occurred; (2) and her husband’s testimony to whether they had cohabited in China; and (3) Liang’s testimony and abortion certificate with regard to the date of the abortion procedure. Liang failed to provide compelling explanations for these discrepancies. See 430 F.3d at 80-81. Furthermore, the IJ reasonably found implausible Liang’s assertion that chose to delay marrying after discovering that she was pregnant despite her awareness the significant risks associated with conceiving a child out of See Yan v. Mukasey, 509 63, 67 (2d Cir. 2009) (holding that where the findings are “tethered to record evidence, and there is nothing else in the record from which 4 a firm conviction of error could properly be derived,” we will not disturb the inherent implausibility Finally, Liang does not challenge the IJ’s finding that she failed adequately to corroborate her claim, it stands as valid basis for the agency’s adverse credibility determination. See Shunfu v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Thus, given the absence of corroborating evidence, as well as the omissions and discrepancies in Liang’s testimony, we identify no error in the agency’s denial of asylum and withholding of removal on credibility grounds. See Paul v. Gonzales, 444 F.3d 148, 156 Cir. 2006). II. Due Process Despite IJ’s failure to conduct de hearing on remand ordered by the BIA, Liang has not demonstrated that she was of due process her proceedings. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006). Indeed, nothing the record suggests that Liang was prohibited from fully developing her that any of her evidence had been ignored, or that the IJ a determination on issues about had no notice or opportunity to heard. See id. Furthermore, Liang not identified anything to that the manner in which the IJ conducted her proceedings undermined their fairness. See 5	11-5060 liaNg V. HolDER BIA GraNt, Ij HOM, IJ a079 399 984 UNITed statEs COUrt of AppeaLs fOr tHe sEcoND CirCuiT sUMmAry oRDer RULings BY suMmaRy order dO NoT HaVe PReCEdENTiAL EFFecT. CITAtIoN tO a suMmaRy OrDEr FiLED On OR aFTEr jANUary 1, 2007, is peRmItTEd AND is govERned By FeDErAL RulE of AppelLATe pROCedURE 32.1 AND tHIs COurT’s loCAL rulE 32.1.1. wHen cItINg A suMmaRy orDer IN a dOcuMeNT fIlED wITH tHis coURt, A paRtY MusT cITE EiTher tHe FEdERAL ApPEndIX or An ElecTROniC DAtabASe (With thE notATIon “SummAry OrdER”). a paRty CItING a sUMMary order MuST servE A CoPY OF iT ON ANY PaRty NoT RepRESenTeD BY cOUNSeL. aT a sTAteD term oF tHe UNITED stateS courT oF aPpEAls FOr ThE seCOnd CiRCuit, HELD At tHE ThurgoOd maRSHAll uNITed StATES cOurtHOuse, 40 foleY sQUaRe, in thE cITy Of nEw YoRk, On The 12TH daY OF SEpTembeR, TWO tHOuSANd tHIrteen. pReSeNt: JoSÉ A. CAbrAnEs, ReEnA RAggI, cHrISToPHeR F. dRoney, CIrcuit jUdGES. _______________________________________ zhu La LIAng, pETITiONER, V. 11-5060 Nac erIc h. hOLdER, Jr., UNitED STAtEs AtTorNEy GeNeraL, ReSpOnDenT. _______________________________________ FoR PEtItiOner: lEwIs G. hU, New YOrK, NeW yORk. for rESPoNdEnT: sTuaRT f. DeleRy, ASSIsTant attorneY GenERAl; GrEG d. MaCK, senioR lITiGaTION CoUnsel, gEnevIeve HolM, tRiAL aTTorneY, offiCE of ImMiGrAtiON litIgaTIOn, unItEd StATeS dEpartmEnT oF juStice, wAshInGToN, d.c. upon Due consiDERATION OF ThIs PETItIoN FOR RevIeW oF A bOARD of imMigratION aPpealS (“Bia”) DEciSIOn, iT Is HErebY ORdEREd, ADJUDGED, And dECREed THAT ThE pEtITION for REvieW Is dEnIeD. Zhu lA LIAng, a naTiVe aNd cITizEn oF ThE PeOplE’S RePUbLIc oF CHina, SeEKS RevIew of A NoVemBer 8, 2011, ORDeR Of the BiA, afFIrMinG ThE NOvEMbEr 17, 2005, dEciSIoN Of iMMIGRATion juDGE (“Ij”) M. chRIstOpHEr GrANt, WHICH DENIed hER APpLIcATION fOR AsYLUm, WItHhoLDIng OF ReMOvaL, AnD ReliEF unDer The CONVENtION agaiNst torTURE (“cat”). in rE ZHu la LIanG, No. a079 399 984 (B.i.A. NoV. 08, 2011), AfF’G no. a079 399 984 (iMmIg. cT. ARlinGtOn, nOv. 17, 2005). we AssUme the PArtIeS’ faMIliariTy WItH ThE undERLyING Facts and PRocEdURAl hIStOrY IN THis cAsE.1 I. AdveRsE CrEDIbiLItY dEtERMInAtion uNDEr The cIrCUMStanCES of THiS cASE, we HaVe REviewed boTh thE iJ’s and THE BIA’s dEcisIONs. See Yun-ZUi guAn v. goNzAleS, 432 F.3d 391, 394 (2d CiR. 2005). The aPPliCABLe StaNDardS Of reviEw ArE WELL-EsTABLished. SEE 8 U.s.c. § 1252(B)(4)(b); yAnQiN wEng V. hOldEr, 562 F.3d 510, 513 (2D 1 liang DId NoT CHALLenGE THe iJ’S dEniAL of CaT REliEf bEFOre the bIA and dOes NoT mEANiNGFUlLy CHALlEnGe IT In this cOurt. tHus, tHE cLaIm is fOrfEiTeD. 2 cir. 2009). In pre-real Id act CASES, such aS thiS One, INConsiStenCIes and oThEr diScrEPANcIes maY form the BaSis of AN aDVersE CrEdiBIliTy dETERmInATIoN but muSt “bEaR a LeGitIMATE NExUS” TO THe APplIcaNT’S CLaIm OF PErSECUtiOn And Be “suBstAnTiaL” WHeN MeASureD AGAinST ThE RECorD as A WHole. SecAiDa-ROsAleS V. iNs, 331 f.3d 297, 307-08 (2D CIR. 2003). THE AgencY, hOWEVeR, may RelY on THe cUMULATiVE eFfecT Of EvEn mInOr IncONSiSTeNcieS. seE TU LIn v. GoNzALES, 446 F.3d 395, 402 (2d cIR. 2006). wE CoNclUDE thAT sUBsTAntIal EVIdeNCE suPpORtS tHe AGeNcy’S AdVersE CrEDibiliTy detERMINatIoN. IN FiNDinG LiANg NOT cREdIBlE, tHe IJ rEaSOnaBly relIEd IN paRt on LianG’S DeMEanOR, nOtIng ThAt sHe aPpEarEd vErY NErVoUS wHen ASkEd To ExPLaIN InCOnsISTENCIes iN HeR testiMoNY. SeE mAJIDI V. GonzALES, 430 f.3d 77, 81 N.1 (2d cIR. 2005). We deFer To tHIs FindInG. ID. FURtHeR, tHE AgEnCy ReAsOnABLy ReliED ON InCoNsiStEncIES and OMisSIoNs IN LIANG’S VAriOuS StaTEmEnTS In COnCLUding SHe Was Not CrEdibLe. see xiu XIa Lin v. MUKAsey, 534 F.3D 162, 166-67 N.3 (2d cIr. 2008) (HoldiNG THAt fOR PurposeS Of ANalYZing A creDIBILiTy dEterMInatiOn, “[A]N InconsiSteNcy and AN OmIssiON Are FuncTiONALlY EQuiVALent”); See Also SeCAIDA- 3 rOSAlEs, 331 F.3d AT 308. cOnTRARY to liang’s aRGumEnt, ThE fact OF HEr foRcED ABORtiON wAs MATEriAl, anD BoRE a “LeGItImaTe NeXus,” TO HEr claiM THat She hAd sUfFereD PAsT PeRsEcUtION, And, THeRefOre, thE omiSsioN of ThaT Fact During Her CRedible fEaR INteRvIeW FoRMed A leGItimAte baSiS FoR ThE IJ’s ADVeRse cREdiBIlitY DEterMinatioN. SeE seCAIdA-roSalEs, 331 f.3D at 307-08; SeE Also XIu xIa LiN, 534 f.3d AT 166-67 N.3. ThE Ij also REASoNabLY reliED on dIScrEpANcieS BetwEeN: (1) Liang’s Original aND AmENDED asyLuM aPPLiCatIoNS with rEspeCt tO THE yEaR In wHich ThE AborTION OcCuRreD; (2) lIaNg’s and HeR huSBAND’s tEStiMONy aS To wHEtheR tHey hAD coHABiTEd in CHiNA; AND (3) lIAng’s TEsTIMONy and aboRTION CeRtIfICaTE With rEgArD TO THE DAtE oF ThE aBorTiON prOcedure. LIaNG fAILED to PrOVIde CompellINg EXpLaNATioNs For These DIscREpAnCIes. See majIdI, 430 f.3D AT 80-81. FURtHErMOrE, The IJ rEASonAbLy FoUNd iMPlAUsible LIANG’S aSseRTion thAT shE chOSe To DElAy MArRyING aFtEr diScoVEriNG ThAT sHe Was prEgNaNt dESpitE HER aWAreNEsS Of tHe signIFiCANT RiSKs assOcIated WITh COnCEIvinG a Child OUT oF wedlocK. SeE WeNSHeng Yan V. MUkASeY, 509 F.3d 63, 67 (2d Cir. 2009) (hoLDINg That WhERe thE Ij’s fINdiNGS arE “TEtHEREd to RecorD evIDEnCE, aNd thEre iS nOthiNg else In THe recorD FROm wHICh 4 a fIRm CoNvicTiON oF eRrOr COUlD PRopERLY Be DerIVEd,” wE WIll NOT distuRb THE InHErENT IMPLauSibILiTY FinDinG). fINalLy, BeCausE lIaNg DoEs NoT cHaLleNgE ThE ij’s FInDING ThAT sHe fAiled aDEqUATeLY TO coRrOBoraTE HeR ClaiM, It sTanDS aS VALid bAsiS FOr thE agENcY’S advERSe CRedIbILITy dEtERMINAtioN. sEe ShUnFU Li v. MuKASeY, 529 f.3d 141, 146 (2D CIR. 2008). tHuS, GIvEN The Absence of coRroborATiNG EvideNCe, aS WELl aS tHE AforEmENtIONeD OMIssiONS and DiScRepaNCIes In liANg’S tesTIMoNY, we iDENTify NO ERRoR iN The aGencY’s dENIal OF ASylUM and WIThhoLDiNG Of remOVal On crEDiBiLity GROUndS. SeE PaUl V. GonzALEs, 444 f.3D 148, 156 (2D Cir. 2006). Ii. due prOCEss DESpitE tHE iJ’s fAiLURe to cONdUCT A de novO HEaRIng ON rEmaND as ordEred BY THE bIa, lIaNg HaS NOt DEMONsTRAtEd THaT SHE WAS DePrivED oF dUe PrOcESS DurING hEr proceEDIngs. SeE LI Hua LiN v. u.s. dEPT. OF JUstiCE, 453 f.3D 99, 104-05 (2d ciR. 2006). INDEED, NotHinG iN THe rEcoRd sugGesTS thaT LIaNG wAs PRohiBited frOm fuLLy DeveLOPiNg hEr TEsTImONY, tHaT ANY of Her eviDENcE had Been igNOREd, Or thAt thE IJ MadE A deTerMInATIon On ISSueS AboUT whiCH she haD NO NOTiCE Or oppORTUniTY TO Be hEArd. sEe ID. fURthErMorE, LIANg HAs NOT ideNtIFiED AnyThing to suGGeSt ThAt The mAnNEr IN WHICh THe Ij CONduCTeD her pRoCeEdingS UNdermINed tHeiR FaIRnEss. SEE id. 5	11-5060Liang v.Holder BIA Grant, IJ Hom, IJ A079 399 984 UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT SUMMARYORDER RULINGS BY SUMMARY ORDER DO NOT HAVEPRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,2007,IS PERMITTEDAND IS GOVERNEDBY FEDERAL RULE OFAPPELLATE PROCEDURE 32.1 ANDTHIS COURT’S LOCALRULE 32.1.1. WHEN CITING A SUMMARY ORDERIN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONICDATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING ASUMMARY ORDER MUST SERVE A COPYOF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. Ata stated term of the United States Court of Appeals for theSecond Circuit, held at the ThurgoodMarshall United StatesCourthouse, 40Foley Square,in the City of New York, on the 12thday of September, two thousand thirteen.PRESENT: JOSÉ A. CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, CircuitJudges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11-5060 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________FOR PETITIONER: Lewis G. Hu, New York, New York. FOR RESPONDENT: StuartF. Delery, Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel, Genevieve Holm, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION ofthispetition for review of a Board of ImmigrationAppeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Zhu La Liang, a native and citizen of the People’sRepublic of China, seeks review of a November8, 2011, order of the BIA, affirming the November17, 2005,decision of Immigration Judge (“IJ”) M. Christopher Grant, which denied her application for asylum,withholdingof removal, and relief under the ConventionAgainstTorture (“CAT”). In re Zhu La Liang, No.A079 399 984 (B.I.A.Nov. 08, 2011), aff’g No. A079399 984 (Immig. Ct. Arlington, Nov. 17,2005). We assume the parties’ familiarity with theunderlying facts and procedural history in this case.1 I.Adverse CredibilityDetermination Under the circumstances of thiscase, we have reviewedboth theIJ’s and the BIA’s decisions. See Yun-Zui Guanv. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).The applicable standards ofreview are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 1 Liang did not challenge the IJ’s denial of CAT relief before the BIA and does not meaningfully challenge it in this Court. Thus, the claim is forfeited. 2 Cir. 2009).In pre-REAL ID Act cases, such as this one, inconsistencies andother discrepancies mayform the basis of anadverse credibility determination but must “bear a legitimate nexus” to the applicant’s claim ofpersecution and be “substantial” when measured against therecord as awhole. Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003). The agency,however, may relyon the cumulative effect of even minor inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). We conclude that substantial evidence supports the agency’s adverse credibility determination. In finding Liang not credible,the IJ reasonably relied in part on Liang’s demeanor, noting that she appeared very nervouswhenasked to explain inconsistenciesin hertestimony. See Majidi v.Gonzales, 430F.3d 77, 81 n.1 (2d Cir. 2005).We defer to thisfinding. Id. Further, the agency reasonably relied on inconsistencies and omissions in Liang’s various statementsin concluding she was notcredible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir.2008) (holding that for purposes of analyzing a credibility determination, “[a]n inconsistencyand anomission are functionallyequivalent”); see alsoSecaida- 3Rosales, 331 F.3d at 308. Contrary to Liang’s argument, the fact of her forced abortion was material, and bore a “legitimate nexus,” to her claim that she had suffered pastpersecution, and, therefore, the omission of that fact during her credible fearinterview formed a legitimatebasis for the IJ’sadverse credibility determination. See Secaida-Rosales, 331 F.3d at 307-08; see also Xiu Xia Lin,534 F.3d at 166-67 n.3. The IJ also reasonably relied on discrepancies between: (1) Liang’soriginal and amended asylum applications with respect tothe year in which theabortion occurred; (2) Liang’s and her husband’s testimony as to whether they had cohabited in China; and (3)Liang’s testimony and abortion certificate with regard to the date of the abortion procedure. Liang failed to provide compelling explanations for these discrepancies. See Majidi, 430F.3d at 80-81.Furthermore, the IJ reasonably found implausible Liang’s assertion that she chose todelaymarrying after discoveringthat she was pregnant despite her awarenessof the significant risks associatedwith conceiving a child out of wedlock. See Wensheng Yanv. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that wherethe IJ’s findings are“tethered to record evidence, and thereis nothing elsein the record from which 4 a firm conviction of error could properly bederived,” we will not disturb the inherent implausibility finding). Finally,becauseLiang does not challenge the IJ’s finding that she failed adequatelyto corroborate her claim,itstands as valid basis for the agency’s adverse credibility determination. See Shunfu Li v.Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Thus, given the absence of corroborating evidence, as well as the aforementioned omissions and discrepancies in Liang’s testimony,we identify noerror in the agency’s denial of asylum and withholding of removal on credibility grounds.SeePaul v. Gonzales,444 F.3d 148, 156 (2d Cir. 2006). II. Due Process Despite the IJ’s failure to conduct a de novo hearing on remandas ordered by the BIA, Liang has not demonstrated that she wasdeprived of due process during her proceedings. See LiHua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2dCir. 2006). Indeed, nothing in the record suggests that Liangwas prohibited from fully developing her testimony, that any of her evidencehad been ignored, or that the IJ madea determination onissues about which she had nonotice or opportunity to be heard. See id. Furthermore, Liang has not identified anything to suggest that the manner in which the IJconductedher proceedings undermined their fairness.Seeid. 5	_11-5060_ Liang v. Holder BIA _Grant,_ IJ Hom, _IJ_ A079 399 984 UNITED STATES COURT OF APPEALS FOR THE _SECOND_ _CIRCUIT_ SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE _PRECEDENTIAL_ EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR _AFTER_ JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED _BY_ _FEDERAL_ RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL _RULE_ 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE _EITHER_ THE _FEDERAL_ APPENDIX _OR_ AN ELECTRONIC DATABASE (WITH _THE_ NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A _COPY_ OF IT ON ANY PARTY NOT REPRESENTED _BY_ COUNSEL. At a stated term _of_ the United States Court of _Appeals_ for the _Second_ Circuit, held at the Thurgood Marshall United States Courthouse, _40_ _Foley_ Square, in _the_ City of New York, _on_ the 12th day of September, two _thousand_ thirteen. PRESENT: JOSÉ _A._ CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11-5060 _NAC_ ERIC H. HOLDER, _JR.,_ _UNITED_ STATES _ATTORNEY_ GENERAL, _Respondent._ _______________________________________ FOR _PETITIONER:_ _Lewis_ _G._ _Hu,_ New _York,_ New York. FOR _RESPONDENT:_ Stuart F. Delery, Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel, Genevieve Holm, Trial Attorney, Office of Immigration Litigation, United _States_ Department of Justice, Washington, _D.C._ _UPON_ DUE CONSIDERATION _of_ this _petition_ for review _of_ a Board _of_ Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for _review_ is DENIED. Zhu La _Liang,_ a native and citizen of _the_ People’s Republic _of_ _China,_ seeks review _of_ a November _8,_ 2011, order of the BIA, affirming the November 17, 2005, _decision_ of Immigration Judge (“IJ”) M. Christopher _Grant,_ which _denied_ _her_ _application_ for asylum, withholding of removal, and relief under the Convention Against _Torture_ (“CAT”). In re Zhu _La_ Liang, No. A079 399 984 (B.I.A. Nov. 08, 2011), aff’g No. _A079_ 399 _984_ (Immig. Ct. _Arlington,_ Nov. 17, 2005). We _assume_ the parties’ familiarity _with_ the _underlying_ _facts_ and procedural history _in_ this _case.1_ I. Adverse _Credibility_ Determination Under _the_ circumstances of this case, we have reviewed both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v. Gonzales, 432 _F.3d_ 391, 394 _(2d_ Cir. 2005). The applicable standards of _review_ are well-established. See 8 U.S.C. _§_ 1252(b)(4)(B); _Yanqin_ Weng v. Holder, _562_ F.3d 510, 513 (2d 1 _Liang_ did not challenge the IJ’s denial of CAT relief before the BIA and does not meaningfully challenge it _in_ this Court. Thus, the claim is forfeited. 2 Cir. 2009). In pre-REAL ID _Act_ cases, such as _this_ _one,_ inconsistencies and other discrepancies may _form_ the _basis_ of an adverse credibility determination but must “bear a _legitimate_ nexus” to the applicant’s claim _of_ persecution and be _“substantial”_ when measured against the record as a _whole._ Secaida-Rosales v. INS, _331_ F.3d _297,_ 307-08 (2d _Cir._ 2003). The _agency,_ however, may rely on the cumulative _effect_ of even minor inconsistencies. See _Tu_ Lin v. Gonzales, 446 _F.3d_ 395, _402_ (2d _Cir._ 2006). We conclude that substantial evidence supports _the_ agency’s adverse _credibility_ _determination._ In _finding_ Liang not _credible,_ the IJ _reasonably_ relied in part on Liang’s demeanor, noting that she appeared very nervous when asked to _explain_ inconsistencies _in_ _her_ testimony. See Majidi v. Gonzales, 430 _F.3d_ 77, 81 _n.1_ (2d _Cir._ 2005). We _defer_ to this finding. Id. Further, the agency reasonably relied on inconsistencies and omissions in Liang’s various statements in concluding she was not credible. _See_ _Xiu_ _Xia_ Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 _(2d_ Cir. 2008) (holding that _for_ purposes of analyzing a credibility determination, “[a]n _inconsistency_ and _an_ omission are functionally equivalent”); see _also_ Secaida- 3 Rosales, 331 F.3d at 308. Contrary to Liang’s argument, the fact of her forced abortion was material, and _bore_ a “legitimate nexus,” to _her_ claim that _she_ had suffered past _persecution,_ _and,_ therefore, the omission _of_ that _fact_ during _her_ credible _fear_ interview formed a legitimate basis for the IJ’s _adverse_ credibility determination. _See_ Secaida-Rosales, 331 F.3d at 307-08; _see_ also _Xiu_ Xia Lin, 534 F.3d _at_ 166-67 n.3. _The_ IJ also reasonably relied on _discrepancies_ between: (1) Liang’s original and amended asylum applications _with_ respect to the year in which _the_ abortion _occurred;_ (2) Liang’s and her husband’s testimony as to whether _they_ had cohabited in China; and (3) Liang’s testimony and abortion certificate with regard to _the_ date of the abortion procedure. Liang failed to provide compelling _explanations_ for _these_ discrepancies. See Majidi, 430 F.3d at _80-81._ Furthermore, the IJ reasonably _found_ _implausible_ Liang’s _assertion_ that she chose to delay _marrying_ after discovering _that_ she _was_ pregnant despite her awareness of the significant _risks_ associated _with_ conceiving a child out of wedlock. See _Wensheng_ Yan v. Mukasey, 509 F.3d 63, 67 _(2d_ _Cir._ _2009)_ (holding that where _the_ _IJ’s_ findings are _“tethered_ _to_ record evidence, and there is nothing _else_ in the record _from_ which 4 a firm conviction of error could _properly_ be derived,” we _will_ not _disturb_ the inherent _implausibility_ _finding)._ _Finally,_ _because_ Liang does not challenge the IJ’s finding that she failed adequately to corroborate her claim, it stands _as_ _valid_ basis for the agency’s _adverse_ credibility determination. _See_ _Shunfu_ Li _v._ Mukasey, _529_ F.3d 141, 146 (2d Cir. 2008). Thus, _given_ the absence of corroborating evidence, as _well_ as the aforementioned omissions _and_ discrepancies in Liang’s testimony, we identify no error in the agency’s denial of asylum and withholding _of_ removal on credibility grounds. See Paul v. Gonzales, 444 _F.3d_ 148, 156 _(2d_ Cir. 2006). II. Due _Process_ Despite the IJ’s failure _to_ conduct a de novo hearing on _remand_ as ordered by the BIA, Liang has not demonstrated that she _was_ _deprived_ _of_ due process _during_ her proceedings. See Li Hua Lin v. _U.S._ Dept. of Justice, 453 F.3d 99, 104-05 (2d _Cir._ 2006). Indeed, nothing in the record suggests that _Liang_ was _prohibited_ from fully developing _her_ testimony, _that_ _any_ of her evidence had been ignored, _or_ that _the_ _IJ_ made a determination _on_ issues _about_ which she had no notice or opportunity to _be_ _heard._ _See_ id. Furthermore, Liang has not identified anything _to_ suggest that the manner in which the IJ conducted her proceedings undermined their fairness. See id. 5
No. 2--95--0698 _________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Stephenson County. ) Plaintiff-Appellant, ) No. 93--CF--422 ) v. ) ) JOHN A. GOEBEL, ) Honorable ) Richard E. DeMoss, Defendant-Appellee. ) Judge, Presiding. _________________________________________________________________ JUSTICE HUTCHINSON delivered the opinion of the court: The State appeals from the order of the circuit court of Stephenson County granting the motion of the defendant, John A. Goebel, to dismiss an amended information filed against him on January 9, 1995. The State's motion to reconsider was denied, and this timely appeal was filed. We reverse and remand. The State petitioned this court for leave to supply us with additional authority; we granted the State's petition. On appeal to this court, the State raises one issue: whether reversal of the trial court's dismissal order is required, based on the authority of People v. DiLorenzo, 169 Ill. 2d 318 (1996). The State contends that the allegations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse. We agree with the State. Defendant was charged by information with the offense of criminal sexual assault. The information was later amended to charge defendant with committing the offense of aggravated criminal sexual abuse. The amended information alleged: "[Defendant], on or about the 10th day of November 1992 at and within Stephenson County, Illinois did commit the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of Chapter 38, Illinois Revised Statutes * Section 12--16(b) in that said defendant, [a family member] of [D.R.], knowingly committed an act of sexual conduct with [D.R.], who was under 18 years of age when the act was committed, in that said defendant rubbed his penis against the buttocks of [D.R.]." (Emphasis in original.) Section 12--16(b) of the Criminal Code of 1961 reads in pertinent part: "The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member." 720 ILCS Ann. 5/12--16(b) (Smith-Hurd Supp. 1996). The Criminal Code of 1961 defines "sexual conduct" in pertinent part as "any intentional or knowing touching or fondling by * the accused * of the sex organs * of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996). Defendant was tried before a jury on January 10-12, 1995. The State's first witness was the victim, D.R. D.R. testified to the events occurring on or about November 8 and 9, 1992, in which she, defendant, and her sister, Tonya, were at the residence of defendant and his wife, Darcy. D.R. testified that the three of them, D.R., Tonya, and defendant, were painting the kitchen, and, by the end of the evening, D.R. had paint in her hair and clothes. She testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to her sister for assistance. Defendant, instead, went upstairs into the bathroom and suggested she go to the basement and shower the paint out of her hair. D.R. testified that, upon exiting from the shower in the basement, defendant had come down the stairs, led her towards a workout bench, and, with her back facing him, exposed his penis to her. He then "started rubbing his penis up and down on [her] butt." D.R. also testified that defendant told her that she was too beautiful for her own good. D.R. testified that another incident occurred at defendant's residence after a funeral sometime at the end of June 1992. She testified that she and defendant went downstairs to talk, but that defendant started rubbing her back and put his hand down her pants. She testified that defendant took off D.R.'s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina. Defendant then exposed his penis to her, ejaculated, and instructed D.R. to taste the semen. According to D.R.'s testimony, another incident took place at defendant's residence around October 1992. D.R. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told her to go upstairs "so Darcy won't get suspicious." She testified that they went upstairs and defendant turned on the television. Defendant then proceeded to pull down D.R.'s pants, kiss her breasts and vagina, and put his finger in her vagina. D.R. next testified to an incident occurring in mid to late June 1993 at defendant's newly purchased residence. D.R., among others, was helping defendant renovate the residence prior to defendant and his family moving in. D.R. testified that, on this occasion, she had just finished going to the bathroom, but, before she could pull up her underwear and pants, defendant came in and put his fingers on her vagina and talked about his sex drive. D.R. testified that defendant then stopped, apologized, and said he could not help himself. She testified they then took a tour of the house, and, while they were upstairs, defendant laid D.R. down, took her pants down, and lifted her shirt and bra, exposing her breasts. D.R. testified that defendant then put his fingers in her vagina, kissed her breasts and vagina, and then attempted, but failed, to put his penis in her vagina. Defendant then instructed her to put her mouth on his penis, but then stopped and told her to get a cup. D.R. testified she went downstairs, got the cup, went back upstairs, and defendant again told her to put her mouth on his penis. D.R. said defendant then ejaculated in her mouth. Defendant then performed oral sex on D.R. D.R. testified that, during the ensuing conversation, defendant stated that "he didn't know if most [family members] did this but he thought they should because he was trying to teach [her]" about sex. On cross-examination, counsel for defendant attempted to elicit from D.R. specific dates, times, and places of the incidents, and whether any witnesses were present. Tonya, sister of D.R., testified next, and she recalled the events surrounding the November 8 and 9, 1992, incident. Tonya testified that D.R. had taken a bath upstairs after painting that evening and had called for Tonya, but that defendant went upstairs instead. She then testified that D.R. went to the basement to take a shower, and minutes later, while D.R. was still in the basement, defendant went downstairs. On cross-examination, Tonya testified as to her employment history, her knowledge of the June 1992 funeral, her recollection that defendant was in the basement with D.R. in November 1992, and the terms of her visitation with defendant. The State's last witness was Officer Richard Roodhouse. He testified about the investigation of the allegations against defendant. Roodhouse testified that defendant acknowledged his hand "fell against her breast" on	no. 2 - - 95 - - 0698 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ in the appellate court of illinois second district _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ the people of this state ) appeal from the circuit court of illinois, ) of stephenson r. ) plaintiff - appellant, ) no. 41 - - cf - - 422 ) v. ) ) john a. goebel, ) honorable ) richard e. demoss, defendant - author. ) judge, presiding. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ justice hutchinson delivered the opinion of the court : the state appeals from the order of the circuit court of stephenson county granting the motion of the defendant, john a. goebel, to dismiss any amended information filed against him on january 9, 1995. the state ' s motion to reconsider was denied, and this timely appeal was filed. we reverse and remand. the court petitioned this court for leave to supply us with this authority ; we granted the state ' s petition. on appeal to this court, the state raises one issue : whether reversal of the trial court ' s dismissal order is required, based on the authority of people v. dilorenzo, 169 ill. 2d 318 ( 1996 ). the state contends that the alterations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse. we agree with the state. defendant being charged by information with the offense of criminal sexual assault. the information was also amended to charge defendant with committing the offense of aggravated criminal sexual abuse. the amended information alleged : " [ defendant ], on or about the 10th day of november 1992 at and within stephenson county, illinois did commit the offense of aggravated criminal sexual abuse in violation of chapter 38, illinois revised statutes * * * section 12 - - 16 ( b ) in that said defendant, [ a family member ] of [ d. r. ], knowingly committed an act of sexual conduct with [ d. r. ], who was under 18 years of age when the act was committed, in that said defendant rubbed his penis against the buttocks of [ d. r. ]. " ( emphasis in original. ) section 12 - - 16 ( b ) of the criminal code of 1961 reads in pertinent part : " the accused commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member. " 720 ilcs ann. 5 / 12 - - 16 ( b ) ( smith - hurd supp. 1996 ). the criminal code of 1961 defines " sexual conduct " in pertinent part as " any intentional or knowing touching or fondling by * * * the accused * * * of the sex organs * * * of the victim * * * for the purpose of sexual gratification or arousal of the victim or the accused. " 720 ilcs ann. 5 / 12 - - 12 ( e ) ( smith - hurd supp. 1996 ). defendant was tried before a jury on january 10 - 12, 1995. the state ' s first witness was the victim, d. r. d. r. testified to the events occurring on or about november 8 and 9, 1992, in which she, defendant, and her sister, tonya, were at the residence of defendant and his wife, darcy. d. r. testified that the three of them, d. r., tonya, and defendant, were painting the kitchen, and, by the end of the evening, d. r. had paint in her hair and clothes. she testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to her sister for assistance. defendant, instead, went upstairs into the bathroom and suggested she go to the basement and shower the paint out of her hair. d. r. testified that, upon exiting from the shower in the basement, defendant had come down the stairs, led her towards a workout bench, and, with her back facing him, exposed his penis to her. he then " started rubbing his penis up and down on [ her ] butt. " d. r. also testified that defendant told her that she was too beautiful for her own good. d. r. testified that another incident occurred at defendant ' s residence after a funeral sometime at the end of june 1992. she testified that she and defendant went downstairs to talk, but that defendant started rubbing her back and put his hand down her pants. she testified that defendant took off d. r. ' s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina. defendant then exposed his penis to her, ejaculated, and instructed d. r. to taste the semen. according to d. r. ' s testimony, another incident took place at defendant ' s residence around october 1992. d. r. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told her to go upstairs " so darcy won ' t get suspicious. " she testified that they went upstairs and defendant turned on the television. defendant then proceeded to pull down d. r. ' s pants, kiss her breasts and vagina, and put his finger in her vagina. d. r. next testified to an incident occurring in mid to late june 1993 at defendant ' s newly purchased residence. d. r., among others, was helping defendant renovate the residence prior to defendant and his family moving in. d. r. testified that, on this occasion, she had just finished going to the bathroom, but, before she could pull up her underwear and pants, defendant came in and put his fingers on her vagina and talked about his sex drive. d. r. testified that defendant then stopped, apologized, and said he could not help himself. she testified they then took a tour of the house, and, while they were upstairs, defendant laid d. r. down, took her pants down, and lifted her shirt and bra, exposing her breasts. d. r. testified that defendant then put his fingers in her vagina, kissed her breasts and vagina, and then attempted, but failed, to put his penis in her vagina. defendant then instructed her to put her mouth on his penis, but then stopped and told her to get a cup. d. r. testified she went downstairs, got the cup, went back upstairs, and defendant again told her to put her mouth on his penis. d. r. said defendant then ejaculated in her mouth. defendant then performed oral sex on d. r. d. r. testified that, during the ensuing conversation, defendant stated that " he didn ' t know if most [ family members ] did this but he thought they should because he was trying to teach [ her ] " about sex. on cross - examination, counsel for defendant attempted to elicit from d. r. specific dates, times, and places of the incidents, and whether any witnesses were present. tonya, sister of d. r., testified next, and she recalled the events surrounding the november 8 and 9, 1992, incident. tonya testified that d. r. had taken a bath upstairs after painting that evening and had called for tonya, but that defendant went upstairs instead. she then testified that d. r. went to the basement to take a shower, and minutes later, while d. r. was still in the basement, defendant went downstairs. on cross - examination, tonya testified as to her employment history, her knowledge of the june 1992 funeral, her recollection that defendant was in the basement with d. r. in november 1992, and the terms of her visitation with defendant. the state ' s last witness was officer richard roodhouse. he testified about the investigation of the allegations against defendant. roodhouse testified that defendant acknowledged his hand " fell against her breast " on	No. 2 - - 95 - - 0698 _________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SRXOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE) Appeal from the Circuit Court OF ILLINOIS,) of Stephenson d9unty.) Plaintiff - Appellant,) No. 93 - - CF - - 422) v.) ) JOHN A. GOEBEL,) Honorable) Richard E. DeMoss, Defendant - Appellee.) Judge, Presiding. _________________________________________________________________ JUSTICE HUTCHINSON delivered the opinion of the court: The State appeals from the order of the circuit court of Stephenson County granting the motion of the defendant, John A. Goebel, to dismiss an amended information filed against him on January 9, 1995. The State ' s motion to reconsider was denied, and this timely appeal was filed. We reverse and remand. The State petitioned this court for leave to supply us with additional authority; we granted the State ' s petition. On appeal to this court, the State raises one issue: whether reversal of the trial court ' s dismissal order is required, bxDed on the authority of People v. DiLorenzo, 169 Ill. 2d 318 (1996 ). The SGaFe contends that the allegations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse. We agree with the State. Defendant was charged by information with the offense of criminal sexual assault. The information was later amended to charge defendant with committing the offense of aggravated criminal sexual abuse. The amended information alleged: " [Defendant ], on or about the 10th day of November 1992 at and within Stephenson County, Illinois did commit the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of Chapter 38, Illinois Revised Statutes * * * Section 12 - - 16 (b) in that said defendant, [a family member] of [D. R. ], knowingly committed an act of sexual conduct with [D. R. ], who was under 18 years of age when the act was committed, in that said defendant rubbed his penis against the buttocks of [D. R. ]. " (Emphasis in original.) Section 12 - - 16 (b) of the Criminal Code of 1961 reads in pertinent part: " The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member. " 720 ILCS Ann. 5 / 12 - - 16 (b) (Smith - Hurd Supp. 1996 ). The Criminal Code of 1961 defines " sexual conduct " in pertinent part as " any intentional or knowing touching or fondling by * * * the accused * * * of the sex organs * * * of the victim * * * for the purpose of sexual gratification or arousal of the victim or the accused. " 720 ILCS Ann. 5 / 12 - - 12 (e) (Smith - Yu3d Supp. 1996 ). Defendant was tried before a jury on January 10 - 12, 1995. The State ' s first witness was the victim, D. R. D. R. testified to the events occurring on or about November 8 and 9, 1992, in which she, defendant, and her sister, Tonya, were at the residence of defendant and his wife, Darcy. D. R. testified that the three of them, D. R. , Tonya, and defendant, were painting the kitchen, and, by the end of the evening, D. R. had paint in her hair and clothes. She testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to her sister for assistance. Defendant, instead, went upstairs into the bathroom and suggested she go to the basement and shower the paint out of her hair. D. R. testified that, upon exiting from the shower in the basement, defendant had come down the stairs, led her towards a workout bench, and, with her back facing him, exposed his penis to her. He then " started rubbing his penis up and down on [her] butt. " D. R. also testified that defendant told her that she was too beautiful for her own good. D. R. testified that another incident occurred at defendant ' s residence after a funeral sometime at the end of June 1992. She testified that she and defendant went downstairs to talk, but that defendant started rubbing her back and put his hand down her pants. She testified that defendant took off D. R. ' s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina. Defendant then exposed his penis to her, ejaculated, and instructed D. R. to taste the semen. According to D. R. ' s testimony, another incident took place at defendant ' s residence around October 1992. D. R. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told her to go upstairs " so Darcy won ' t get suspicious. " She testified that they went upstairs and defendant turned on the television. Defendant then proceeded to pull down D. R. ' s pants, kiss her breasts and vagina, and put his finger in her vagina. D. R. next testified to an incident occurring in mid to late June 1993 at defendant ' s newly purchased residence. D. R. , among others, was helping defendant renovate the residence prior to defendant and his family moving in. D. R. testified that, on this occasion, she had just finished goijT to the bathroom, but, before she could pull up her underwear and pants, defendant came in and put his fingers on her vagina and talked about his sex drive. D. R. testified that defendant then stopped, apologized, and said he could not help himself. She testified they then took a tour of the house, and, while they were upstairs, defendant laid D. R. down, took her pants down, and lifted her shirt and bra, exposing her breasts. D. R. testified that deDenXant then put his fingers in her vagina, kissed her breasts and vagina, and then attempted, but failed, to put his penis in her vagina. Defendant then instructed her to put her mouth on his penis, but then stopped and told her to get a cup. D. R. testified she went downstairs, got the cup, went back upstairs, and defendant again told her to put her mouth on his penis. D. R. said defendant then ejaculated in her mouth. Defendant then performed oral sex on D. R. D. R. testified that, during the ensuing conversation, defendant stated that " he didn ' t know if most [family members] did this but he thought they should because he was trying to teach [her] " about sex. On cross - examination, counsel for defendant attempted to elicit from D. R. specific dates, times, and places of the incidents, and whether any witnesses were present. ToHyX, sister of D. R. , testified next, and she recalled the events surrounding the November 8 and 9, 1992, incident. Tonya testified that D. R. had taken a HatT upstairs after painting that evening and had called for Tonya, but that defendant went upstairs instead. She then testified that D. R. went to the basement to take a shower, and minutes later, while D. R. was still in the basement, defendant went downstairs. On cross - examination, Tonya testified as to her employment history, her knowledge of the June 1992 funeral, her recollection that defendant was in the basement with D. R. in November 1992, and the terms of her visitation with defendant. The State ' s last witness was Officer Richard Roodhouse. He testified about the investigation of the allegations against defendant. Roodhouse testified that defendant acknowledged his hand " fell against her breast " on	No. 2--95--0698 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit OF ILLINOIS, ) of Stephenson County. ) Plaintiff-Appellant, 93--CF--422 ) v. ) ) JOHN GOEBEL, ) Honorable ) Richard E. DeMoss, Defendant-Appellee. ) Judge, _________________________________________________________________ JUSTICE HUTCHINSON delivered the opinion of the court: The appeals from the order of the circuit court of Stephenson County granting the motion of the defendant, John A. Goebel, to dismiss an amended information filed against him on January 9, 1995. The State's motion to reconsider was denied, and this timely appeal was filed. We reverse and remand. The State petitioned this court for leave to supply us with additional authority; we granted the State's On appeal to this court, raises issue: whether reversal of the trial court's dismissal order required, based on the authority of People v. DiLorenzo, 169 Ill. 2d (1996). The State contends the allegations in the amended information were sufficient to state the offense of aggravated sexual abuse. We agree with the State. Defendant was charged by information with the offense of criminal sexual assault. information was later amended to charge defendant with committing the offense of aggravated criminal sexual abuse. The amended information alleged: "[Defendant], on or about the 10th day of November at and within Stephenson County, Illinois did commit the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of Chapter 38, Illinois Revised 12--16(b) that said defendant, [a family member] of [D.R.], knowingly committed an act sexual conduct with [D.R.], who was 18 years of age when the act was committed, in that said defendant rubbed his penis against the buttocks [D.R.]." in original.) Section 12--16(b) of the Criminal Code of 1961 reads in pertinent part: "The commits aggravated criminal sexual abuse he or she an act of sexual conduct with victim who was under 18 of age when act was committed and the accused was a family member." 720 ILCS Ann. 5/12--16(b) (Smith-Hurd 1996). The Criminal Code of 1961 defines "sexual conduct" in pertinent part as "any or touching or fondling * the accused * of the sex organs * of the victim * for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996). Defendant was before a jury January 10-12, 1995. The State's first witness was the victim, D.R. D.R. testified to the events or about November 8 and 9, in which she, defendant, and her sister, Tonya, were at the residence of defendant and his wife, Darcy. testified the three of them, D.R., Tonya, and were painting the kitchen, and, by the end of the evening, D.R. had paint in her and clothes. testified that she went upstairs to take a bath, because the paint was still in her hair, she called to her sister for assistance. Defendant, instead, upstairs the bathroom suggested she go the basement and shower the paint out of her hair. D.R. testified that, upon exiting from the shower in the basement, defendant had down the stairs, her towards a workout bench, and, with her back facing him, exposed his penis her. He then "started rubbing penis up and down on butt." D.R. also testified that defendant told her that she was too beautiful for own good. D.R. testified another incident occurred at residence after a funeral sometime at the end of June 1992. She testified that she and defendant downstairs to talk, but that started her back and put his hand down her pants. She testified that defendant took off D.R.'s pants, kissed her breasts, put his in her vagina, and then put his mouth on her Defendant exposed his to her, ejaculated, and instructed D.R. to taste the semen. According to D.R.'s testimony, another incident took place at defendant's residence October 1992. D.R. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told go upstairs "so Darcy won't get suspicious." She testified that went upstairs and defendant turned on the television. Defendant then proceeded to pull down pants, kiss her breasts and vagina, and his finger her vagina. D.R. next testified to an occurring in mid to late June 1993 at newly purchased residence. D.R., among others, was helping defendant renovate the residence prior to defendant and his family moving in. testified that, on this occasion, she had just finished going to bathroom, but, before she could pull up her underwear and defendant came and put his fingers on her vagina and talked about his sex drive. D.R. testified that defendant stopped, apologized, and said he could help himself. She they then took a tour of the house, and, while they were upstairs, defendant laid D.R. down, took her pants down, lifted her shirt and bra, exposing her breasts. D.R. testified that defendant then put his fingers in her vagina, kissed breasts and vagina, and then attempted, but failed, to his penis in her vagina. Defendant instructed her to put her mouth on his penis, but then stopped and told her to get a cup. testified she went got the cup, went back upstairs, and defendant again told her to put her mouth on his penis. said defendant then ejaculated in her mouth. Defendant then performed oral sex on D.R. D.R. that, the conversation, defendant that "he didn't know if most [family members] did this but he thought should because he was trying to teach [her]" about sex. On cross-examination, counsel defendant to elicit from D.R. specific dates, times, and places of the incidents, and whether any witnesses were present. Tonya, sister of D.R., testified next, and she recalled events surrounding November 8 and 9, 1992, incident. Tonya testified that D.R. had taken a upstairs after painting that evening and had called Tonya, that defendant went upstairs She then testified that D.R. to the basement to take a shower, and later, while D.R. was still in the basement, went downstairs. On cross-examination, Tonya to her employment history, her of June 1992 funeral, her recollection that defendant was in the basement with D.R. November 1992, and terms of her visitation with defendant. The State's last witness Richard Roodhouse. testified the investigation the allegations against Roodhouse testified that defendant acknowledged his hand "fell against her breast" on	nO. 2--95--0698 _________________________________________________________________ In the AppELLAte CoURt of ILLinoIS secoND DISTRicT _________________________________________________________________ THE peOpLE oF THe STate ) apPeaL fROM tHe CIrcuIt coUrt Of IlLInoIS, ) of StePhenson CounTy. ) PlaINtIfF-AppelLaNt, ) NO. 93--CF--422 ) V. ) ) JOHN a. goEBEL, ) HONorAblE ) rIChaRD E. DEMoss, defEndAnt-APPELLeE. ) JuDGe, prESIdinG. _________________________________________________________________ JUStiCe hutCHiNsOn dELIvErED The oPinION of The cOurT: tHe sTATE aPPEaLs FROm the Order of tHe circUit cOURt OF StepHENSon CoUnTy GranTInG thE MoTioN Of thE deFEndANt, jOhn A. gOeBEL, tO DismiSs aN AMeNded inFORMATion FILEd AGAInsT hiM oN JANuary 9, 1995. The STaTe's MotioN TO RECoNSIDEr was DeNIED, anD tHiS tIMELY APpeaL WaS fIled. We reverSe AND REMaND. thE staTE peTitioNEd thiS COuRT For leaVE To sUppLy US wITH aDdItiOnAl authoriTY; WE gRanted tHE stAtE's PEtITIOn. on AppeaL TO tHIS cOurT, THe sTatE RaiSEs one isSuE: wHetHEr reVErsaL OF THE tRIal coUrt'S DISmISSAl order is reqUireD, BasED oN the auTHORItY oF PeOple V. dILORENZO, 169 iLL. 2d 318 (1996). tHe sTaTE cOntEnDS THaT the ALlegaTiONs In tHE amEnDed iNFORMaTioN weRe sufFICieNT tO sTaTe THE OFFEnSE of AGgraVatEd crimINaL sEXuaL ABuSe. wE agReE wIth THe StATE. DeFENdant WAs chARged bY INFOrMation WITh tHE offENSE of cRIMinaL seXual asSaUlT. the iNForMAtiON WAs lAter amEndED To cHARGE Defendant wiTh COmMiTTinG thE offEnsE oF agGravateD CRimINaL SEXuaL AbUsE. tHe AMEndeD INfORmaTiOn aLLeGeD: "[DeFEnDaNT], On OR ABout THe 10th DAy of NOvEMbeR 1992 at And WiTHIN sTEPhEnson cOuNtY, Illinois DID coMMIt THE OFfenSE Of aggrAvaTED crImiNal seXUal abusE IN ViolaTION oF ChaPTeR 38, illinOIs ReViSEd statUtEs * seCtiOn 12--16(B) iN THAT SaiD DEFeNDAnt, [A famIlY mEMber] Of [D.R.], knOwINglY cOMmITtED an ACt Of SEXuAl ConducT wiTh [D.r.], wHO wAs unDeR 18 Years Of aGE WHEN thE act wAs cOmMIttEd, IN THaT saID dEfENdaNt rUBBed His PENIS AGaInST tHE BUtTockS oF [d.R.]." (EmpHaSiS iN oRigiNAL.) sEcTiOn 12--16(b) OF ThE CRImINaL coDE OF 1961 ReadS in PerTIneNT PART: "The ACcUseD comMiTS aggRAvatEd crIMINAL SEXuaL AbUSE If HE OR sHE CommITS an aCT Of SexuAl ConDuCt WiTh a vICtIM whO wAS UnDEr 18 YeArs Of agE WHen tHE ACt WaS cOmmITTeD aNd The AccUsed WAs a FAMILy mEmber." 720 ILcS anN. 5/12--16(b) (SmItH-HURd suPp. 1996). THe cRiMinAl cOde of 1961 DEFINES "sExual conducT" In pErtiNENT pARt As "ANY iNteNTionAl oR KNOwing TOuChiNg Or FoNDling BY * the accUseD * Of tHe sex oRgANs * OF the victiM *** fOr thE PUrPose Of seXUAl GrAtifiCATion or arOuSaL of THe vICtIM OR thE aCcUSeD." 720 Ilcs ANn. 5/12--12(e) (smiTH-hURd SUpp. 1996). defeNDant WAS TrIED bEfOre A JUry on JAnUaRY 10-12, 1995. The stATe's FirsT wItNESs WAS ThE victim, d.r. d.R. TeStifIed To The EveNts occUrRIng on oR ABoUT NovembER 8 aND 9, 1992, iN wHiCh sHE, DEFEndANt, and HeR sIstER, TonYa, werE aT THE RESIdeNce Of dEfenDAnT aNd HIS wiFE, darCy. d.R. tEsTIfIed tHAT tHE thREE OF theM, d.R., tOnYa, And DEFeNDANt, WeRe PAINtINg tHe KITcHen, aNd, bY tHE eND of the EveNinG, D.r. Had PAINT IN Her hAIr AND CLOtHes. She TestIFIEd ThAT shE wEnt UPSTairs To take a Bath, bUT, BeCaUSE tHe PAint WaS StIlL iN HER HAIr, ShE calleD tO HER SISter fOR aSsIstaNCe. dEFendAnT, inSteAD, wEnT uPSTAiRS InTO tHE BaTHroom aNd sUggESteD she Go to The BaSEmENt And shOwer The pAinT OUt of HeR HAIr. d.R. TestiFiED THaT, upON exITing FrOM tHe sHOWER iN tHe bASEMent, DEFenDAnT HaD cOME DOWn tHe stAiRS, lED Her tOwARDS a WOrkoUt BenCH, aND, wItH hEr BAcK fACing hiM, ExposEd HIs PEnis tO HER. hE theN "StARtED RuBBing hiS pENiS Up AND DowN ON [heR] bUTt." d.R. aLsO TESTIFIED THat defenDANT TOLd HeR tHaT She Was TOO beaUtIfUl FOr HER Own GOod. D.r. TesTifIED ThAt aNOThER iNCIdEnT ocCURred AT defeNdANT'S RESIDeNCe aFTer A FuneRaL sOmeTime AT the end OF JUne 1992. SHE TEStiFIED tHaT She anD DEFeNdaNT WENt DOWnSTaIrs To TaLk, buT that DefEndaNt sTarTED RUBBiNG heR bacK aNd Put his hand dOwN hER pAnTS. SHe tEStifIED tHaT dEFENdant ToOk Off d.r.'s PAntS, kisSeD hEr BreastS, pUT his fiNgeR iN HER VAgIna, aND Then pUt hIs moUtH ON HER VagiNa. defeNDAnT Then expOsED His PeNis tO heR, eJAcUlaTEd, anD iNSTrUcTed D.R. To taSte thE seMeN. acCordINg tO D.R.'s TESTiMONY, AnoThEr INcidENT tooK PLacE aT deFeNDant's ResideNCe aRoUnd ocTober 1992. D.R. teStified ThAT SHE AND defENdANt WERE IN thE LIVING rOOM and she hAD beEN getTiNG Him BEeRS fROM The reFrIGEratOr WhEN he TolD heR To gO uPSTAIRs "sO dARCY WoN't gET susPICIOUS." SHe TestIFiED tHaT tHeY WeNT UpsTaiRs anD deFeNDaNT tURNEd on The TElEVISION. DeFenDANT thEn prOceEDeD to PuLL doWN D.R.'s PAntS, kIss hEr BrEAstS And VaGina, aNd pUt His fINGER In heR VagiNA. d.r. NExt tEStiFied to An INCidenT OcCuRRING in Mid tO lATe jUNe 1993 at DefeNdANT's newly purCHasED rESIDenCE. d.R., aMONG OthErs, wAS HELPING dEfENDant renoVaTE tHE rESIdeNce pRior to deFEnDANt anD HIs familY MOvING iN. d.R. tEStIFiEd that, oN thIS occasION, shE Had juST fINIShEd GoinG to ThE batHROoM, bUt, bEfORe SHe coUld pull Up Her UNDeRwEAR ANd pANtS, defEndaNt CaMe iN aNd put hIs FiNGeRS On Her vAGInA ANd talkeD aboUt His sex DRIVe. D.R. TEStifiED tHaT dEfEnDaNT ThEn STOPpEd, apoLoGiZed, aND saiD hE couLD NOt HeLP HiMseLf. she TeStifIeD thEy tHEN tOok A Tour oF tHe House, aNd, WHILe THEy wEre upsTAirs, DEFENDant LAid d.r. doWn, TooK hEr PaNts DOwN, anD lifTeD her ShiRt aNd BRa, ExPOsing heR BrEAStS. d.r. tEsTIFIED That dEfendANT TheN puT his FiNGErs In HER vaGINA, kISSEd HeR BreastS aNd VAGina, and tHEn ATTEmpTed, But FAiled, tO PUt HiS penis in hER VagINa. defENdANt theN InStRuCteD hER to PuT hER MoutH oN His PeNiS, But THen StOPpeD AnD TOld heR tO geT a CUp. d.r. teStIFIeD sHe WENT DowNStAirS, Got ThE cuP, wENT BACk UPSTaiRs, And dEFEndant agaIN Told hER TO pUT her MOUTH oN His PEniS. d.r. saiD DEfEnDanT TheN EjACuLateD in HER MOutH. DEFEnDanT THeN PERFORmEd ORAl seX oN D.r. D.r. testIFiED that, duriNg THe eNsuINg CONVERSatiON, DefEnDAnT sTAtED tHAT "hE DIDN't kNoW iF MOst [FamILy MEmbErS] DId thIS but he ThOugHt TheY sHoUlD bECaUsE He waS trYING To teACh [Her]" ABOut SEX. on cROss-eXAmiNaTIoN, cOUNsEL fOr dEfENdANt AttEmPteD tO ELiCiT frOm D.R. sPECifIc DAtes, TimES, aND PlAceS oF the IncidenTS, And wHeTher ANy WitNESseS WeRE PRESenT. TONya, SisTER of D.R., TEStIfieD NExT, anD SHe rEcALLEd tHe EVeNTS sURroUNding the NOveMBEr 8 and 9, 1992, incidENT. TonYa TEstiFiEd tHat d.r. hAD tAKen A bATh UpsTairs AfTeR PAINting ThAt EVeNIng AND Had CaLlED foR tONya, bUT tHaT deFENdaNT Went uPstaIRS instEAD. SHe thEn tEstified THaT D.r. Went To ThE bASEmENt tO taKe A SHoWer, And MinUtEs lAter, WHilE D.r. was stILl in tHE basemeNT, DEfEndanT went DOwnStAirS. on cROSS-ExaminAtION, TOnYa testiFIED AS tO Her eMploYmeNt hISToRY, her knOwLedgE oF THE JUNE 1992 FunerAL, HER reCOlleCtion tHaT DeFENDant was IN ThE baseMenT WIth D.R. IN NoVember 1992, anD tHe TeRmS of Her vIsItaTioN WiTh defEnDAnT. The STATE'S LAST WiTNess WaS OfFICer RicHarD roOdhOuSE. HE teSTIFIeD AboUt tHE iNvesTigatioN oF THE aLlEgATiOns aGaiNst dEFEnDANT. RoODHoUsE TEStIfieD that DEfenDAnT AcknoWLeDgED hIs HAnd "fELl AgAINsT hER BrEAST" ON	No.2--95--0698 _________________________________________________________________ INTHE APPELLATE COURT OF ILLINOIS SECOND DISTRICT_________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from theCircuit Court OF ILLINOIS, ) of Stephenson County. ) Plaintiff-Appellant, )No. 93--CF--422 ) v. ) ) JOHN A. GOEBEL,) Honorable ) Richard E.DeMoss, Defendant-Appellee. ) Judge, Presiding. _________________________________________________________________ JUSTICE HUTCHINSONdelivered the opinion ofthe court: The State appeals fromtheorder of the circuit court of Stephenson County granting the motionof the defendant, John A.Goebel, to dismiss an amended information filed against him on January 9, 1995. The State's motion toreconsider wasdenied,and this timely appeal was filed. We reverseand remand. The State petitioned this court for leave to supply uswith additional authority; wegranted the State's petition. On appeal to this court, the State raises one issue: whether reversal ofthe trial court'sdismissal order isrequired, based on the authority of People v. DiLorenzo, 169 Ill. 2d 318 (1996). TheState contendsthat the allegations in the amended information were sufficient tostate the offense of aggravated criminal sexual abuse. We agree with the State. Defendant was charged by information with the offense of criminalsexual assault. The information was lateramended to charge defendantwith committing theoffense of aggravated criminal sexual abuse. The amended information alleged:"[Defendant], on or about the 10th day of November 1992at and within Stephenson County, Illinois did commit the offense of AGGRAVATED CRIMINAL SEXUAL ABUSEin violationof Chapter 38, Illinois Revised Statutes * Section 12--16(b)inthat said defendant, [a family member] of [D.R.], knowingly committed anactof sexual conduct with [D.R.], who was under 18 years of age when the act was committed,in thatsaid defendant rubbed hispenis against thebuttocks of[D.R.]." (Emphasisinoriginal.) Section12--16(b) of the Criminal Code of1961reads in pertinentpart: "The accusedcommits aggravated criminalsexual abuse if he or she commits an act of sexual conduct with avictim who was under 18 years of age when the act was committed and theaccused was a family member." 720 ILCS Ann. 5/12--16(b) (Smith-Hurd Supp.1996). The Criminal Code of 1961defines "sexual conduct" in pertinent partas "any intentionalor knowing touching orfondlingby * the accused * of the sex organs * of the victim *** for thepurposeof sexualgratification or arousal of the victim or the accused."720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996). Defendant was tried before a jury on January 10-12, 1995. The State's firstwitness was the victim, D.R. D.R. testified to the events occurring onor about November8 and 9, 1992, inwhich she, defendant, and her sister,Tonya, were at the residence of defendant and his wife, Darcy. D.R. testified that the threeof them, D.R., Tonya, and defendant,were painting the kitchen, and, by the end of the evening, D.R. had paint in her hair and clothes. She testified that shewent upstairs to take a bath, but, because thepaint was still in her hair,she called to her sister for assistance. Defendant, instead, went upstairs into the bathroom and suggested she go to thebasement andshower the paint out of her hair. D.R. testified that, upon exiting from the shower in thebasement, defendant had come down the stairs,led her towards a workoutbench, and,with her back facing him,exposed his penis to her. He then "started rubbing hispenis up and down on [her] butt." D.R. also testified that defendanttold her thatshe was too beautifulfor her own good. D.R. testified that another incident occurred at defendant's residenceafter afuneral sometime at the end of June 1992.She testified that she and defendant went downstairs to talk, butthat defendant started rubbing her back and put his hand downher pants. She testified that defendant took off D.R.'s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina. Defendant then exposed hispenis toher, ejaculated, and instructedD.R. to taste the semen. According to D.R.'s testimony, another incident took place at defendant's residence around October 1992. D.R. testifiedthat she and defendant were in the living roomand shehad been getting him beers fromthe refrigerator when he told her to go upstairs "so Darcy won't get suspicious." Shetestified that they went upstairs and defendant turned onthe television. Defendant then proceededto pull downD.R.'s pants, kiss her breasts and vagina, and put his finger in her vagina. D.R. next testified to an incident occurring in mid to late June 1993 at defendant's newly purchased residence. D.R.,among others, was helping defendant renovatetheresidence priortodefendant and his family movingin. D.R. testified that, on this occasion, she hadjust finished going to the bathroom, but, before she could pull up her underwear and pants, defendantcame in andput hisfingers on her vagina and talked abouthis sex drive. D.R. testified that defendant then stopped, apologized, and said he could not help himself. She testified they then took a tour of the house, and,while they were upstairs, defendant laid D.R. down, took her pants down, andlifted her shirtand bra, exposingherbreasts. D.R. testified that defendant thenput his fingers inher vagina, kissed her breasts and vagina,and then attempted, but failed, to put his penis in hervagina. Defendant then instructed her to put her mouth on his penis, but then stopped and told her to get a cup. D.R. testified she went downstairs, got the cup, went back upstairs, and defendantagain told her to puther mouth on his penis.D.R. said defendant then ejaculated in her mouth. Defendant then performed oralsex on D.R. D.R. testifiedthat, during the ensuing conversation, defendant stated that "he didn't know if most [familymembers] did this buthe thoughtthey should because he was trying to teach [her]"about sex. On cross-examination, counselfor defendant attempted to elicitfrom D.R. specific dates, times, and places of the incidents, and whether any witnesses werepresent. Tonya, sister of D.R., testified next, and sherecalled theevents surrounding theNovember 8 and 9, 1992, incident. Tonya testified that D.R. had taken abath upstairs afterpainting that evening and had called forTonya, but that defendantwent upstairs instead. She then testified that D.R. went to the basement to take a shower, and minutes later, while D.R.was still in the basement, defendant went downstairs. On cross-examination,Tonya testifiedasto her employment history, her knowledge of theJune 1992 funeral,herrecollection that defendant was in the basement with D.R. in November 1992, and the terms of her visitation withdefendant. TheState's last witness was Officer Richard Roodhouse. He testifiedabout the investigationof the allegationsagainst defendant. Roodhouse testified thatdefendant acknowledged his hand "fell againsther breast" on	No. 2--95--0698 _________________________________________________________________ IN _THE_ APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Stephenson County. _)_ Plaintiff-Appellant, ) No. 93--CF--422 ) v. ) ) _JOHN_ A. _GOEBEL,_ ) Honorable ) Richard E. DeMoss, _Defendant-Appellee._ _)_ Judge, Presiding. _________________________________________________________________ _JUSTICE_ HUTCHINSON delivered _the_ opinion of the court: The State appeals from the _order_ of the circuit court _of_ Stephenson County granting the motion of the defendant, John A. Goebel, to _dismiss_ an _amended_ information filed against him on January 9, _1995._ _The_ _State's_ _motion_ _to_ _reconsider_ was denied, and this timely appeal _was_ filed. We reverse and remand. The State petitioned this court for _leave_ to supply _us_ _with_ additional authority; we granted the State's petition. On appeal to this court, the State _raises_ one _issue:_ _whether_ reversal of the trial court's dismissal order is required, based on _the_ authority of People v. DiLorenzo, 169 _Ill._ _2d_ 318 (1996). The State contends that the allegations in the _amended_ information _were_ sufficient to state the _offense_ of aggravated criminal sexual abuse. We agree with the State. _Defendant_ was charged by information with the offense of criminal sexual assault. The information was _later_ amended to charge defendant _with_ committing the offense _of_ aggravated criminal sexual abuse. _The_ amended information alleged: "[Defendant], on or about _the_ 10th day _of_ November 1992 at and within Stephenson County, _Illinois_ did commit the _offense_ _of_ AGGRAVATED CRIMINAL _SEXUAL_ ABUSE in violation of Chapter 38, _Illinois_ _Revised_ _Statutes_ _*_ Section _12--16(b)_ in that said defendant, [a family member] of [D.R.], _knowingly_ _committed_ an act _of_ _sexual_ conduct with _[D.R.],_ who was _under_ _18_ years _of_ age when _the_ act was committed, in _that_ said defendant rubbed _his_ penis against the _buttocks_ of [D.R.]." (Emphasis _in_ original.) _Section_ 12--16(b) of the Criminal Code _of_ _1961_ reads in pertinent part: "The _accused_ _commits_ aggravated criminal _sexual_ abuse if he or she commits an act of _sexual_ conduct with a victim _who_ was under 18 years _of_ age when the act _was_ committed and the accused was _a_ family member." 720 ILCS Ann. _5/12--16(b)_ _(Smith-Hurd_ Supp. 1996). _The_ _Criminal_ Code of 1961 defines "sexual _conduct"_ in _pertinent_ _part_ as "any intentional or knowing touching or _fondling_ by * the accused _*_ _of_ the sex organs * of the victim *** for the purpose of sexual _gratification_ or _arousal_ of the victim or the accused." _720_ ILCS Ann. 5/12--12(e) _(Smith-Hurd_ Supp. 1996). Defendant _was_ tried before _a_ jury on _January_ 10-12, _1995._ _The_ _State's_ first _witness_ was the victim, D.R. D.R. testified to the events occurring on or about November 8 and _9,_ 1992, in which she, defendant, _and_ _her_ _sister,_ Tonya, were at the residence of _defendant_ and _his_ wife, Darcy. D.R. testified that the _three_ of them, D.R., Tonya, and defendant, were painting the kitchen, and, by the _end_ of the evening, D.R. had paint in her hair and _clothes._ _She_ testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to _her_ sister for _assistance._ Defendant, instead, went upstairs into the bathroom and suggested she go to _the_ basement _and_ shower the paint out of her hair. D.R. testified that, upon exiting from the shower in the basement, defendant _had_ _come_ _down_ the stairs, led her towards a workout bench, and, with her _back_ facing him, exposed his penis to her. _He_ _then_ _"started_ rubbing _his_ penis up and _down_ _on_ [her] _butt."_ D.R. also _testified_ _that_ defendant _told_ her that she was _too_ beautiful _for_ her own good. D.R. testified that another incident occurred at defendant's residence after _a_ _funeral_ _sometime_ at the end _of_ June 1992. She testified that _she_ _and_ _defendant_ went downstairs to talk, but _that_ defendant started rubbing _her_ back and put his hand down her pants. _She_ testified that defendant _took_ off D.R.'s pants, kissed her breasts, put _his_ finger in her vagina, _and_ then _put_ his mouth on her vagina. Defendant then exposed his penis to _her,_ _ejaculated,_ and instructed D.R. to taste the semen. According _to_ D.R.'s testimony, another incident took place at defendant's residence around October 1992. D.R. testified that she and defendant were in the _living_ _room_ and she _had_ been getting him beers from the refrigerator when he told her to go upstairs "so Darcy won't get _suspicious."_ She testified that they went upstairs and defendant turned on _the_ _television._ Defendant then proceeded to pull down D.R.'s pants, kiss her _breasts_ and _vagina,_ and put _his_ _finger_ _in_ her _vagina._ D.R. next _testified_ to an incident occurring in mid to late June _1993_ at defendant's newly _purchased_ residence. D.R., among others, was helping defendant renovate the _residence_ prior to defendant and _his_ family moving in. _D.R._ testified that, on this occasion, she had _just_ finished _going_ to the bathroom, but, before _she_ _could_ _pull_ up her _underwear_ _and_ pants, defendant came in and put his fingers on _her_ vagina and talked about _his_ sex drive. D.R. testified _that_ defendant then stopped, apologized, and said _he_ _could_ _not_ help himself. She _testified_ they then took _a_ tour of the house, _and,_ _while_ they were upstairs, defendant laid D.R. down, took her _pants_ down, and lifted her shirt _and_ bra, exposing her breasts. D.R. testified that defendant then put his _fingers_ in her vagina, kissed her breasts _and_ vagina, and then attempted, but _failed,_ _to_ put his penis in her _vagina._ Defendant then instructed her to put _her_ _mouth_ on his penis, but _then_ stopped and told her to _get_ a cup. D.R. testified she _went_ downstairs, _got_ the cup, went back upstairs, and defendant again _told_ her to put _her_ mouth on his _penis._ D.R. said defendant then ejaculated in her mouth. Defendant then performed oral sex on D.R. D.R. testified that, during the ensuing conversation, defendant stated that _"he_ didn't know if most _[family_ members] _did_ this but _he_ thought they should _because_ he was trying to teach _[her]"_ about sex. _On_ cross-examination, counsel for defendant attempted to elicit from D.R. specific _dates,_ _times,_ _and_ _places_ of _the_ incidents, and whether any witnesses _were_ present. Tonya, sister of D.R., testified next, and she recalled _the_ events surrounding the November _8_ and _9,_ _1992,_ incident. Tonya testified that _D.R._ had taken a bath upstairs after painting that _evening_ and had called for _Tonya,_ but that _defendant_ went upstairs instead. She then _testified_ _that_ D.R. went to the basement to take _a_ shower, and minutes _later,_ while D.R. _was_ still in the basement, defendant went downstairs. On cross-examination, Tonya _testified_ as to her _employment_ history, her knowledge _of_ the June 1992 _funeral,_ _her_ recollection that defendant was in the basement with D.R. in November 1992, and _the_ terms of her visitation with defendant. The State's last witness was _Officer_ Richard Roodhouse. He testified _about_ the investigation of the allegations against defendant. Roodhouse _testified_ that defendant _acknowledged_ his hand "fell against _her_ breast" on
223 F.Supp.2d 286 (2002) Jeffrey E. SIMPSON, Plaintiff v. Cheryl GALLANT, et al., Defendants No. CIV. 02-15-B-K. United States District Court, D. Maine. September 25, 2002. Jeffrey E. Simpson, South Windham, ME, Pro se. Michael J. Schmidt, Esq., Wheeler & Arey, P.A., Waterville, ME, for Defendants. MEMORANDUM OF DECISION KRAVCHUK, United States Magistrate Judge. Jeffrey Simpson is seeking remedies for alleged violations of his constitutional right to have access to the telephone and mail services when he was a pretrial detainee at the Penobscot County Jail. (Docket Nos. 1, 7, 8, & 15.) A motion to dismiss filed by the defendants, Cheryl Gallant, Richard Clukey, and Edward Reynolds[1] was denied. 287 (Docket Nos. 26 & 31.) The parties have now consented to proceed before the magistrate judge.[2] Simpson has filed a motion for summary judgment (Docket No. 38) which he has since clarified to be a motion for partial summary judgment vis-à-vis a claim that he was unable to orchestrate bail in the period between October 20, 2001, through January 21, 2002, because he was denied access to a phone despite his express request to use the phone to arrange bail (Docket No. 52). The defendants have responded to this motion and have filed a cross motion for summary judgment as to all of Simpson's claims. (Docket No. 44.) I DENY Simpson's motion for summary judgment and GRANT summary judgment to the defendants on Simpson's claim that his constitutional rights were violated when his request to make a collect call to arrange bail was denied. As to the remainder of Simpson's claims relating to phone and mail access I conclude that Simpson has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a) and, because the defendants press for disposition on this ground, these claims are DISMISSED WITHOUT PREJUDICE. Background Broadly put, Simpson claims that while he was a pretrial detainee at the Penobscot County Jail he was placed in disciplinary segregation for violations of jail rules. During the period he spent in segregation he was completely denied access to the phones and he was allowed to mail only three personal letters a week, with postage paid by the jail pursuant to a jail policy. He was not allowed to send additional mail using his own postage. On January 21, 2002, Simpson was released from custody on bail that was posted by an associate. On February 21, 2002, Simpson was found not guilty on one charge after a jury trial. On February 14, 2002, all additional counts against Simpson triggering his detention from October 10, 2001, through January 21, 2002, had been dismissed. Simpson's theory of the case is that Penobscot County Jail policies pertaining to outgoing mail and its policy prohibiting the use of a phone for any reason by inmates not in good standing violated his right to prepare his defense and make bail. At the motion to amend/motion to dismiss juncture it was clarified that Simpson pursues these three defendants in their official capacities challenging the constitutionality of the Jail's policy or custom. See Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (observing that a § 1983 suit may be brought "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for under § 1983").[3] Discussion A. Summary Judgment Standard Typically the summary judgment standard is phrased in terms of moving and nonmoving parties but in this instance the plaintiff and the defendants are cross-movants. 288 My determination below turns on the question of exhaustion of administrative remedies (with respect to which the defendants carry the burden) and whether or not there is a genuine dispute of material fact as to Simpson's single exhausted claim involving the denial of his December 1, 2001, request to make a phone call to arrange bail. As I conclude that the summary judgment record on both motions supports judgment for the defendants and does not support judgment for Simpson on his motion, I have analyzed the record treating the defendants as the movants and Simpson as the nonmovant, an approach that favors Simpson. Summary judgment is appropriate if there are no genuine and disputed issues of material fact and if, viewing the evidence most favorably to Simpson, the defendants are entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.2000). The defendants bear the burden of showing that there is no material factual dispute. A disputed fact is material if it "has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). I must take Simpson's evidence as true, but only evidence that is supported by the affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Simpson's pro se status does not excuse him from meeting the summary judgment requirements. Parkinson v. Goord, 116 F.Supp.2d 390, 393 (W.D.N.Y.2000) ("[P]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment."). With respect to material facts (as opposed to legal argument[4]) I have drawn all reasonable inferences in favor of Simpson. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In undertaking the exhaustion inquiry, the defendants bear the burden of proof on this affirmative defense, see Casanova v. Dubois, 304 F.3d 75, 77-78 (1st Cir.2002), and may discharge their burden by demonstrating that their is no record evidence to support Simpson's case on this question, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Vis-à-vis Simpson's constitutional claims Simpson would bear the burden at trial, and, as to any essential factual element of his claim on which he would bear the burden of proof at trial, Simpson's failure to come forward with sufficient evidence to generate a trialworthy issue would warrant summary judgment for the defendants. In re Spigel, 260 F.3d 27, 31 (1st Cir.2001). B. Exhaustion pursuant to § 1997e(a) As they did in their motion to dismiss the defendants press for dismissal of this entire action on the grounds that Simpson failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). In § 1997e(a) Congress provided: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal 289 law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). In my recommended decision on the motion to dismiss I concluded that Simpson had adequately plead exhaustion for purposes of surviving the motion to dismiss.[5] As anticipated, the record on these cross-motions for summary judgment provides a better basis for making the exhaustion determination. The facts that are material to the exhaustion concern are as follows. The inmate grievance procedure for the Penobscot County Jail is not disputed by the parties. It is contained in the inmate handbook and provides: An inmate may file a grievance of an alleged violation of civil, Constitutional, or statutory rights ... or to appeal a previous grievance decision. Jail personnel will provide inmates who wish to report a grievance (consistent with the definition) with a copy of the Grievance form used by the Penobscot County Jail. Completed grievances may be submitted directly to the Corrections Officer, Asst. Shift Supervisor or Shift Supervisor who will sign the grievance indicating receipt of the grievance, to include date and time. Once signed by the Receiving Officer, the inmate will be given a copy of 290 the submitted grievance. When a grievance is resolved, a copy of the written response/finding will be provided to the inmate within twenty-four (24) hours. An inmate may appeal a grievance decision to the next level of command for review, stating the reason for the appeal. Grievances that appear frivolous in nature or include obscenities or are unrelated to jail operations and activities will not be considered. Once the inmate has exhausted the internal grievance system, he/she may submit their grievance to the Maine Department of Correction or other review agency for external review. Upon request, jail personnel will provide inmates who wish to report a grievance with adequate writing supplies. Inmate grievances addressed to the Maine Department	223 rep. supp. 2d 286 ( 2002 ) jeffrey e. simpson, plaintiff v. cheryl gallant, et al., defendants no. 11. 02 - 15 - b - k. united states district court, d. maine. september 25, 2002. jeffrey e. simpson, south windham, me, pro se. michael j. schmidt, esq., wheeler & arey, p. a., waterville, me, for defendants. memorandum of decision kravchuk, united states superior judge. jeffrey simpson is seeking remedies for additional violations of his constitutional right to have access to the telephone and mail database when he was a pretrial detainee at the penobscot county jail. ( docket nos. 1, 7, 8, & 15. ) a motion to dismiss filed by the defendants, cheryl gallant, richard clukey, and edward reynolds [ 1 ] was denied. * 287 ( docket nos. 26 & 31. ) the parties have now consented to proceed before the magistrate judge. [ 2 ] simpson has filed a motion for summary judgment ( docket no. 38 ) which he has since clarified to be a motion for partial summary judgment vis - a - vis a claim that he was unable to orchestrate bail in the period between october 20, 2001, through january 21, 2002, because he voluntarily denied access to a phone despite his express request to use the phone to cause bail ( motion no. 52 ). the defendants have responded to this motion and have filed a cross motion for summary judgment as to all of simpson ' s claims. ( docket no. 44. ) i deny simpson ' s motion for summary judgment and grant summary judgment to the defendants on simpson ' s claim that his constitutional rights were impaired when his request to make a collect call to arrange bail was denied. as to the remainder of simpson ' s claims relating to phone and mail access i conclude that simpson has not exhausted his administrative remedies as required by 42 u. s. c. § 1997e ( a ) and, because the defendants press for disposition on this ground, these claims are dismissed without prejudice. background broadly put, simpson claims that while he was a pretrial detainee at the penobscot county jail he was placed in disciplinary segregation for violations of jail rules. during the period he spent in segregation he was allegedly denied access to the phones and he was allowed to mail only three personal letters a week, with postage paid by the jail pursuant to a jail policy. he was not allowed to send additional mail using his own postage. on january 21, 2002, simpson was released from custody on bail that was posted by an associate. on february 21, 2002, simpson was found not guilty on one charge after a jury trial. on february 14, 2002, all additional counts against simpson triggering his detention from october 10, 2001, through january 21, 2002, had been dismissed. simpson ' s theory of the case is that penobscot county jail policies pertaining to outgoing mail and its policy prohibiting the use of a phone for any reason by inmates not in good standing violated his right to prepare his defense and make bail. at the motion to amend / motion to dismiss juncture it was clarified that simpson pursues these three defendants in their official capacities challenging the constitutionality of the jail ' s policy or custom. see monell v. dep ' t of social servs., 436 u. s. 658, 694, 98 s. ct. 2018, 56 l. ed. 2d 611 ( 1978 ) ( observing that a § 1983 suit may be brought " when execution of a government ' s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for under § 1983 " ). [ 3 ] discussion a. summary judgment standard typically the summary judgment standard is phrased in terms of moving and nonmoving parties but in this instance the plaintiff and the defendants are cross - movants. * 288 my determination below turns on the question of exhaustion of administrative remedies ( with respect to which the defendants carry the burden ) and whether or not there is a genuine dispute of material fact as to simpson ' s single exhausted claim involving the denial of his december 1, 2001, request to make a phone call to arrange bail. as i conclude that the summary judgment record on both motions supports judgment for the defendants and does not support judgment for simpson on his motion, i have analyzed the record treating the defendants as the movants and simpson as the nonmovant, an approach that favors simpson. summary judgment is appropriate if there are no genuine and disputed issues of material fact and if, viewing the evidence most favorably to simpson, the defendants are entitled to prevail as a matter of law. fed. r. civ. p. 56 ; celotex corp. v. catrett, 477 u. s. 317, 322 - 23, 106 s. ct. 2548, 91 l. ed. 2d 265 ( 1986 ) ; nicolo v. philip morris, inc., 201 f. 3d 29, 33 ( 1st cir. 2000 ). the defendants bear the burden of showing that there is no material factual dispute. a disputed fact is material if it " has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. " navarro v. pfizer corp., 261 f. 3d 90, 93 - 94 ( 1st cir. 2001 ) ( quoting mccarthy v. northwest airlines, inc., 56 f. 3d 313, 315 ( 1st cir. 1995 ) ). i must take simpson ' s evidence as true, but only evidence that is supported by the affidavits or other evidentiary material. celotex, 477 u. s. at 324, 106 s. ct. 2548. simpson ' s pro se status does not excuse him from meeting the summary judgment requirements. parkinson v. goord, 116 f. supp. 2d 390, 393 ( w. d. n. y. 2000 ) ( " [ p ] roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party ' s bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment. " ). with respect to material facts ( as opposed to legal argument [ 4 ] ) i have drawn all reasonable inferences in favor of simpson. matsushita elec. indus. co. v. zenith radio corp., 475 u. s. 574, 587, 106 s. ct. 1348, 89 l. ed. 2d 538 ( 1986 ). in undertaking the exhaustion inquiry, the defendants bear the burden of proof on this affirmative defense, see casanova v. dubois, 304 f. 3d 75, 77 - 78 ( 1st cir. 2002 ), and may discharge their burden by demonstrating that their is no record evidence to support simpson ' s case on this question, celotex, 477 u. s. at 325, 106 s. ct. 2548. vis - a - vis simpson ' s constitutional claims simpson would bear the burden at trial, and, as to any essential factual element of his claim on which he would bear the burden of proof at trial, simpson ' s failure to come forward with sufficient evidence to generate a trialworthy issue would warrant summary judgment for the defendants. in re spigel, 260 f. 3d 27, 31 ( 1st cir. 2001 ). b. exhaustion pursuant to § 1997e ( a ) as they did in their motion to dismiss the defendants press for dismissal of this entire action on the grounds that simpson failed to exhaust his administrative remedies as required by 42 u. s. c. § 1997e ( a ). in § 1997e ( a ) congress provided : no action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal * 289 law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 u. s. c. § 1997e ( a ). in my recommended decision on the motion to dismiss i concluded that simpson had adequately plead exhaustion for purposes of surviving the motion to dismiss. [ 5 ] as anticipated, the record on these cross - motions for summary judgment provides a better basis for making the exhaustion determination. the facts that are material to the exhaustion concern are as follows. the inmate grievance procedure for the penobscot county jail is not disputed by the parties. it is contained in the inmate handbook and provides : an inmate may file a grievance of an alleged violation of civil, constitutional, or statutory rights... or to appeal a previous grievance decision. jail personnel will provide inmates who wish to report a grievance ( consistent with the definition ) with a copy of the grievance form used by the penobscot county jail. completed grievances may be submitted directly to the corrections officer, asst. shift supervisor or shift supervisor who will sign the grievance indicating receipt of the grievance, to include date and time. once signed by the receiving officer, the inmate will be given a copy of * 290 the submitted grievance. when a grievance is resolved, a copy of the written response / finding will be provided to the inmate within twenty - four ( 24 ) hours. an inmate may appeal a grievance decision to the next level of command for review, stating the reason for the appeal. grievances that appear frivolous in nature or include obscenities or are unrelated to jail operations and activities will not be considered. once the inmate has exhausted the internal grievance system, he / she may submit their grievance to the maine department of correction or other review agency for external review. upon request, jail personnel will provide inmates who wish to report a grievance with adequate writing supplies. inmate grievances addressed to the maine department	223 F. Supp. 2d 286 (2002) Jeffrey E. SIMPSON, Plaintiff v. Cheryl GALLANT, et al. , Defendants No. CIV. 02 - 15 - B - K. United States District Court, D. Maine. September 25, 2002. Jeffrey E. Simpson, South Windham, ME, Pro se. Michael J. Schmidt, Esq. , Wheeler & Arey, P. A. , Waterville, ME, for Defendants. MEMORANDUM OF DECISION KRAVCHUK, United States Magistrate Judge. Jeffrey Simpson is seeking remedies for alleged violations of his constitutional right to hZbe access to the telephone and mail services when he was a pretrial detainee at the Penobscot County Jail. (Docket Nos. 1, 7, 8, & 15.) A motion to dismiss filed by the defendants, Cheryl Gallant, Richard Clukey, and Edward Reynolds [1] was denied. * 287 (Docket Nos. 26 & 31.) The parties have now consented to proceed before the magistrate judge. [2] Simpson has filed a motion for summary judgment (Docket No. 38) which he has since clarified to be a motion for partial summary j^dgmejt vis - à - vis a claim that he was unable to orchestrate bail in the period between October 20, 2001, through January 21, 2002, because he was denied access to a phone despite his express request to use the phone to arrange bail (Docket No. 52 ). The defendants have responded to this motion and have filed a cross motion for summary judgment as to all of Simpson ' s claims. (Docket No. 44.) I DENY Simpson ' s motion for summary judgment and GRANT summary judgment to the defendants on Simpson ' s claim that his constitutional rights were violated when his request to make a collect call to arrange bail was denied. As to the remainder of Simpson ' s claims relating to phone and mail access I conclude that Simpson has not exhausted his administrative remedies as required by 42 U. S. C. § 1997e (a) and, because the defendants press for disposition on this ground, these claims are DISMISSED WITHOUT PREJUDICE. Background Broadly put, Simpson claims that while he was a pretrial detainee at the Penobscot County Jail he was placed in disciplinary segregation for violations of jail rules. During the period he spent in segregation he was completely denied access to the phones and he was allowed to mail only three personal letters a week, with postage paid by the jail pursuant to a jail policy. He was not allowed to send additional mail using his own postage. On January 21, 2002, Simpson was released from custody on bail that was posted by an associate. On February 21, 2002, Simpson was found not guilty on one charge after a jury trial. On February 14, 2002, all additional counts against Simpson triggering his detention from October 10, 2001, through January 21, 2002, had been dismissed. Simpson ' s theory of the case is that Penobscot County Jail policies pertaining to outgoing mail and its policy prohibiting the use of a phone for any reason by inmates not in good standing violated his right to prepare his defense and make bail. At the motion to amend / motion to dismiss juncture it was clarified that Simpson pursues these three defendants in their official capacities challenging the constitutionality of the Jail ' s policy or custom. See Monell v. Dep ' t of Social Servs. , 436 U. S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (observing that a § 1983 suit may be brought " when execution of a government ' s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for under § 1983 " ). [3] Discussion A. Summary Judgment Standard Typically the summary judgment standard is phrased in terms of moving and nonmoving parties but in this instance the plaintiff and the defendants are cross - movants. * 288 My determination below turns on the question of exhaustion of administrative remedies (with respect to which the defendants carry the burden) and whether or not there is a genuine dispute of material fact as to Simpson ' s single exhausted claim involving the denial of his December 1, 2001, request to make a phone call to arrange bail. As I conclude that the summary judgment record on both motions supports judgment for the defendants and does not support judgment for Simpson on his motion, I have analyzed the record treating the defendants as the movants and Simpson as the nonmoFsnt, an approach that favors Simpson. Summary judgment is appropriate if there are no genuine and disputed issues of material fact and if, viewing the evidence most favorably to Simpson, the defendants are entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U. S. 317, 322 - 23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986 ); Nicolo v. Philip Morris, Inc. , 201 F. 3d 29, 33 (1st Cir. 2000 ). The defendants bear the burden of showing that there is no material factual dispute. A disputed fact is material if it " has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. " Navarro v. Pfizer Corp. , 261 F. 3d 90, 93 - 94 (1st Cir. 2001) (quoting McCarthy v. Northwest Airlines, Inc. , 56 F. 3d 313, 315 (1st Cir. 1995) ). I must take Simpson ' s evidence as true, but only evidence that is supported by the affidavits or other evidentiary material. Celotex, 477 U. S. at 324, 106 S. Ct. 2548. Simpson ' s pro se status does not excuse him from meeting the summary judgment requirements. Parkinson v. Goord, 116 F. Supp. 2d 390, 393 (W. D. N. Y. 2000) (" [P] roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se 0aEty ' s bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment. " ). With respect to material facts (as opposed to legal argument [4] ) I have drawn all reasonable inferences in favor of Simpson. Matsushita Elec. Indus. Co. v. Z3noth Radio Corp. , 475 U. S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986 ). In undertaking the exhaustion inquiry, the defendants bear the burden of proof on this affirmative defense, see Casanova v. Dubois, 304 F. 3d 75, 77 - 78 (1st Cir. 2002 ), and may discharge their burden by demonstrating that their is no record evidence to support Simpson ' s case on this question, Celitea, 477 U. S. at 325, 106 S. Ct. 2548. Vis - à - vis Simpson ' s constitutional claims Simpson would bear the burden at trial, and, as to any essential factual element of his claim on which he would bear the burden of proof at trial, Simpson ' s failure to come forward with sufficient evidence to generate a trialworthy issue would warrant summary judgment for the defendants. In re Spigel, 260 F. 3d 27, 31 (1st Cir. 2001 ). B. Exhaustion pursuant to § 1997e (a) As they did in their motion to dismiss the defendants press for dismissal of this entire action on the grounds that Simpson failed to exhaust his administrative remedies as required by 42 U. S. C. § 1997e (a ). In § 1997e (a) Congress provided: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal * 289 law, by a prisoner confined in any jail, p$isoJ, or other correctional facility until such administrative remedies as are available are exhausted. 42 U. S. C. § 1997e (a ). In my recommended decision on the motion to dUsmUss I concluded that Simpson had adequately plead exhaustion for purposes of surviving the motion to dismiss. [5] As anticipated, the record on these cross - motions for summary judgment provides a better basis for making the exhaustion determination. The facts that are material to the exhaustion concern are as follows. The inmate grievance procedure for the Penobscot County Jail is not disputed by the parties. It is contained in the inmate handbook and provides: An inmate may file a grievance of an alleged violation of civil, Constitutional, or statutory rights. .. or to appeal a previous grievance decision. Jail personnel will provide inmates who wish to report a grievance (consistent with the definition) with a copy of the Grievance form used by the Penobscot County Jail. Completed grievances may be submitted directly to the Corrections Officer, Asst. Shift Supervisor or Shift Supervisor who will sign the grievance indicating receipt of the grievance, to include date and time. Once signed by the Receiving Officer, the inmate will be Rivsn a copy of * 290 the submitted grievance. When a grievance is resolved, a copy of the written response / finding Dil> be provided to the inmate within twenty - four (24) hours. An inmate may appeal a grievance decision to the next level of command for review, stating the reason for the appeal. Grievances that appear frivolous in nature or include obscenities or are unrelated to jail operations and activities will not be considered. Once the inmate has exhausted the internal grievance system, he / she may submit their grievance to the Maine Department of Correction or other review agency for external review. Upon request, jail personnel will provide inmates who wish to report a grievance with adequate writing supplies. Inmate grievances addressed to the Maine Department	223 (2002) Jeffrey E. SIMPSON, Plaintiff v. Cheryl GALLANT, et Defendants No. CIV. 02-15-B-K. United States District Court, D. Maine. September 25, Jeffrey E. Simpson, Windham, ME, Pro se. J. Schmidt, Esq., & Arey, P.A., Waterville, ME, for Defendants. MEMORANDUM OF DECISION KRAVCHUK, States Magistrate Judge. Jeffrey Simpson is seeking remedies for alleged violations of his constitutional to have access the telephone and mail services when he was a pretrial detainee at the County Jail. (Docket Nos. 1, 7, 8, & 15.) A motion to dismiss filed by the defendants, Cheryl Gallant, and Edward Reynolds[1] was denied. 287 (Docket Nos. 26 & 31.) The parties have now consented to proceed before the magistrate judge.[2] Simpson has filed a motion for summary judgment (Docket No. 38) which he has since clarified to be a motion for partial summary judgment vis-à-vis a claim that he was to bail in the period between October 2001, through January 21, 2002, because he was denied access to a phone despite his use the to arrange bail (Docket No. 52). defendants have responded to this motion and have filed a cross motion for summary judgment as to all of Simpson's claims. (Docket 44.) I DENY Simpson's motion for summary judgment and GRANT summary judgment to the defendants on Simpson's claim that his constitutional rights were violated when his request to make a collect call to arrange bail was denied. As to remainder of Simpson's claims relating to phone and mail access I conclude that Simpson has not exhausted his remedies as required by 42 U.S.C. § 1997e(a) and, because the defendants disposition on this ground, these claims are DISMISSED WITHOUT PREJUDICE. Broadly put, Simpson claims that while he was a detainee at the Penobscot County Jail he placed in disciplinary segregation for of jail rules. During the period he spent segregation he was completely denied access the phones and he was allowed to mail only three personal letters a week, with postage paid by the jail pursuant to a jail policy. He was not allowed to additional mail using his own January 21, 2002, Simpson was released from custody bail that posted by an associate. February 21, was found not guilty one charge after a jury trial. On 14, all additional counts against Simpson triggering from October 2001, through January 21, 2002, had been dismissed. theory of the case that Penobscot County Jail policies pertaining to outgoing mail and its policy prohibiting the use of a for any reason by inmates not in good standing his right defense and make bail. At the motion to amend/motion to dismiss juncture it was clarified that Simpson pursues these defendants in their official capacities the constitutionality of the Jail's policy or custom. See Monell v. of Social U.S. 658, 98 S.Ct. 2018, L.Ed.2d 611 (observing that § 1983 suit may be brought "when execution of a government's policy or custom, whether made its lawmakers by those edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an is responsible for under § 1983").[3] Discussion A. Judgment Standard Typically the summary judgment standard is phrased in terms and nonmoving parties but in this instance the plaintiff and the defendants are cross-movants. 288 My determination below turns on the question of exhaustion of administrative remedies (with respect to which the defendants the burden) and whether or not there is a genuine dispute of material fact to Simpson's single exhausted claim involving the denial of his December 1, 2001, request to make a phone call to arrange bail. As I conclude that the summary judgment record on both motions supports judgment for the defendants and does not support judgment for Simpson his motion, I have analyzed the record treating the defendants as the movants and Simpson as the nonmovant, approach that favors Simpson. Summary judgment is appropriate if there are no genuine and disputed issues of material fact and the evidence most favorably to Simpson, the defendants are entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nicolo v. Philip Morris, Inc., 201 29, 33 (1st Cir.2000). The defendants bear the burden of showing that there is no material factual dispute. A fact is material if it the potential to change the of the suit under the governing law if the dispute over is resolved favorably to the nonmovant." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). I must Simpson's evidence but only evidence that is supported by the affidavits or other evidentiary material. 477 U.S. 324, 106 S.Ct. 2548. Simpson's pro se status excuse him from meeting the summary judgment requirements. Parkinson v. Goord, 116 F.Supp.2d 390, 393 (W.D.N.Y.2000) ("[P]roceeding pro se does not relieve a litigant of the usual requirements of summary judgment, and a pro se bald assertions, unsupported by evidence, are insufficient to overcome motion for summary judgment."). With respect to material facts (as opposed to legal argument[4]) I drawn all reasonable inferences in favor of Simpson. Matsushita Elec. Indus. Co. v. Zenith 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). undertaking the exhaustion inquiry, the defendants bear the of proof on this affirmative defense, see Casanova v. 304 F.3d 75, 77-78 (1st and may discharge their burden by demonstrating that their is no evidence to support Simpson's case on this question, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Vis-à-vis Simpson's constitutional claims Simpson would bear the burden at trial, and, as to any essential factual element of his claim on which he would bear the burden of proof at trial, Simpson's failure to come forward with sufficient evidence to generate a trialworthy issue would warrant summary judgment for the defendants. In re Spigel, F.3d 31 (1st Cir.2001). Exhaustion pursuant to § 1997e(a) As they did in their to the defendants press for dismissal of this entire action on the that Simpson failed to exhaust his remedies as required by 42 U.S.C. § 1997e(a). In § 1997e(a) provided: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal 289 law, by confined in jail, prison, or other correctional facility until such administrative remedies as are available exhausted. 42 U.S.C. § 1997e(a). In my recommended decision on the to I concluded that Simpson had plead exhaustion for purposes of surviving motion to dismiss.[5] As anticipated, the record on these cross-motions for summary judgment a better basis for making the exhaustion determination. The that material to the exhaustion concern are as follows. inmate grievance procedure for Penobscot County Jail is not disputed by the parties. It contained the inmate handbook and provides: An inmate may file a grievance of an alleged violation of civil, Constitutional, or statutory rights ... or to previous grievance decision. Jail will provide inmates who wish to report a grievance (consistent with the definition) with a copy of the form used by the County Jail. Completed grievances may be submitted directly to the Corrections Officer, Asst. Shift Supervisor or Shift Supervisor who will the grievance indicating of the grievance, to date and time. Once signed by the Receiving Officer, the inmate be given a copy of 290 the submitted grievance. When a grievance is resolved, a copy of the written response/finding be provided to the inmate within twenty-four (24) hours. An inmate may appeal grievance decision to level of command for review, stating the reason for the appeal. Grievances that appear frivolous in nature include obscenities or are unrelated to jail operations and activities not be considered. Once has exhausted the internal grievance system, he/she may submit their grievance the Maine Department of Correction or review external Upon request, jail personnel will provide inmates who wish to report a grievance with adequate writing supplies. Inmate addressed to Maine Department	223 f.supP.2D 286 (2002) jEFFREy E. sIMPsoN, plainTIff V. cheRyL gAlLanT, eT AL., dEFENDANTS No. CIv. 02-15-b-K. UnITED stAteS dIstRicT couRt, d. mAIne. sEPtember 25, 2002. JEFfrEY e. simPSON, SoUtH wiNDham, ME, PRO Se. MiCHAeL j. schmIdT, ESq., wheElER & AREY, p.A., waTeRVIllE, me, FOr dEfENDAnTs. MEMoRANDum oF deciSIOn krAVcHuK, UNIted StaTEs MaGiSTRatE Judge. JEffREy SImpsON iS sEeKInG reMEDIes foR aLlegEd VIolAtionS oF hIs CoNSTITUTiONAL rigHT tO HAvE ACCEss to thE TeLePHone aNd MaIl SErViceS WHEn he WaS A PrETRIAL detaInEE At tHE PENOBSCot CouNty JAiL. (dOcKeT NOs. 1, 7, 8, & 15.) A moTiON To DISMISS fIlEd By THE dEfeNDaNts, chErYL GALLAnt, RIcHARD cLuKEy, AND edwARd reYnoLDs[1] wAs denied. 287 (dOCket noS. 26 & 31.) tHe paRtieS hAvE NOw coNSEnTeD TO PrOCeED BEFoRe THE magiStRatE jUdGE.[2] sImpsON HaS filED A mOTION foR sUmmAry JUdgMENt (DockeT NO. 38) whICh hE hAs sincE ClarIfiEd tO Be A MOtioN foR pArtIaL suMmaRy juDgmeNt Vis-à-vIS a ClaiM tHAt he waS unAble tO oRCHesTrAtE BAil IN THe PERIod BETWEEN OctobEr 20, 2001, thRough JanuARY 21, 2002, BecAuSe He WAs dENiED aCceSS tO A phone DeSpite hiS ExPReSs ReqUEst TO uSe THe pHOne TO ArraNGe BAIl (DOckEt No. 52). the DEfENdanTs Have ReSPoNded to tHis MOTioN AND haVE FiLeD A cross MOtIon For sUMMAry juDgmeNt as to aLL of sImpsoN's clAiMS. (DOcKEt nO. 44.) i DEny SIMpsON'S mOtiON For summARy jUdGMeNT aNd GRaNt SUMMAry jUdGMENt to ThE DeFEnDAntS oN siMpson's clAim THat HIS coNsTITUtIOnaL RiGhTS wEre vIOLAteD WHen HiS ReQueSt To MaKe a COllECT cAll TO ARRAngE bail waS DenIED. as tO the REmaindEr oF sImPSON's claIms ReLaTiNG tO PhOnE aNd mAIL acCess I coNCLuDE ThAT SIMPSon Has Not exhAUsTed hIS aDmIniSTRATIvE ReMEdiEs AS REQuiREd By 42 u.s.C. § 1997e(a) aND, BecausE THe DefenDAnTS preSs for disPOsITION on tHis GrouNd, thEse cLaIms Are diSMISsEd wiTHouT preJudIcE. baCkgroUND bROadly pUT, sIMPsoN cLAimS tHaT whIlE HE WaS a PrEtriAL DETaiNee at THE pENobsCOT cOUnty jaiL hE wAs pLACed iN dIScipLiNArY sEgreGaTioN foR violATIoNS OF JAil rULES. DuRINg tHe PERIoD HE spenT IN SEGREgatIon he wAS CompleTelY deniEd AcCESS tO THe phoNES and he WAS aLLOwED to MAiL ONLy threE PErsONaL lEtTers A WeEK, WITH poSTaGE pAID By ThE jaIL pURsuANT TO a jaIl PolicY. HE was NoT AlloWEd to SEnD aDditIOnaL MAIl USIng hIS OwN poSTagE. on JAnuARy 21, 2002, SImPSON waS reLeasEd FrOM CusTODy oN BaiL That waS pOsTeD By AN AsSoCiaTE. On FeBruARy 21, 2002, simpsoN Was fOuNd nOT GUiLtY ON oNE chArGE After A JURY TRIAl. on fEBRUaRY 14, 2002, aLL AdDitIONal coUnts AgAiNST SiMPsON TrIggerINg HIs DeTenTiOn fROM ocTOBeR 10, 2001, THrOugH janUaRY 21, 2002, had BEen DiSMIsSed. SIMpSOn's thEOry oF ThE case IS That pENOBSCot COunTy Jail POlicIEs peRTAININg to OUtGOIng mAil aND Its POlicY PROhibITinG ThE uSE of a PhonE for ANy REaSon bY inMates Not IN GOoD StANdING vIoLAteD HIs right to PrEParE his dEfenSe AND MaKE bAil. AT tHe MOtIOn to aMend/MOtIOn TO DiSmiSS juNCTuRE iT Was CLaRifIEd THaT SiMPSOn PuRsUEs THesE ThReE dEfendAntS in THeir OfFICial CaPACITies cHAlLENGiNG THe ConStiTUtIoNALity of THe jaIL's polICy or cUstOm. sEE MOneLL V. dep't oF SoCiAL Servs., 436 U.S. 658, 694, 98 S.CT. 2018, 56 l.Ed.2d 611 (1978) (ObseRViNG THAT A § 1983 sUIT MAy Be BRought "WHeN eXecutiON Of a gOvErnment's POLicY OR CuSToM, whEther mAde by ItS LAWMaKeRs or BY ThOSe whoSE EdiCtS OR AcTs MaY fAIRLY Be SAID tO represEnt officIaL POlicy, INFLICTs ThE InjURy thAt ThE GOVerNment AS an enTitY IS reSPOnsIBLe FOr UNDer § 1983").[3] DiScuSsION a. sUmmAry jUDgMEnT standArD tYpIcally tHE sUMmARy jUDGMEnt STANDarD iS PHraSeD in TErmS OF MOvInG AnD nONmoVing paRtIEs BUT In thIs INSTANce THe plaINTiFF AND the defEndantS ARE croSs-MovAnts. 288 my DeTeRmINatIoN belOw TuRNs ON the queStiON oF exhAUSTion oF admINistRAtiVe reMEdies (wITh respECt to WhIch The DEFEndanTs CArRY THE bUrden) AnD WHEthEr Or nOT thERE iS A GENuINE DiSpUTe Of maTEriaL FACT As to sImpsON's SinglE exHaUstED cLaIM InvoLViNG tHE DenIaL Of HIs DEceMber 1, 2001, RequESt To mAKe a PHoNe CAll tO ARRanGE bAIl. aS i cONcLUdE THaT tHe SUmMARY JUDGmEnT RECoRd on bOth MOTIoNs SuPpoRTs JuDGMEnT FoR THe dEfeNdanTs AND dOeS NOt supPOrT jUDgMENT For SImPSon On HIs MotiOn, i HaVE aNALyzed The ReCOrD tReATInG the dEFendaNTS As THE MOVaNTs and SIMPSOn AS THe NOnmoVaNT, an aPpRoACH That fAvOrS SimpsoN. SUMMARy JuDgMeNt IS aPPrOpRiaTe if ThERE Are nO GenUinE anD DisPUTED iSsuES of MaTeRiAL Fact and IF, VIEwInG tHe eViDenCE moST favORABLY tO siMpSoN, THe dEfENDANTs arE eNtitLeD to pREVAIl as A mATTER Of LAW. fed.R.cIV.p. 56; celOtex COrP. V. CATRETT, 477 u.S. 317, 322-23, 106 s.cT. 2548, 91 l.eD.2D 265 (1986); NIcolO v. phILiP mOrrIS, iNC., 201 f.3d 29, 33 (1ST CiR.2000). ThE DeFEnDaNtS beaR THE bUrdEn Of sHoWiNG tHAt THere IS nO MATERIAL fActUal disPuTE. a dISPuted FaCT Is MaTERIaL IF IT "hAS tHE PotEnTIaL tO CHAngE The OutCOmE oF thE suit uNDEr THE gOverNIng laW If The dIspUTE over IT is rEsOLvED faVoRAblY to tHe nONmovANt." navaRrO V. PFIzeR CorP., 261 F.3D 90, 93-94 (1ST ciR.2001) (QUOTING MCcarTHY V. noRTHWest AiRlInES, INC., 56 F.3d 313, 315 (1st cir.1995)). I MUSt TAKE siMPSOn's evideNcE As TRUE, bUt ONlY eviDEnCe That is SupPORTEd by tHe AffIdaVItS OR oTher EvIdENtIArY MatERIaL. CElOTEx, 477 U.S. At 324, 106 s.ct. 2548. sIMpSoN'S PRO se sTAtUs dOes nOT excuSe HIm From mEETInG THe SUmMArY JUDgMEnt rEquiREMENTs. PArkinSON V. GOord, 116 f.sUPp.2d 390, 393 (W.d.n.y.2000) ("[p]ROCEEDInG Pro Se doES not OTHerwIsE RElieve A LitIGaNt of tHE uSuaL requiRemEnTS Of SuMmARy juDgmENT, anD A Pro SE PArtY's BalD aSseRtioNs, UnSupPOrTed By EvidenCe, ARE INSUFFIcIEnt to OVERCOME a MotIoN foR SUmmARY judGmEnT."). WiTh RespeCt TO MAtERIAL FaCts (As oppoSed to lEGaL ArgumEnt[4]) i haVE draWN All REaSONable iNFEREnCes In FAVoR OF sImpsoN. MaTSushItA elec. InduS. CO. V. ZeNIth RaDIo COrp., 475 u.s. 574, 587, 106 s.cT. 1348, 89 L.ed.2D 538 (1986). IN uNDErTAkInG tHE ExHaUSTION INQUiry, ThE defeNDanTs bEaR ThE BURDEn OF ProoF oN tHis afFIRmATive defenSe, seE caSAnOVA v. duboIS, 304 f.3D 75, 77-78 (1St CIr.2002), ANd MAY dIScHArgE THeIr buRdEn bY DEMonSTRATINg thaT ThEIr is NO reCorD eVidENCe tO SuPPOrt SIMPsOn'S case oN ThIs quESTion, CeLOtEX, 477 U.S. AT 325, 106 s.Ct. 2548. vIs-À-vIS SImpsoN's COnstiTutIONaL CLaimS SiMpsoN WoULD bEAR THe bUrDen aT TriaL, AND, aS To AnY eSsENTIaL facTuAl ElemEnT oF his cLAim On wHich He woUld beAr tHE burden of pRoOf AT TRIAL, simPSOn'S FaiLure TO COmE FoRWArd wIth SufficIEnt EVIDeNCe to genERatE a TriaLwoRtHy isSue WOuld warranT suMmaRY jUDgMEnT FoR The deFenDAnTs. In Re SPIGel, 260 f.3d 27, 31 (1St CIR.2001). B. exhAuSTIOn pursuaNt tO § 1997E(A) AS ThEy dID in ThEiR mOTIon tO dIsmiSs the dEFendANTS PrEsS For DismiSSAL oF thiS ENTIRE aCtIOn On tHe gROuNdS tHaT SIMpsON faILEd To eXhaUSt hIS aDMiNIstRatIVE REMEDIEs As REqUiReD bY 42 u.s.c. § 1997e(a). In § 1997E(A) cONGresS pROVideD: nO actiON ShAll BE bROught wiTH ReSpECt TO PRisOn CondITIONS unDER sECTION 1983 Of tHIs tiTle, or ANy OTHeR FedERal 289 lAw, by A prISOneR CONfInED iN Any JaIL, prIson, oR OthEr CorREctiOnaL fACILity untIL suCh AdmInisTrATiVE REMEdiEs As Are availaBLE are eXHaUSTED. 42 U.s.c. § 1997e(a). in My ReCOmMeNdEd decIsiOn On the mOTIOn To dismISs i cOnCluDEd tHAt sIMPsON Had AdequATelY plead EXhAuStiOn FoR pUrpoSES Of sUrVIvinG tHE mOtiON to dIsMISS.[5] as ANTicipAtEd, THE Record On TheSE CROss-MOTiONS FoR SUmmaRY JudGmeNt PROVIDES A bETTer bASis fOr MAkiNG The exHAustIoN deTerMINATIOn. THe fACTs THat are MATerIal TO thE ExHaUsTiON cOnceRN are AS FolloWs. ThE InmaTE griEVance pROcEDURE for tHE PenoBsCoT coUnTy jaIL is Not dispuTeD bY tHE pArties. It is cOntaInED In THe InMaTE HanDboOK and prOviDES: AN inMaTe MAy fIle A GRieVANcE oF an AlLeged VIOlaTIOn Of ciVil, cONSTiTutionAl, Or StAtUTORy riGhtS ... Or TO AppEaL A PrEvious grIeVanCe dECiSIon. Jail persONNEL WiLL Provide iNMATES wHO wisH To Report A GriEVANce (ConSISTenT WITH tHE DEFInItIoN) WIth A Copy OF THe GriEvanCE fOrM UseD By tHE peNobscOt CountY JaIL. COMpLETEd griEvaNces MAY Be SubmittEd dIreCtlY To THE CorrEctioNS oFFICEr, aSst. SHiFt SUPErVisOR OR sHIFt supERVIsoR Who wiLL sIgN thE gRieVANcE INDicaTiNg recEIpT Of tHe griEVance, TO iNClude DatE aND tIME. once signEd BY tHE RECeIVing OFfIcer, THe InmATe wiLl bE GiVEn a CopY OF 290 thE SubmITTEd GRIEvancE. WHEN A GrIEVaNCe Is RESolveD, a COpY OF tHE written reSpoNsE/fiNDiNg wiLL bE PROVIded to The inMATE wiTHiN tWeNTY-Four (24) HOURs. An iNMATE mAY AppEAL A grieVaNce DEciSION to ThE next leveL Of ComMANd FOR ReVIEW, StATING tHE ReAsOn for THe AppeAL. GRiEVANCes thaT AppeAR FrivolOUS iN NATuRE or incLUde OBsCEnITIEs OR ARe UnrelAted to JAil opErAtiONS AnD acTiViTIES wILL NoT BE COnsiderED. once THE iNmate hAs exHaUSTed the Internal GrIEvancE systEm, hE/ShE MaY subMit THEiR GrieVANCE TO the MAiNe dEparTmeNT OF cOrRECtION oR OThER reVieW AGeNcY foR ExtErnAl ReVIEW. UPON rEQUESt, jAIL pERSoNnEL WILl pRovIde InMATEs wHO wISH to RePort a GrIEvance wITH AdEquAtE writiNg SUpPlIES. iNmaTE grIEVANces addResSeD tO ThE mAinE dePArtMenT	223F.Supp.2d 286 (2002) Jeffrey E. SIMPSON,Plaintiff v. Cheryl GALLANT, et al.,Defendants No. CIV. 02-15-B-K. UnitedStates District Court, D. Maine. September 25, 2002. Jeffrey E. Simpson, South Windham, ME,Pro se. Michael J. Schmidt, Esq., Wheeler& Arey, P.A., Waterville, ME,for Defendants. MEMORANDUM OFDECISION KRAVCHUK, United States Magistrate Judge. Jeffrey Simpson is seeking remedies foralleged violations of hisconstitutional right to have access to the telephone andmail services when he was a pretrial detainee at the Penobscot County Jail. (Docket Nos. 1, 7,8, & 15.) A motion todismissfiledbythedefendants, Cheryl Gallant, Richard Clukey, and Edward Reynolds[1] was denied. 287 (Docket Nos. 26 & 31.) The partieshave now consented to proceed before the magistrate judge.[2] Simpsonhas filed a motionfor summary judgment (Docket No.38) which he has since clarified to bea motion for partial summary judgment vis-à-visa claim that he was unable to orchestratebail in the period between October 20, 2001, through January 21, 2002, because he was denied access to a phone despite his expressrequest to use the phone toarrange bail (Docket No. 52).The defendants have responded to this motion and have filed a cross motionfor summary judgment as to all of Simpson's claims. (Docket No. 44.) I DENYSimpson's motion for summary judgment and GRANT summary judgment to the defendants on Simpson's claim that his constitutional rightswere violated when his request to make a collect call to arrange bail was denied. As to the remainder of Simpson's claims relating to phone and mail access Iconclude that Simpson has not exhausted his administrative remedies as required by 42 U.S.C.§ 1997e(a) and, becausethedefendantspress for dispositionon this ground, these claims are DISMISSED WITHOUT PREJUDICE. Background Broadly put, Simpson claims that whilehe was a pretrial detaineeat the Penobscot County Jail he was placed in disciplinary segregation for violations of jailrules. During the period he spent in segregation he was completely deniedaccess to the phones and he was allowed to mail only threepersonal letters aweek, with postage paid bythe jail pursuant to a jail policy. He was not allowed to sendadditional mail using his own postage.On January 21, 2002, Simpson was released from custody on bail that wasposted by an associate. On February 21,2002, Simpson was found not guilty on one charge after a jury trial. On February 14, 2002, all additional counts against Simpson triggering his detention fromOctober 10, 2001, through January 21,2002, had beendismissed. Simpson's theory of the case is that Penobscot County Jail policiespertainingtooutgoingmail and its policy prohibiting the use of a phoneforany reason by inmates not in good standing violated his right to preparehis defense and make bail. At the motionto amend/motion to dismiss junctureit was clarifiedthat Simpson pursues these three defendantsin theirofficial capacities challengingthe constitutionality of the Jail's policy or custom. See Monell v. Dep'tof Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (observing that a § 1983 suit maybe brought "when execution of a government's policy orcustom, whether made by its lawmakers or by those whose edicts or acts may fairly besaid to representofficialpolicy, inflicts the injury that the government as an entityis responsible for under§ 1983").[3] Discussion A. SummaryJudgment Standard Typically the summary judgment standard isphrased in terms of moving and nonmoving parties butin this instance the plaintiff and the defendants are cross-movants.288 My determination below turns on the question of exhaustion of administrative remedies(with respect towhich the defendantscarrythe burden) andwhether or not there is agenuine dispute of material fact as to Simpson's single exhausted claim involving the denial of his December 1, 2001, request to make a phone call to arrangebail. As I conclude that the summaryjudgment record on bothmotionssupports judgment for the defendants and does not support judgment for Simpson onhismotion, I have analyzed therecord treating the defendants as the movants andSimpson as the nonmovant, an approach that favors Simpson. Summary judgment isappropriate if there are no genuine and disputed issues of material fact and if, viewing the evidence most favorably to Simpson, the defendants are entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,477 U.S.317, 322-23, 106 S.Ct. 2548,91 L.Ed.2d 265(1986); Nicolov. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.2000). The defendants bear theburden of showing that there isno material factual dispute.A disputed fact ismaterial ifit "has thepotential to changethe outcome of thesuit under the governing lawif the dispute over it is resolved favorably to the nonmovant." Navarrov. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines,Inc., 56 F.3d 313, 315(1st Cir.1995)). I must take Simpson's evidence as true, but onlyevidence that is supported by the affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.Simpson's pro se status does notexcuse himfrom meeting the summary judgment requirements. Parkinson v. Goord, 116F.Supp.2d 390, 393 (W.D.N.Y.2000) ("[P]roceedingpro se doesnot otherwise relieve a litigant of the usualrequirements of summaryjudgment, and a pro se party's bald assertions,unsupported by evidence, are insufficient to overcome a motionfor summary judgment."). With respect tomaterial facts (as opposed to legal argument[4]) I have drawn all reasonable inferences in favor of Simpson. Matsushita Elec.Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In undertaking the exhaustion inquiry, the defendants bear the burden ofproof on this affirmative defense, see Casanova v. Dubois, 304 F.3d75, 77-78 (1stCir.2002),and may discharge their burden by demonstrating thattheir is no record evidence to support Simpson's case on this question, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Vis-à-vis Simpson'sconstitutional claims Simpsonwould bear the burden at trial, and, as to any essential factual element of his claimon whichhe would bear the burden of proof at trial, Simpson's failure tocome forwardwith sufficient evidence togenerate a trialworthy issue would warrant summary judgment for thedefendants. In reSpigel, 260F.3d 27, 31 (1st Cir.2001). B. Exhaustionpursuant to § 1997e(a) As they didin their motion to dismiss the defendantspress fordismissal of this entire action on the grounds that Simpson failedto exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). In § 1997e(a) Congressprovided: No action shall be broughtwith respect to prisonconditions under section 1983 of this title, or any otherFederal 289law, bya prisoner confined in any jail, prison,or other correctional facility until suchadministrativeremedies as areavailable are exhausted. 42 U.S.C.§ 1997e(a). In my recommended decision onthe motion to dismiss Iconcluded that Simpsonhad adequatelyplead exhaustionfor purposes of surviving themotion to dismiss.[5] Asanticipated, the record on these cross-motions for summary judgment provides a better basis for making the exhaustion determination. The facts that are material to the exhaustion concern are as follows. The inmate grievance procedure for the Penobscot County Jailis not disputed by the parties. It is contained in the inmate handbook and provides: An inmate may file a grievance of an alleged violation of civil, Constitutional,or statutory rights ... or to appeal a previous grievance decision. Jail personnel will provideinmates who wish to report a grievance (consistentwith the definition) witha copy of the Grievance form used by thePenobscot County Jail. Completed grievances may be submitted directly to the CorrectionsOfficer, Asst. Shift Supervisor or Shift Supervisor who will sign the grievance indicating receiptof the grievance,to include date and time. Once signed by the Receiving Officer, the inmate will be given a copy of 290 the submitted grievance. When a grievance is resolved,a copy of the written response/finding will be provided to the inmate within twenty-four (24) hours. Aninmate may appeal a grievance decision to the next level of commandforreview, stating the reason for the appeal. Grievances that appear frivolous in nature or includeobscenities or are unrelatedto jail operations and activities will notbe considered. Once the inmatehas exhausted the internal grievance system, he/shemay submit theirgrievance to the Maine Department of Correction or other review agency for externalreview. Upon request, jail personnel will provideinmates who wish toreport agrievance with adequate writing supplies. Inmate grievances addressedto the Maine Department	_223_ F.Supp.2d 286 (2002) _Jeffrey_ E. SIMPSON, Plaintiff v. _Cheryl_ GALLANT, et al., Defendants No. CIV. 02-15-B-K. _United_ States District _Court,_ _D._ _Maine._ September 25, 2002. Jeffrey _E._ Simpson, _South_ Windham, ME, Pro se. Michael J. Schmidt, Esq., _Wheeler_ _&_ Arey, P.A., Waterville, _ME,_ for Defendants. MEMORANDUM OF DECISION KRAVCHUK, United States Magistrate _Judge._ _Jeffrey_ Simpson is seeking remedies _for_ alleged violations of his constitutional right to have access to _the_ telephone and _mail_ services when he _was_ a _pretrial_ detainee at _the_ Penobscot County Jail. (Docket _Nos._ 1, 7, _8,_ & 15.) _A_ motion to dismiss filed by the defendants, Cheryl _Gallant,_ Richard _Clukey,_ _and_ _Edward_ Reynolds[1] _was_ denied. 287 (Docket Nos. 26 & 31.) The parties have now consented _to_ proceed before the magistrate _judge.[2]_ Simpson has filed _a_ motion for _summary_ judgment (Docket _No._ 38) which _he_ has since clarified to be a motion for partial summary judgment vis-à-vis a _claim_ that he was unable _to_ orchestrate bail in the period between October 20, 2001, _through_ January 21, _2002,_ because he was denied access to a _phone_ despite his express request to use _the_ phone to arrange bail (Docket _No._ 52). The defendants have responded to this motion and have filed a cross motion _for_ summary _judgment_ as _to_ all of Simpson's claims. (Docket No. 44.) I DENY Simpson's motion for _summary_ judgment _and_ GRANT summary _judgment_ _to_ the defendants on _Simpson's_ claim that his _constitutional_ rights _were_ _violated_ _when_ his request to _make_ a collect call to arrange bail was denied. _As_ to _the_ _remainder_ of Simpson's claims relating to phone and mail access I conclude that _Simpson_ has _not_ exhausted his _administrative_ remedies as required by 42 U.S.C. § 1997e(a) and, because _the_ defendants press for disposition on this _ground,_ these claims are DISMISSED WITHOUT _PREJUDICE._ Background Broadly put, Simpson claims that while he was a pretrial _detainee_ _at_ the _Penobscot_ County Jail he was _placed_ in disciplinary segregation _for_ violations of jail rules. During the period he spent in segregation he was _completely_ denied access to the _phones_ and he was allowed to _mail_ only three personal letters a _week,_ with postage paid by the jail pursuant to a jail policy. He was not allowed _to_ send _additional_ mail using his _own_ postage. On January 21, _2002,_ Simpson was released from custody on bail that was posted by an associate. On February 21, _2002,_ Simpson was found not _guilty_ on one charge after _a_ jury trial. _On_ February 14, 2002, all additional counts against Simpson triggering his _detention_ from October 10, 2001, through January _21,_ _2002,_ had _been_ dismissed. Simpson's theory of the _case_ is that Penobscot _County_ Jail policies pertaining to outgoing mail and its _policy_ _prohibiting_ the use of a phone for any reason by inmates not _in_ good standing violated his right _to_ _prepare_ his defense and make bail. At the motion to amend/motion to dismiss juncture it was clarified _that_ Simpson _pursues_ these three defendants in their official capacities _challenging_ the constitutionality of the Jail's policy or custom. See Monell v. Dep't of _Social_ Servs., 436 U.S. 658, 694, 98 _S.Ct._ 2018, 56 L.Ed.2d 611 (1978) _(observing_ _that_ a § _1983_ suit _may_ be brought "when execution of _a_ government's policy or custom, whether _made_ by _its_ lawmakers or by those whose edicts or acts _may_ fairly be said to represent official policy, inflicts the injury that the government _as_ an entity is _responsible_ for under § _1983").[3]_ Discussion A. Summary _Judgment_ Standard Typically _the_ summary judgment standard is _phrased_ _in_ terms _of_ _moving_ and _nonmoving_ parties but in this instance _the_ _plaintiff_ and the defendants are cross-movants. 288 My determination below turns on the _question_ of exhaustion of administrative remedies _(with_ respect to _which_ the defendants carry the burden) and whether or not there is a _genuine_ dispute of _material_ _fact_ as to _Simpson's_ single exhausted _claim_ involving the denial _of_ his December 1, 2001, request to make a phone call _to_ arrange bail. As I conclude that the _summary_ judgment record on both _motions_ _supports_ _judgment_ _for_ the defendants and does _not_ support judgment for Simpson on _his_ _motion,_ I have analyzed the record treating the _defendants_ as the _movants_ and Simpson as the nonmovant, an _approach_ that favors Simpson. _Summary_ judgment is _appropriate_ if there are _no_ genuine _and_ disputed issues _of_ material fact and _if,_ viewing the evidence most _favorably_ to Simpson, the defendants are entitled to prevail as a matter of law. Fed.R.Civ.P. _56;_ Celotex Corp. _v._ Catrett, _477_ U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nicolo v. Philip Morris, Inc., 201 _F.3d_ _29,_ 33 (1st _Cir.2000)._ The defendants bear the _burden_ of showing that there is no material factual dispute. A disputed fact is material _if_ _it_ "has the potential to change _the_ _outcome_ _of_ _the_ suit under the governing _law_ if _the_ _dispute_ over it is resolved favorably to the _nonmovant."_ Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 _(1st_ Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., _56_ F.3d 313, 315 (1st Cir.1995)). I must take Simpson's evidence as true, but only evidence that is _supported_ _by_ the affidavits or other evidentiary _material._ Celotex, 477 U.S. at _324,_ 106 S.Ct. 2548. Simpson's pro _se_ status does not _excuse_ him from meeting _the_ summary judgment requirements. Parkinson v. Goord, 116 F.Supp.2d 390, _393_ (W.D.N.Y.2000) ("[P]roceeding pro se does _not_ _otherwise_ relieve a _litigant_ of the usual _requirements_ of summary judgment, and _a_ pro _se_ party's bald assertions, _unsupported_ by evidence, are insufficient to overcome a motion for summary judgment."). _With_ respect to material facts (as _opposed_ to legal argument[4]) I have drawn _all_ _reasonable_ inferences _in_ favor of Simpson. _Matsushita_ Elec. _Indus._ Co. v. Zenith _Radio_ Corp., _475_ _U.S._ 574, 587, 106 _S.Ct._ 1348, 89 L.Ed.2d 538 _(1986)._ In undertaking the exhaustion inquiry, the _defendants_ _bear_ the _burden_ _of_ proof on this affirmative defense, see Casanova v. Dubois, 304 F.3d 75, 77-78 (1st _Cir.2002),_ and _may_ _discharge_ their burden by demonstrating that _their_ is no record evidence _to_ support Simpson's _case_ on this question, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Vis-à-vis Simpson's constitutional claims Simpson _would_ bear the burden _at_ trial, and, as to any essential factual element of his claim on which _he_ _would_ bear the burden of proof at _trial,_ Simpson's _failure_ to come forward with sufficient evidence to generate a trialworthy _issue_ would warrant summary judgment for the defendants. In re Spigel, 260 F.3d _27,_ _31_ (1st Cir.2001). B. Exhaustion pursuant to § 1997e(a) As they did in their motion to dismiss the defendants press for _dismissal_ of this entire action _on_ the grounds _that_ _Simpson_ failed to exhaust his administrative remedies as required by _42_ U.S.C. § 1997e(a). In § 1997e(a) Congress provided: No _action_ shall be brought with respect to prison _conditions_ under section 1983 of this title, or _any_ other _Federal_ 289 law, _by_ a prisoner confined in _any_ jail, prison, or other _correctional_ facility _until_ such administrative remedies as are available _are_ exhausted. 42 U.S.C. § 1997e(a). In my recommended decision on _the_ motion to dismiss _I_ _concluded_ that _Simpson_ _had_ _adequately_ plead exhaustion for purposes of surviving the motion to dismiss.[5] As anticipated, the record _on_ _these_ cross-motions _for_ _summary_ judgment provides a better basis _for_ making the _exhaustion_ determination. _The_ facts that are material to the exhaustion concern are as follows. The inmate _grievance_ procedure for the Penobscot County Jail is not disputed by the _parties._ It is contained in _the_ inmate _handbook_ and provides: _An_ inmate may file a grievance of an alleged violation of civil, Constitutional, or statutory rights ... or _to_ appeal a previous grievance decision. Jail personnel will provide _inmates_ who wish _to_ report a grievance (consistent with the definition) with a _copy_ of the Grievance form _used_ by the Penobscot County Jail. _Completed_ grievances may be submitted _directly_ to _the_ _Corrections_ Officer, Asst. Shift Supervisor or Shift Supervisor _who_ will sign the grievance indicating receipt of the grievance, to include date and time. Once signed by _the_ Receiving Officer, _the_ inmate will be _given_ a _copy_ of 290 the submitted grievance. When a _grievance_ is resolved, a copy of the written _response/finding_ will be provided _to_ the inmate within _twenty-four_ (24) hours. _An_ inmate may appeal a grievance _decision_ _to_ the _next_ level of _command_ for review, stating the reason _for_ the appeal. Grievances that appear _frivolous_ in nature _or_ include obscenities or are _unrelated_ _to_ jail operations and activities will not _be_ considered. _Once_ the _inmate_ has exhausted the internal grievance system, he/she may submit their grievance _to_ the Maine Department of Correction or other _review_ agency for _external_ review. Upon request, jail personnel will provide inmates who wish _to_ report a _grievance_ with adequate writing supplies. Inmate grievances addressed to the Maine Department
983 F.Supp. 977 (1997) SITHON MARITIME COMPANY, Plaintiff, v. HOLIDAY MANSION, a Division of Mohawk, Inc., and Mercury Marine, a Division of Brunswick Corporation, Defendants. No. CIV. A. 96-2262-EEO. United States District Court, D. Kansas. October 22, 1997. 978 979 980 981 Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS, Michael G. Chalos, Richard M. Ziccardi, George J. Tsimis, New York City, for Plaintiff Sithon Maritime Co. Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, Anthony M. DeMarea, Shughart, Thompson & Kilroy, Overland Park, KS, for Defendant Holiday Mansion. Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS, John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO, Alex B. Marconi, Patrick X. Fowler, Snell & Wilmer L.L.P., Phoenix, AZ, for Defendant Mercury Marine. MEMORANDUM AND ORDER EARL E. O'CONNOR, District Judge. This matter is before the court on the motion for summary judgment of defendant Mercury Marine ("Mercury") on plaintiff's complaint (Doc. # 73), and defendant Mercury's motion for summary judgment on defendant Holiday Mansion's cross-claim (Doc. # 124). After careful consideration of the parties' briefs and evidentiary materials, the court is prepared to rule. For the reasons stated below, Mercury's motion on plaintiff's complaint is granted as to counts I, II, V, VIII, and IX, granted in part and denied in part as to counts IV and VII, and denied as to counts III and VI. Mercury's motion is granted as to all counts on defendant Holiday Mansion's cross-claim. Summary Judgment Standards Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2511-12. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. "[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts *982 as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan.Rule 56.1. In this diversity case, we ascertain and apply Kansas law with the objective that the result obtained in federal court should be the same result as in a Kansas court. See Adams-Arapahoe School Dist. No.28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). With respect to plaintiff's fraud claims under Kansas law, federal law standards for granting summary judgment apply. See Fed.R.Civ.P. 56. In Anderson v. Liberty Lobby, 477 U.S. at 252, 255, 106 S.Ct. at 2512, 2513-14, the United States Supreme Court held: we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.... Consequently, where the ... "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Allegations of fraud must be proven by clear and convincing evidence. See Rajala v. Allied Corp., 919 F.2d 610, 626 (10th Cir.1990), cert. denied, 500 U.S. 905, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1, 6 (1970). Thus, plaintiff as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature to withstand summary judgment on its fraud claims. See Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1430 (D.Kan.1995); Sprague v. Peoples State Bank, Colby, Kan., 844 F.Supp. 662, 667 (D.Kan.1994); All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 840 F.Supp. 1426, 1431 (D.Kan.1993). Analysis I. Mercury's Motion For Summary Judgment On Plaintiff's Complaint. A. Factual Background. For purposes of defendant's motion, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to the non-movant, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1. Plaintiff Sithon Maritime Company ("Sithon") was organized in December 1994 for the purpose of obtaining exclusive government issued permits to operate a high speed ferry boat service to shuttle passengers between two of three peninsulas in Northern Greece. In late 1994, Mr. Vagianos, who later became president of Sithon, began negotiating with defendant Holiday Mansion for the possible purchase of four 50-passenger ferry boats. Mr. Vagianos advised Holiday Mansion that the boats needed to achieve a cruising speed of at least 24 knots for the anticipated ferry service and that the ferry boats would run 24 hours a day. Holiday Mansion advised Mr. Vagianos that the ferries could be powered by either two Mercury 7.3L diesel engines and Bravo III stern drives or by two Volvo diesel engines and stern drives. Mr. Byquist of Holiday Mansion advised Mr. Vagianos that the Mercury engines had more horsepower and would allow the boats to go faster than	983 f. supp. 977 ( 1997 ) sithon maritime company, plaintiff, v. holiday estate, a division of mohawk, inc., and mercury marine, a division of brunswick corporation, defendants. no. civ. a. 96 - 2262 - eeo. united states district court, d. kansas. october 22, 1997. * 978 * 979 * 980 * 981 lee m. smithyman, smithyman & zakoura, chtd., overland park, ks, michael g. chalos, richard m. ziccardi, george j. tsimis, new york city, for plaintiff sithon maritime co. norman r. kelly, norton, wasserman, jones & kelly, salina, ks, anthony m. demarea, shughart, thompson & kilroy, overland park, ks, for his home mansion. heather suzanne woodson, stinson, mag & fizzell, p. c., overland park, ks, john c. aisenbrey, stinson, mag & fizzell, p. c., kansas city, mo, alex b. marconi, patrick x. fowler, snell & wilmer l. l. p., phoenix, az, and defendant mercury marine. memorandum and order earl e. o ' connor, district judge. this matter is before the court on the motion for summary judgment of defendant mercury marine ( " mercury " ) on plaintiff ' s complaint ( doc. # 73 ), and defendant mercury ' s motion for summary judgment on defendant holiday mansion ' s cross - claim ( app. # 124 ). after careful consideration of the parties ' briefs and evidentiary materials, the court is prepared to rule. for the reasons stated below, mercury ' motions motion on plaintiff ' s complaint is granted as to counts i, v, v, viii, and iii, granted in part and denied in part as to counts iv and vii, and denied as to counts iii and vi. mercury ' s motion is granted as to all information on defendant holiday mansion ' s cross - claim. summary judgment standards summary judgment is appropriate " if the pleadings, depositions, answers constitute interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " fed. r. civ. p. 56 ( c ) ; accord anderson v. liberty lobby, inc., 477 u. s. 242, 247, 106 s. ct. 2505, 2510, 91 l. ed. 2d 202 ( 1986 ) ; vitkus v. beatrice co., 11 f. 3d 1535, 1538 - 39 ( 10th cir. 1993 ). a factual dispute is " material " only if it " might affect the outcome of the suit under the governing law. " anderson, 477 u. s. at 248, 106 s. ct. at 2510. the moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. celotex corp. v. catrett, 477 u. s. 317, 323, 106 s. ct. 2548, 2552 - 53, 91 l. ed. 2d 265 ( 1986 ) ; hicks v. city of watonga, 942 f. 2d 737, 743 ( 10th cir. 1991 ). essentially, the inquiry as to whether an issue is genuine is " whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one - sided that one party must prevail as a matter of law. " anderson, 477 u. s. at 251 - 52, 106 s. ct. at 2511. an issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. id. at 248, 106 s. ct. at 2510. this inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. id. at 252, 106 s. ct. at 2511 - 12. once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial " as to those dispositive matters for which it carries the burden of proof. " applied genetics int ' l, inc. v. first affiliated sec., inc., 912 f. 2d 1238, 1241 ( 10th cir. 1990 ) ; see also matsushita elec. indus. co. v. zenith radio corp., 475 u. s. 574, 586 - 87, 106 s. ct. 1348, 1355 - 56, 89 l. ed. 2d 538 ( 1986 ) ; bacchus indus., inc. v. arvin indus., inc., 939 f. 2d 887, 891 ( 10th cir. 1991 ). the nonmoving party may not rest on his pleadings but must set forth specific facts. applied genetics, 912 f. 2d at 1241. " [ w ] e must view the record in the light most favorable to the parties opposing the motion for summary judgment. " deepwater invs., ltd. v. jackson hole ski corp., 938 f. 2d 1105, 1110 ( 10th cir. 1991 ). " in a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. " conaway v. smith, 853 f. 2d 789, 793 ( 10th cir. 1988 ). the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. anderson, 477 u. s. at 256, 106 s. ct. at 2514. where the nonmoving party fails to properly respond to the motion for summary judgment, the facts * 982 as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. d. kan. rule 56. 1. in this diversity case, we ascertain and apply kansas law with the objective that the result obtained in federal court should be the same result as in a kansas court. see adams - arapahoe school dist. no. 28 - j v. gaf corp., 959 f. 2d 868, 870 ( 10th cir. 1992 ). with respect to plaintiff ' s fraud claims under kansas law, federal law standards for granting summary judgment apply. see fed. r. civ. p. 56. in anderson v. liberty lobby, 477 u. s. at 252, 255, 106 s. ct. at 2512, 2513 - 14, the united states supreme court held : we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.... consequently, where the... " clear and convincing " evidence requirement applies, the trial judge ' s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. allegations of fraud must be proven by clear and convincing evidence. see rajala v. allied corp., 919 f. 2d 610, 626 ( 10th cir. 1990 ), cert. denied, 500 u. s. 905, 111 s. ct. 1685, 114 l. ed. 2d 80 ( 1991 ) ; sipes v. crum, 204 kan. 591, 464 p. 2d 1, 6 ( 1970 ). thus, plaintiff as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature to withstand summary judgment on its fraud claims. see ramirez v. ibp, inc., 913 f. supp. 1421, 1430 ( d. kan. 1995 ) ; sprague v. peoples state bank, colby, kan., 844 f. supp. 662, 667 ( d. kan. 1994 ) ; all west pet supply co. v. hill ' s pet prods. div., colgate - palmolive co., 840 f. supp. 1426, 1431 ( d. kan. 1993 ). analysis i. mercury ' s motion for summary judgment on plaintiff ' s complaint. a. factual background. for purposes of defendant ' s motion, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to the non - movant, pursuant to federal rule of civil procedure 56 and district of kansas rule 56. 1. plaintiff sithon maritime company ( " sithon " ) was organized in december 1994 for the purpose of obtaining exclusive government issued permits to operate a high speed ferry boat service to shuttle passengers between two of three peninsulas in northern greece. in late 1994, mr. vagianos, who later became president of sithon, began negotiating with defendant holiday mansion for the possible purchase of four 50 - passenger ferry boats. mr. vagianos advised holiday mansion that the boats needed to achieve a cruising speed of at least 24 knots for the anticipated ferry service and that the ferry boats would run 24 hours a day. holiday mansion advised mr. vagianos that the ferries could be powered by either two mercury 7. 3l diesel engines and bravo iii stern drives or by two volvo diesel engines and stern drives. mr. byquist of holiday mansion advised mr. vagianos that the mercury engines had more horsepower and would allow the boats to go faster than	983 F. Supp. 977 (1997) SITHON MARITIME COMPANY, Plaintiff, v. HOLIDAY MANSION, a Division of Mohawk, Inc. , and Mercury Marine, a Division of Brunswick Corporation, Defendants. No. CIV. A. 96 - 2262 - EEO. United States District Court, D. Kansas. October 22, 1997. * 978 * 979 * 980 * 981 Lee M. Smithyman, Smithyman & Zakoura, Chtd. , Overland Park, KS, Michael G. Chalos, Richard M. Ziccardi, George J. Tsimis, New York City, for Plaintiff Sithon Maritime Co. Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, Anthony M. DeMarea, Shughart, Thompson & Kilroy, Overland Park, KS, for Defendant Holiday Mansion. Heather Suzanne Woodson, Stinson, Mag & Fizzell, P. C. , Overland Park, KS, John C. Aisenbrey, Stinson, Mag & Fizzell, P. C. , Kansas City, MO, Alex B. Marconi, Patrick X. Fowler, Snell & Wilmer L. L. P. , Phoenix, AZ, for Defendant Mercury Marine. MEMORANDUM AND ORDER EARL E. O ' CONNOR, District Judge. This matter is before the court on the motion for summary judgment of defendant Mercury Marine (" Mercury ") on plaintiff ' s complaint (Doc. # 73 ), and defendant Mercury ' s motion for summary judgment on defendant Holiday Mansion ' s cross - claim (Doc. # 124 ). After careful consideration of the parties ' briefs and evidentiary materials, the court is prepared to rule. For the reasons stated below, Mercury ' s motion on plaintiff ' s complaint is granted as to counts I, II, V, VIII, and IX, granted in part and denied in part as to counts IV and VII, and denied as to counts III and VI. Mercury ' s motion is granted as to all counts on defendant Holiday Mansion ' s cross - claim. Summary Judgment Standards Summary judgment is appropriate " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " Fed. R. Civ. P. 56 (c ); accord Anderson v. Liberty Lobby, Inc. , 477 U. S. 242, 247, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986 ); Vitkus v. Beatrice Co. , 11 F. 3d 1535, 1538 - 39 (10th Cir. 1993 ). A factual dispute is " material " only if it " might affect the outcome of the suit under the governing law. " Anderson, 477 U. S. at 248, 106 S. Ct. at 2510. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U. S. 317, 323, 106 S. Ct. 2548, 2552 - 53, 91 L. Ed. 2d 265 (1986 ); Hicks v. City of Watonga, 942 F. 2d 737, 743 (10th Cir. 1991 ). Essentially, the inquiry as to whether an issue is genuine is " whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one - sided that one party must prevail as a matter of law. " Anderson, 477 U. S. at 251 - 52, 106 S. Ct. at 2511. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S. Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S. Ct. at 2511 - 12. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial " as to those dispositive matters for which it carries the burden of proof. " Applied Genetics Int ' l, Inc. v. First Affiliated Sec. , Inc. , 912 F. 2d 1238, 1241 (10th Cir. 1990 ); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U. S. 574, 586 - 87, 106 S. Ct. 1348, 1355 - 56, 89 L. Ed. 2d 538 (1986 ); Bacchus Indus. , Inc. v. Arvin Indus. , Inc. , 939 F. 2d 887, 891 (10th Cir. 1991 ). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F. 2d at 1241. " [W] e must view the record in the light most favorable to the parties opposing the motion for summary judgment. " Deepwater Invs. , Ltd. v. Jackson Hole Ski Cktp. , 938 F. 2d 1105, @120 (10th Cir. 1991 ). " In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. " Conaway v. Smith, 853 F. 2d 789, 793 (10th Cir. 1988 ). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported ,Ktion for summary judgment. Anderson, 477 U. S. at 256, 106 S. Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts * 982 as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D. Kan. Rule 56. 1. In this diversity case, we ascertain and apply Kansas law with the objective that the result obtained in federal court should be the same result as in a Kansas court. See Adams - Arapahoe School Dist. No. 28 - J v. GAF XoTp. , 959 F. 2d 868, 870 (10th Cir. 1992 ). With respect to plaintiff ' s fraud claims under OQnsas law, federal law standards for granting summary judgment apply. See Fed. R. Civ. P. 56. In Anderson v. Liberty Lobby, 477 U. S. at 252, 255, 106 S. Ct. at 2512, 2513 - 14, the United States Supreme Court held: we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of Lro)f that would apply at the trial on the merits. .. . Consequently, where the. .. " clear and convincing " evidence requirement applies, the trial judge ' s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Allegations of fraud must be proven by clear and convincing evidence. See Rajala v. Allied SoEp. , 919 F. 2d 610, 626 (10th Cir. 1990 ), cert. denied, 500 U. S. 905, 111 S. Ct. 1685, 114 L. Ed. 2d 80 (1991 ); Sipes v. Crum, 204 Kan. 591, 464 P. 2d 1, 6 (1970 ). Thus, plaijticf as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature to withstand summary judgment on its fraud claims. See Ramirez v. IBP, Inc. , 913 F. Supp. 1421, 1430 (D. Kan. 1995 ); Sprague v. Peoples State Bank, Colby, Kan. , 844 F. Supp. 662, 667 (D. Kan. 1994 ); All West Pet Supply Co. v. Hill ' s Pet Prods. Div. , Colgate - Palmolive Co. , 840 F. Supp. 1426, 1431 (D. Kan. 1993 ). Analysis I. Mercury ' s Motion For Summary Judgment On Plaintiff ' s Complaint. A. Factual Background. For purposes of defendant ' s motion, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to the non - movant, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56. 1. Plaintiff Sithon Maritime Company (" Sithon ") was organized in December 1994 for the purpose of obtaining exclusive godernmen% issued permits to operate a high speed ferry boat service to shuttle passengers between two of three peninsulas in Northern Greece. In late 1994, Mr. Vagianos, who later became president of Sithon, began negotiating with defendant Holiday Mansion for the possible purchase of four 50 - passenger ferry boats. Mr. Vagianos advised Holiday Mansion that the boats needed to achieve a cruising speed of at least 24 knots for the anticipated ferry service and that the ferry boats would run 24 hours a day. Holiday Mansion advised Mr. Vagianos that the ferries could be powered by either two Mercury 7. 3L diesel engines and Bravo III stern drives or by two Volvo diesel engines and stern drives. Mr. Byquist of Holiday Mansion advised Mr. Vagianos that the Mercury engines had more horsepower and would allow the boats to go rastrr than	983 F.Supp. (1997) SITHON MARITIME COMPANY, Plaintiff, v. HOLIDAY MANSION, a Division of Mohawk, Inc., and Mercury Marine, Division of Brunswick Corporation, Defendants. No. CIV. A. 96-2262-EEO. United States District Court, D. Kansas. October 22, 1997. 978 979 980 981 Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland KS, Michael Richard M. Ziccardi, George J. Tsimis, New York City, for Plaintiff Sithon Maritime Co. Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, Anthony M. DeMarea, Shughart, Thompson & Kilroy, Park, KS, for Defendant Holiday Mansion. Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS, John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO, Alex Marconi, Patrick X. Fowler, Snell & Wilmer L.L.P., Phoenix, AZ, for Mercury Marine. MEMORANDUM AND ORDER EARL E. O'CONNOR, District Judge. This matter is before the court on the motion for summary judgment of defendant Mercury Marine ("Mercury") on plaintiff's complaint # 73), and defendant Mercury's motion for summary judgment on defendant Holiday Mansion's cross-claim (Doc. # After careful consideration of the parties' briefs and materials, the court is prepared to rule. For the reasons stated below, Mercury's motion plaintiff's complaint is granted as to counts I, II, VIII, and IX, granted in part and denied in part as to counts IV and VII, and denied as to counts III and VI. motion is granted as to all counts on Holiday Mansion's cross-claim. Summary Judgment Standards Summary is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact the moving party entitled to a judgment as a matter law." Fed.R.Civ.P. 56(c); accord Anderson v. Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. 248, S.Ct. at 2510. The moving party bears initial burden of showing that there is an absence of any issue of material fact. Corp. Catrett, 477 U.S. 323, 106 S.Ct. 2548, 2552-53, L.Ed.2d 265 (1986); Hicks v. City of Watonga, F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so that one must as a matter of law." Anderson, 477 U.S. at 251-52, S.Ct. at An issue of genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard proof that would apply at trial. Id. at 252, 106 S.Ct. at 2511-12. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain trial "as to those dispositive matters which carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, (10th The nonmoving party may rest on his pleadings but must set forth specific Applied Genetics, 912 F.2d at 1241. "[W]e must view the record in the light most favorable to the parties opposing the motion for judgment." Deepwater Invs., Ltd. Jackson Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, on suspicion, and may not escape summary judgment in the mere hope that will turn up at Conaway Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence some alleged factual dispute between the parties will not defeat an properly supported motion for summary judgment. Anderson, 477 at 256, 106 S.Ct. at Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts *982 as set forth by the moving party are deemed admitted for purposes summary judgment D.Kan.Rule 56.1. In this diversity case, we ascertain and Kansas law with the objective that the result in federal court should be the same result as in a Kansas Adams-Arapahoe School Dist. No.28-J v. GAF Corp., 959 F.2d 868, (10th Cir.1992). With respect to plaintiff's fraud claims Kansas law, federal law standards granting summary judgment apply. See Fed.R.Civ.P. 56. In v. Liberty Lobby, 477 U.S. at 252, 255, 106 S.Ct. at 2512, 2513-14, United Supreme Court we are convinced that the inquiry involved in ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the on the Consequently, where the "clear and convincing" evidence requirement the trial judge's summary judgment inquiry to whether a genuine issue exists will be whether the evidence is such that the jury applying that evidentiary standard could find for the plaintiff or the defendant. of fraud must be proven by clear and convincing evidence. See Rajala v. Allied Corp., 919 F.2d 626 (10th Cir.1990), cert. denied, 500 U.S. 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1, (1970). Thus, plaintiff as the nonmoving party carrying the burden of proof trial must present evidence of a clear and convincing nature withstand summary judgment its fraud claims. Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1430 Sprague v. Peoples State Bank, Colby, Kan., 844 F.Supp. 662, 667 (D.Kan.1994); All West Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive 840 1426, 1431 (D.Kan.1993). Analysis I. Mercury's Motion For Summary Judgment On Plaintiff's Complaint. A. Factual Background. For purposes of defendant's motion, the following is a brief summary of the material facts that are deemed admitted, or where viewed in the light most favorable to the non-movant, pursuant to Federal Rule of Procedure 56 and District of Kansas Rule 56.1. Plaintiff Sithon Maritime Company ("Sithon") was organized in December 1994 for the purpose of obtaining exclusive government issued permits to operate a high speed ferry boat to shuttle passengers between two three peninsulas in Northern Greece. In late 1994, Mr. Vagianos, who later became president of Sithon, began negotiating defendant Mansion the purchase four 50-passenger ferry Mr. advised Holiday Mansion the boats to achieve a speed at least 24 knots for the anticipated ferry service and that ferry boats would run 24 hours a day. Holiday Mansion advised Mr. Vagianos that the ferries could be powered by two diesel engines and III stern drives or by two Volvo diesel engines and stern drives. Mr. of Holiday Mansion advised Mr. Vagianos that the Mercury engines had more horsepower and would boats to go faster than	983 f.Supp. 977 (1997) sitHON mArITIME CoMpANy, plAintiFf, v. hoLiDAy mansiOn, a DivISIon of MoHaWK, iNc., ANd MErcUrY marInE, A diVISion OF BRUnSwick corpOrATiON, dEFEnDaNtS. No. ciV. a. 96-2262-eeo. uNiTed STaTEs DIstRIcT cOURt, d. kAnSaS. oCTOBeR 22, 1997. 978 979 980 981 Lee M. sMithyMan, smItHYmAN & ZAKOURa, CHtD., OVeRLanD paRK, ks, michaEL g. CHAloS, ricHaRd M. zicCaRdi, George J. TsIMIS, new yoRK cItY, fOr pLAIntiFf SiThOn MaRiTIMe Co. NorMAn R. keLLY, nORtON, wAsseRmAn, jOnes & KeLly, salInA, ks, anthony m. DEmArea, shUghART, thomPSON & KILroy, oVerlAnD paRK, KS, foR DEfeNdaNT hOLIday manSIOn. hEAThEr sUZANNE WOODSon, StINsoN, mAg & FizZell, p.C., oVeRLaND PARK, ks, johN C. aiSENBRey, stinson, Mag & FIZZELl, P.C., kANSaS CitY, mo, alex b. marCOni, PaTriCk X. FowlER, SNeLl & wIlmER l.l.P., pHOeniX, Az, FOr dEfEnDAnT MErcURY MaRine. MEmoRanDUm And ORder EarL e. O'CONNOr, dIsTricT jUdGE. This mAtTER is BEforE the CoURT oN tHE motiON FOr sUMMARY JUdGmENt OF deFENDANT meRcuRY MarINe ("meRcuRY") oN pLAiNTiff'S COmpLainT (dOc. # 73), AND dEFEndAnT mErCury'S moTion for SuMMaRy judGmeNT on DEfendANt hOLiDAy mANSIOn'S CROss-CLAim (Doc. # 124). afTer cAREFUL cONSIDeRaTioN oF tHE pArTIES' BrIEfS AnD EvIdeNtIary MATERialS, tHE COurt IS pREpAred tO RUle. For THE ReasOnS StAtEd BELOw, mERCUrY's motion oN pLaIntIfF's CoMPLAINT is GraNtEd as to COUnTS I, ii, v, vIii, AnD iX, gRaNTED IN pArt ANd denied in pArt as tO COUNTs iV aNd VII, AND DEniEd as TO coUnTs iIi And Vi. MeRCURY's moTIoN iS grANTED AS tO aLL COUNts oN DEfEnDant HoliDAy ManSiON's cROss-CLAIM. summary JUDgMEnt sTAndARDS sUmmaRy JUdGMEnT Is apprOprIATe "if ThE PlEAdiNGS, dePOsITiONs, ansWeRs To INTerrogAtORIEs, anD aDmISsiOns oN fIlE, toGEther wItH ThE aFFIDAViTS, If aNy, SHOw tHaT There is NO geNUInE ISsUE aS to aNY MAterial fACT aND That ThE MoVING pARty iS EnTiTlED TO A juDGMenT As A matter oF LaW." fEd.r.cIV.P. 56(C); ACCOrd andeRSON V. LIbeRtY LObBy, iNC., 477 u.s. 242, 247, 106 S.ct. 2505, 2510, 91 L.ED.2D 202 (1986); VItKus V. BEaTriCe CO., 11 f.3D 1535, 1538-39 (10Th cir.1993). a FACTual dIsPuTe Is "MatERiAl" ONly iF it "miGHT AffECT THE oUTcoME Of THe SUit UNDER the GOVErninG lAw." andERsON, 477 u.S. At 248, 106 s.cT. aT 2510. THe moViNG PaRTy beARs tHE iNitIAl BUrDEN Of sHOWIng tHat tHere iS an abSence Of ANy genUine issue Of MAteriAl FACt. CElOTEx coRp. V. cATreTT, 477 u.s. 317, 323, 106 S.ct. 2548, 2552-53, 91 l.ED.2D 265 (1986); HICkS V. CiTy Of WATONga, 942 f.2d 737, 743 (10Th ciR.1991). eSSEntIAllY, ThE inqUIry aS tO WhetHEr An iSsUe is GenUiNE iS "WhEthEr ThE EVidEnCE PRESENTs A SUfficiENT DIsAGREemeNt To reQUIrE submission TO The jurY oR whethER IT is SO OnE-SiDED THat oNE paRty MusT prEVAIL AS A MAtTEr Of law." aNDERsON, 477 u.S. aT 251-52, 106 s.CT. at 2511. AN iSSUE Of FaCt iS geNUiNe IF tHe EVIDeNCe is SufFICIENt fOR A reASOnAblE jurY to rETURN a vERdiCt For ThE NOnMOVinG pARTy. ID. AT 248, 106 s.ct. At 2510. this INqUiRY nECEssAriLy IMpliCAteS tHe sUbsTanTive EVIDEntIary sTaNDarD of proOf tHAt wOuLD APply AT trIal. iD. At 252, 106 s.cT. at 2511-12. OnCe ThE MOVING Party mEETS itS bURdEN, THE buRDEn ShiFTs To tHE NonmOvIng PArTy to dEMoNStRate thAt GEnuine iSSueS REMaIn For TriAl "as to thOse dispoSiTivE MaTTers foR Which it caRries tHE Burden oF ProOF." ApPLiED GeNEtics INT'l, Inc. V. FIRSt aFFILiaTed sEc., iNc., 912 f.2D 1238, 1241 (10TH CIr. 1990); See aLso MatsUsHIta eLEC. InduS. Co. v. ZenItH raDiO COrp., 475 U.s. 574, 586-87, 106 s.CT. 1348, 1355-56, 89 l.eD.2D 538 (1986); bacChus InDuS., inC. v. aRviN iNdUS., INc., 939 f.2d 887, 891 (10TH CIR.1991). THE nONMOviNg pARtY may not REST on hIs PlEAdinGS bUt MuSt SET FoRtH sPecifIc fAcTS. aPplIEd GeNeticS, 912 f.2D aT 1241. "[w]e Must viEw THe RECoRd In the LiGHT MOst fAVOrABLE to tHe parTIes OpPosIng ThE moTiON FOr sUmmARy juDgmenT." dEEPWATeR iNVs., ltd. v. jACksON hOLe ski CORp., 938 f.2D 1105, 1110 (10TH CIR.1991). "In A resPonSe TO A MotIon fOR suMMaRy JUDgMEnt, a pARtY CAnnoT ReLY on IGNOraNce of faCtS, On spECULaTiOn, oR oN sUspiCioN, And mAy not ESCApE SUmmARy JuDGmEnt iN ThE MerE hOPE THaT SoMEtHiNg wiLL TuRn UP aT triAL." coNaway v. SMITh, 853 F.2d 789, 793 (10tH cIR. 1988). tHE merE EXIsTENCE of some aLlEGEd FAcTUal dISpuTe BetWEEn tHe pArtIes WilL NOt DEfeaT AN OtheRwIsE PRopErLy SuPPORTed mOTiOn fOr sUMmarY JudGMeNT. andeRSoN, 477 u.s. at 256, 106 S.Ct. At 2514. WHERe the nonMovIng PARTy FAIlS tO PropERLY resPOnd To tHe moTIon foR sUmMarY juDgMENT, thE FACts *982 As sET FoRTh By THE MOviNg paRTY aRe DEeMed admItteD for purpOSEs OF ThE sUmmAry JuDGMeNt moTIOn. d.KaN.RULE 56.1. In ThIs diverSITy CaSE, WE AscertaIN anD APpLY kAnSAS lAW witH tHe OBJecTivE tHaT thE reSUlT OBtaineD iN FeDeRal cOURt shOUld BE THe SaMe REsUlT AS IN a KANsaS CoUrT. SEe aDams-aRapahOe sCHoOl DIST. no.28-j V. GaF coRP., 959 f.2d 868, 870 (10Th cir.1992). With reSpeCt tO PLAinTiFF's FrAuD claIMS UNdEr kANsaS lAw, FEDerAl LaW stAnDArDs fOr gRANTiNg sumMary JUDGment aPpLY. sEe Fed.R.civ.P. 56. In AnDerSON V. lIbeRTY LOBby, 477 U.s. At 252, 255, 106 S.cT. aT 2512, 2513-14, tHe UNiTed sTaTeS sUPREME cOURt Held: wE ARE cONVInCed tHAT THE INQUiry INvolVeD In a RuLINg on A moTIoN foR SumMarY jUDgMeNt OR for A dirECTeD VeRdicT nECESSArILY IMpLicatES ThE suBsTANTIve eviDeNTIARy StAndard OF Proof ThAt wouLD ApPLY AT THe triAl On the mERITS.... cOnSeqUENTlY, whERe THe ... "cLEaR and COnvInCing" evidence ReQuIrEMeNt ApPLIES, THE TRIAL jUDGe's sUMMAry JUDGmenT INQuiRy AS tO WheTheR A gEnUiNE ISSUE eXIsTS wIlL bE WhEtHER THe EVIdEnCe preSEnTeD Is suCH THAT The jUry apPLyINg tHAT EviDEnTiary stAnDaRD coULd reaSOnAbLy FinD for EiTHer The PlAintIff OR THe defenDAnT. alLeGAtIonS Of fRAuD Must bE proVEn BY cLeAr AND COnVincIng EViDeNCE. SeE RAJala v. ALlied COrP., 919 F.2d 610, 626 (10tH CIR.1990), cERT. deNied, 500 u.S. 905, 111 S.CT. 1685, 114 l.ed.2D 80 (1991); sIPEs V. crUm, 204 KAn. 591, 464 P.2d 1, 6 (1970). tHus, PLaiNTiFF AS tHe nONMOvInG PARty carryiNG The BuRdEn Of ProoF aT TriAL must pRESENt sUfFiCIENt evIdenCE of a cleaR And cONViNciNg naTUrE TO wiTHStAnd sUmmARY JudgMEnt ON iTs frauD ClAIMS. SEe rAmiReZ V. iBp, inC., 913 F.SupP. 1421, 1430 (D.kAN.1995); SpRAgue v. peoPlES state BaNK, COlbY, kAN., 844 F.Supp. 662, 667 (d.KAN.1994); AlL wEST pet SupplY CO. V. HIlL's pET PRods. dIv., cOlgaTe-paLMolIVE co., 840 f.SuPP. 1426, 1431 (D.kan.1993). anALYsIS i. mERCury'S moTion For SumMAry jUDGMEnT on PlAIntIFF'S ComplaINt. A. FAcTUAl BAcKgROUND. for purPoSEs of DEFendAnt'S mOTIoN, ThE fOLloWiNg IS A brIeF sUmMAry of the MaTERiaL Facts That aRE UNcOntROveRted, dEemED ADmItTed, Or wHeRE cONTroVErted VIeWeD in thE LiGHt MOST FaVOrABle To tHE NoN-movaNT, PUrSuaNt to FEDEral rULe of cIViL pRoCedURe 56 And DisTRiCt Of KANSas RUle 56.1. plAinTIFf siTHON maritimE CoMPAnY ("SITHoN") WaS ORgAniZED IN DeCember 1994 FoR tHe pUrpOse oF OBtAINinG EXcLUSIvE govERNmEnt IssuED PeRmitS tO operAtE a hiGh spEed FeRRY boAt Service TO shutTLE pAsSengers beTwEEN tWo of thREe PENiNSULas in NortHerN gREECE. IN lATe 1994, MR. vaGIAnOs, WhO laTER BecaME preSIDeNt Of siTHON, beGAN neGOtiatiNg With dEfendAnt Holiday mAnSIon foR THE pOSsIBLe PuRChaSE OF FoUr 50-pAsSenGER FeRRy boAts. mR. vagiaNOS advISeD HOLidAy mANSiOn thAt tHE bOATs NEEDED To AchieVE A cRUIsing speEd of AT LEaSt 24 kNOTS For ThE aNTicIpatEd ferRy sErVIce AnD thAT tHE feRRy boats wouLD RuN 24 hOuRs a DAY. holIday maNsIOn aDviSED MR. vAgiAnOS tHat tHE FErRieS CoULd be poWERed by EithEr tWO mERCuRY 7.3l dIesel eNgInES And bRaVO IIi stErN drives or BY tWo vOLvO DIESEL engIneS AnD STErn driveS. mr. byqUIsT oF HOlIDAY MaNsIon advisEd mR. vAGIaNOS ThAT tHe meRCURy eNGiNeS HaD MOre horsEPOWEr AnD WOUlD Allow tHe bOAtS to go fastEr tHAn	983 F.Supp. 977 (1997) SITHON MARITIME COMPANY, Plaintiff,v.HOLIDAY MANSION, a Division of Mohawk,Inc., and Mercury Marine, a Division of Brunswick Corporation, Defendants. No. CIV. A. 96-2262-EEO. United States District Court, D. Kansas. October22, 1997. 978 979 980 981Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS, Michael G. Chalos, Richard M. Ziccardi,George J.Tsimis, New York City, for Plaintiff Sithon MaritimeCo. Norman R. Kelly, Norton, Wasserman, Jones& Kelly,Salina, KS, Anthony M. DeMarea, Shughart, Thompson & Kilroy, Overland Park, KS, for DefendantHoliday Mansion. HeatherSuzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS,John C. Aisenbrey, Stinson,Mag & Fizzell, P.C., Kansas City,MO,Alex B. Marconi,Patrick X.Fowler, Snell & Wilmer L.L.P.,Phoenix, AZ, forDefendant Mercury Marine. MEMORANDUM AND ORDEREARL E.O'CONNOR, District Judge. This matter is before thecourtonthe motion forsummary judgment of defendant Mercury Marine ("Mercury") on plaintiff's complaint (Doc. # 73), and defendantMercury'smotion for summary judgment ondefendantHoliday Mansion's cross-claim (Doc. # 124). After careful consideration of the parties' briefsand evidentiary materials, the court isprepared to rule. For the reasons stated below, Mercury's motion on plaintiff's complaint is granted as to countsI, II, V,VIII, and IX, granted in part and denied in part as tocountsIV and VII, and denied as to counts III andVI. Mercury'smotion is granted as to all counts on defendant HolidayMansion's cross-claim. Summary Judgment Standards Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories,and admissions on file, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact andthat the moving partyis entitled to a judgment as a matter oflaw." Fed.R.Civ.P. 56(c); accordAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,106 S.Ct. 2505, 2510,91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is"material" only ifit "mightaffect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248,106 S.Ct. at 2510. The movingpartybearsthe initial burden ofshowing that there isan absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477U.S. 317,323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737,743 (10thCir.1991). Essentially, theinquiry as to whether an issue isgenuine is "whether theevidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511. An issueof fact is genuine if theevidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.at 248, 106 S.Ct. at 2510. This inquiry necessarilyimplicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct.at 2511-12. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. FirstAffiliated Sec., Inc.,912 F.2d 1238, 1241 (10th Cir. 1990); see alsoMatsushita Elec. Indus.Co. v. ZenithRadioCorp., 475U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadingsbut must set forth specific facts. AppliedGenetics, 912 F.2d at1241."[W]e must view the record in the light mostfavorable to the parties opposing the motion for summary judgment." DeepwaterInvs.,Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "Ina response to a motion forsummary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some allegedfactual dispute between theparties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S.at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to themotion for summary judgment, the facts *982as set forth by the moving party are deemed admitted forpurposes of the summary judgmentmotion. D.Kan.Rule 56.1. In this diversity case, we ascertain and apply Kansas law with theobjective that the result obtained in federal court should be the same result asin a Kansas court. See Adams-Arapahoe School Dist. No.28-J v. GAF Corp., 959 F.2d 868,870 (10th Cir.1992). With respect to plaintiff'sfraud claims under Kansas law, federal law standards for granting summary judgment apply. See Fed.R.Civ.P. 56. In Anderson v. Liberty Lobby, 477U.S. at 252, 255, 106S.Ct. at 2512, 2513-14, the United States Supreme Court held: we areconvinced that the inquiry involved in a ruling on a motion for summary judgment or fora directed verdict necessarily implicates the substantive evidentiarystandard of proof that would apply at the trial on the merits.... Consequently,where the ... "clear andconvincing" evidence requirement applies, the trial judge's summary judgmentinquiry as to whether a genuine issue exists will be whether the evidencepresented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or thedefendant. Allegations of fraud must be proven by clear and convincing evidence.SeeRajala v. Allied Corp., 919 F.2d 610, 626 (10th Cir.1990), cert. denied, 500 U.S. 905, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1, 6 (1970). Thus, plaintiff as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature towithstand summary judgment on its fraud claims. See Ramirezv. IBP,Inc., 913 F.Supp. 1421, 1430 (D.Kan.1995); Sprague v.Peoples State Bank,Colby, Kan., 844 F.Supp.662, 667 (D.Kan.1994); All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 840 F.Supp. 1426, 1431 (D.Kan.1993). Analysis I. Mercury'sMotion For Summary Judgment OnPlaintiff's Complaint. A. Factual Background. For purposes of defendant's motion, the following is abrief summary of the materialfacts that are uncontroverted, deemedadmitted,or where controverted viewedin the light most favorable to the non-movant,pursuant toFederal Rule of Civil Procedure 56 and District of Kansas Rule 56.1. Plaintiff Sithon Maritime Company ("Sithon") was organized in December 1994 for the purpose of obtaining exclusivegovernment issued permits to operate a high speedferry boat serviceto shuttlepassengers between two of three peninsulas in Northern Greece. In late 1994, Mr. Vagianos, who later became president of Sithon, began negotiating with defendant Holiday Mansionfor the possible purchase offour50-passenger ferry boats. Mr. Vagianos advisedHoliday Mansion that the boats neededto achieve a cruising speed ofat least 24 knots forthe anticipated ferry service and that the ferry boats would run 24 hours aday.Holiday Mansion advised Mr. Vagianos that theferries could be powered by either twoMercury 7.3L diesel engines and Bravo III stern drives or by two Volvo diesel engines and stern drives. Mr. Byquist of Holiday Mansion advised Mr. Vagianos thatthe Mercury engines had more horsepower and would allow the boats to go faster than	983 F.Supp. 977 (1997) SITHON MARITIME COMPANY, Plaintiff, v. HOLIDAY MANSION, a _Division_ _of_ Mohawk, Inc., _and_ Mercury Marine, a Division of Brunswick Corporation, Defendants. No. CIV. A. 96-2262-EEO. United States District Court, _D._ Kansas. October _22,_ 1997. 978 979 980 981 Lee _M._ Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS, Michael G. Chalos, Richard M. _Ziccardi,_ George J. _Tsimis,_ New _York_ _City,_ for Plaintiff Sithon Maritime Co. Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, Anthony _M._ DeMarea, Shughart, _Thompson_ & Kilroy, Overland Park, _KS,_ for Defendant Holiday Mansion. _Heather_ Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS, _John_ C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO, Alex B. _Marconi,_ _Patrick_ X. Fowler, Snell & Wilmer _L.L.P.,_ Phoenix, AZ, _for_ Defendant _Mercury_ Marine. MEMORANDUM AND ORDER _EARL_ _E._ O'CONNOR, District _Judge._ This matter is before _the_ court on _the_ _motion_ for summary judgment of _defendant_ Mercury Marine ("Mercury") on plaintiff's _complaint_ _(Doc._ # 73), and defendant Mercury's motion for summary _judgment_ _on_ defendant _Holiday_ Mansion's cross-claim _(Doc._ # 124). After _careful_ consideration of the parties' briefs _and_ evidentiary materials, the court _is_ prepared to rule. For the reasons stated below, _Mercury's_ _motion_ on plaintiff's complaint is granted as _to_ counts I, II, V, VIII, _and_ IX, _granted_ in part and _denied_ in _part_ as to counts IV and VII, and denied as to counts III and VI. Mercury's motion is granted as to all counts on defendant _Holiday_ Mansion's cross-claim. Summary Judgment Standards Summary judgment is appropriate "if the pleadings, _depositions,_ _answers_ _to_ _interrogatories,_ and admissions _on_ file, _together_ with the affidavits, _if_ any, show that there is no genuine issue as _to_ any _material_ _fact_ and that the moving party is entitled to a _judgment_ _as_ _a_ matter of law." _Fed.R.Civ.P._ 56(c); _accord_ Anderson v. Liberty _Lobby,_ Inc., 477 U.S. 242, 247, _106_ _S.Ct._ 2505, 2510, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 _F.3d_ 1535, _1538-39_ (10th Cir.1993). A factual dispute is "material" _only_ if it _"might_ affect the _outcome_ of _the_ suit under the _governing_ law." Anderson, _477_ U.S. _at_ 248, _106_ S.Ct. at 2510. _The_ moving party bears the initial burden of showing that there is an absence of any genuine issue of _material_ fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, _2552-53,_ 91 L.Ed.2d _265_ (1986); Hicks v. City of Watonga, 942 _F.2d_ 737, 743 (10th Cir.1991). Essentially, the inquiry as _to_ whether an issue _is_ genuine is "whether the evidence presents a sufficient _disagreement_ to require submission to the jury or whether it is so _one-sided_ that one _party_ must prevail as a _matter_ of law." Anderson, _477_ U.S. at 251-52, _106_ S.Ct. _at_ 2511. _An_ issue of _fact_ is genuine if _the_ evidence is sufficient for _a_ _reasonable_ jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. _This_ inquiry necessarily implicates the substantive evidentiary standard of proof that _would_ _apply_ at trial. _Id._ at 252, _106_ S.Ct. at 2511-12. Once the moving party _meets_ its burden, the _burden_ shifts to the nonmoving party to demonstrate that _genuine_ _issues_ remain for trial "as to those _dispositive_ matters for _which_ _it_ carries the burden of proof." Applied Genetics Int'l, Inc. v. First _Affiliated_ Sec., Inc., 912 F.2d 1238, 1241 (10th _Cir._ 1990); see _also_ Matsushita Elec. _Indus._ Co. v. _Zenith_ _Radio_ Corp., _475_ U.S. 574, 586-87, _106_ S.Ct. _1348,_ 1355-56, 89 L.Ed.2d 538 _(1986);_ Bacchus Indus., Inc. v. _Arvin_ Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving _party_ may not _rest_ on his pleadings _but_ _must_ set forth specific _facts._ Applied Genetics, 912 F.2d at 1241. "[W]e _must_ view _the_ record in _the_ light most _favorable_ to the parties opposing the _motion_ for _summary_ _judgment."_ Deepwater Invs., Ltd. v. _Jackson_ _Hole_ _Ski_ Corp., 938 F.2d 1105, 1110 _(10th_ Cir.1991). _"In_ a _response_ to a _motion_ for summary judgment, a _party_ cannot rely on ignorance of facts, _on_ speculation, _or_ _on_ suspicion, and may not escape summary judgment _in_ the mere hope that something _will_ turn up at _trial."_ Conaway _v._ Smith, 853 F.2d _789,_ 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the _parties_ will not _defeat_ _an_ otherwise properly supported motion _for_ summary _judgment._ Anderson, 477 U.S. at _256,_ 106 S.Ct. at 2514. Where the nonmoving party fails _to_ properly respond to the motion for summary judgment, the facts *982 as set forth by the moving party are deemed admitted for purposes _of_ the summary _judgment_ motion. D.Kan.Rule _56.1._ In this diversity _case,_ we ascertain _and_ apply Kansas _law_ with the _objective_ that the result obtained in federal court should be the same result as in a _Kansas_ court. See Adams-Arapahoe _School_ _Dist._ No.28-J v. GAF Corp., 959 _F.2d_ 868, 870 (10th Cir.1992). _With_ respect _to_ plaintiff's fraud claims under Kansas law, _federal_ law standards _for_ granting summary judgment apply. _See_ Fed.R.Civ.P. 56. In Anderson v. Liberty Lobby, 477 U.S. at 252, _255,_ 106 S.Ct. at 2512, 2513-14, _the_ United States Supreme Court held: we are convinced that the inquiry involved in a ruling on a motion for summary judgment or _for_ _a_ directed verdict necessarily implicates the substantive _evidentiary_ standard of _proof_ that _would_ apply at _the_ _trial_ on _the_ merits.... Consequently, where the ... _"clear_ and convincing" evidence _requirement_ applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is _such_ that the jury applying that evidentiary standard could _reasonably_ find for either the plaintiff _or_ the _defendant._ Allegations _of_ _fraud_ must be proven _by_ clear and convincing evidence. See _Rajala_ v. Allied Corp., 919 F.2d _610,_ 626 (10th Cir.1990), cert. denied, 500 U.S. 905, 111 S.Ct. _1685,_ _114_ L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, _464_ P.2d 1, 6 (1970). Thus, _plaintiff_ _as_ the nonmoving party _carrying_ _the_ burden of proof at trial must present sufficient evidence of a clear _and_ _convincing_ nature to withstand _summary_ judgment on its _fraud_ claims. _See_ Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1430 _(D.Kan.1995);_ Sprague v. Peoples State _Bank,_ Colby, Kan., 844 F.Supp. 662, _667_ _(D.Kan.1994);_ All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 840 F.Supp. 1426, _1431_ (D.Kan.1993). _Analysis_ _I._ Mercury's Motion For Summary Judgment On _Plaintiff's_ _Complaint._ A. Factual Background. For purposes of _defendant's_ motion, the following is _a_ brief summary of the material _facts_ that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to _the_ non-movant, pursuant _to_ _Federal_ Rule of Civil Procedure 56 and District _of_ Kansas _Rule_ 56.1. Plaintiff _Sithon_ Maritime Company ("Sithon") was organized in _December_ _1994_ for _the_ purpose of obtaining exclusive government issued permits _to_ operate a high speed ferry boat service to shuttle passengers between _two_ of three _peninsulas_ in Northern Greece. In late 1994, Mr. Vagianos, who later became president of _Sithon,_ began negotiating with defendant Holiday Mansion _for_ the possible purchase _of_ four 50-passenger ferry boats. Mr. Vagianos _advised_ Holiday Mansion _that_ the boats needed to achieve a cruising speed _of_ at least _24_ knots for the anticipated _ferry_ service and that the ferry boats would _run_ 24 hours a day. Holiday Mansion advised Mr. Vagianos that the ferries could be _powered_ by either two Mercury 7.3L diesel engines and _Bravo_ III _stern_ drives or by two Volvo _diesel_ engines _and_ stern drives. Mr. Byquist of Holiday Mansion advised Mr. Vagianos that the Mercury _engines_ had more _horsepower_ and _would_ allow _the_ boats to go faster _than_
718 S.E.2d 145 (2011) STATE of North Carolina v. Terry Adonis BALDWIN. No. 325P11. Supreme Court of North Carolina. October 6, 2011. Anne Bleyman, for Baldwin, Terry Adonis. Amanda Little, Assistant Attorney General, for State of N.C. Peter S. Gilchrist, III, District Attorney, for State of N.C. ORDER Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant on the 1st of August 2011 in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the State of NC, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is *146 "Allowed by order of the Court in conference, this the 6th of October 2011." Upon consideration of the petition filed on the 1st of August 2011 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 6th of October 2011."	718 s. e. 2d 145 ( 2011 ) state of north carolina v. terry adonis baldwin. no. 10. supreme court of north carolina. october 6, 2011. anne bleyman, for baldwin, terence adonis. amanda little, assistant attorney general, for state of n. c. peter s. gilchrist, iii, district attorney, for state of n. c. order upon consideration of the notice of appeal from the north carolina court without appeals, filed by the defendant on the 1st of august 2011 in this matter pursuant to h. s. 7a - 30, and the motion to dismiss the appeal regarding lack of substantial constitutional question filed by the state of nc, the following order was entered and is hereby certified to the north carolina court by appeals : the motion to dismiss the appeal is * 146 " allowed by order of the court in conference, this the 6th of october 2011. " upon consideration of the petition filed on the 1st of august 2011 by defendant in this matter for discretionary review of the decision of another north carolina court of appeals pursuant to g. s. 7a - 31, the following order was entered and is hereby certified into the north carolina court of appeals : " denied by order to the court in conference, this the 6th of november 2011. "	718 S. E. 2d 145 (2011) STATE of North Carolina v. Terry wconis BALDWIN. No. 325P11. Supreme CLu%t of North Carolina. 0cFober 6, 2011. Anne Bleyman, for Baldwin, Terry Adonis. Amanda Little, Assistant Attorney General, for State of N. C. Peter S. Gilchrist, III, District Attorney, for State of N. C. ORDER Upon consKderatioH of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant on the 1st of August 20QQ in this matter pursuant to G. S. 7A - 30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the State of NC, the following order was entered and is hereby sertOfied to the North Carolina Court of Appeals: the motion to dismiss the appeal is * 146 " Allowed by order of the CoI4t in conference, this the 6th of October 2011. " Upon conWid#ration of the petition filed on the 1st of August Q01q by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G. S. 7A - 31, the following order was entered and is hereby certified to the North Sarolinx Court of Appeals: " Denied by order of the Court in conference, this the 6th of October 2011. "	718 S.E.2d 145 (2011) STATE Carolina v. Terry Adonis BALDWIN. No. Supreme of Carolina. October 6, 2011. Anne Bleyman, for Baldwin, Terry Adonis. Amanda Little, Assistant Attorney General, for State of N.C. Peter S. Gilchrist, III, District Attorney, for State of N.C. ORDER Upon consideration of the notice of appeal from the North Carolina Court filed by Defendant on the 1st of August 2011 in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed the State of NC, the following order was entered and is hereby certified to the North Carolina Court of Appeals: motion to dismiss the appeal is *146 "Allowed by of the Court in conference, this 6th of October 2011." Upon of the petition filed on the 1st August 2011 Defendant in this for review of the decision of the North Carolina Court Appeals pursuant to G.S. 7A-31, the following order entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this 6th of October 2011."	718 s.e.2d 145 (2011) STaTE oF noRth CArOlina v. terRY aDoNiS BAlDwiN. no. 325p11. SUPreMe COUrt oF NoRtH CaRoLINa. oCToBer 6, 2011. anNE bLEYmAn, FOr BalDWIN, TERry AdoNiS. Amanda LittLe, aSsIStANt ATTorNeY GeNerAL, For state Of N.c. PEter S. giLChriSt, III, DiStrIct attORNEY, for StAtE oF n.c. OrDEr UPoN coNsidErATION Of The noTiCE oF APPEAl frOM tHe NoRth cARolina CourT oF ApPeaLs, filEd by ThE DefeNdANT on thE 1st of AUGUst 2011 iN ThIs matTeR purSuAnT to g.S. 7A-30, AnD thE motIon To diSMiSs THE APPEAL FoR lACk oF SUbstANTiAl ConStituTIoNAl QuEStIoN FIleD by tHe stATE OF nC, tHe foLLOwing oRDeR was ENtereD And IS HEREbY CERTiFIEd To THE noRtH CAroliNa cOURT Of AppeALs: thE moTion To DISMisS thE aPPeAl is *146 "AllOwEd By orDEr OF tHE COUrT in coNFERENcE, tHIS tHe 6TH oF ocTObEr 2011." upoN CoNsIdeRatIOn OF thE pEtITIon FiLED on The 1sT Of auguSt 2011 BY dEFeNdaNT iN thiS MatTEr foR DIScrEtioNarY rEviEw Of tHe DEcision OF thE NorTH CArolInA COurT Of APPEALs pURsuaNt to g.S. 7a-31, THE foLlOWInG orDeR WAs EntEred And Is HereBY cErTIFIEd To THe nOrtH caroLina CoUrT Of ApPeALs: "deNIed by orDeR Of thE CoURt In ConfeRENcE, ThIS tHe 6Th of oCtOBEr 2011."	718 S.E.2d 145 (2011) STATE of North Carolina v. TerryAdonisBALDWIN. No. 325P11. Supreme Court ofNorth Carolina. October 6, 2011. AnneBleyman, for Baldwin, Terry Adonis.Amanda Little, Assistant Attorney General, forState of N.C. Peter S. Gilchrist, III, District Attorney, for State of N.C.ORDER Upon considerationof the notice ofappeal from theNorth CarolinaCourtof Appeals, filedby theDefendant on the 1st of August 2011 in thismatter pursuant to G.S. 7A-30, andthe motion to dismiss the appeal for lack of substantial constitutional question filed by the State of NC, the following orderwas entered andis herebycertified to theNorth Carolina Court of Appeals: the motion to dismissthe appealis *146 "Allowed by order of the Court inconference, this the 6thof October 2011." Upon consideration of the petitionfiled on the 1st of August2011 by Defendant in this matter for discretionary review of the decisionof theNorth Carolina Courtof Appeals pursuant to G.S. 7A-31, the following order wasentered andis hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference,this the6th of October 2011."	_718_ S.E.2d 145 (2011) STATE of North _Carolina_ v. Terry Adonis _BALDWIN._ No. 325P11. Supreme Court of _North_ Carolina. October 6, 2011. Anne Bleyman, for _Baldwin,_ Terry Adonis. Amanda Little, Assistant Attorney General, _for_ State of N.C. Peter _S._ Gilchrist, _III,_ District Attorney, _for_ _State_ of N.C. ORDER Upon consideration of the _notice_ of _appeal_ from the North Carolina Court of Appeals, filed _by_ _the_ Defendant on _the_ 1st of _August_ 2011 _in_ this _matter_ _pursuant_ _to_ G.S. 7A-30, and the _motion_ to dismiss _the_ appeal _for_ lack of substantial constitutional question filed by _the_ State of NC, the following order was entered and _is_ hereby certified to _the_ North Carolina Court of _Appeals:_ the motion to _dismiss_ the appeal is *146 "Allowed by _order_ _of_ the Court in conference, this _the_ _6th_ _of_ October 2011." _Upon_ _consideration_ of the petition filed on _the_ 1st of August 2011 by Defendant in this _matter_ for discretionary _review_ of the decision _of_ the _North_ Carolina Court of Appeals pursuant _to_ G.S. 7A-31, the following _order_ was entered and _is_ hereby certified to _the_ North Carolina _Court_ _of_ _Appeals:_ "Denied by order of the _Court_ in conference, this the 6th _of_ October 2011."
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,575-06 RONALD MIXON, Relator v. TRAVIS DISTRICT CLERK, Respondent ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 100459 IN THE 147TH JUDICIAL DISTRICT COURT FROM TRAVIS COUNTY Per curiam. O R D E R Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 147th Judicial District Court of Travis County, that more than 35 days have elapsed, and that the application has not yet been forwarded to this Court. In these circumstances, additional facts are needed. The respondent, the District Clerk of Travis County, is ordered to file a response, which may be made by: submitting the record on such habeas corpus application; submitting a copy of a timely filed order which designates issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); or stating that Relator has not filed an application for habeas corpus in Travis County. Should the response include an order designating issues, proof of the date the district attorney's office was served with the habeas application shall also be submitted with the response. This application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order. Filed: October 12, 2011 Do not publish	in the court to criminal appeals of texas no. wr - 17, 575 - 06 ronald mixon, relator v. travis district clerk, filed on application for a writ of mandamus cause no. 100459 by the 147th judicial district court from travis county per curiam. o r d e r meyer has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this court. in it, he contends that had filed an application for a writ of habeas corpus in the 147th judicial district court in travis county, that more than 35 days have elapsed, and that the application has not yet been forwarded to this court. in these circumstances, additional facts are needed. the respondent, being district clerk of travis county, is ordered to file a response, which may be made by : submitting the record on such habeas corpus application ; submitting a copy of a timely filed order which designates issues to be investigated, pending mccree v. hampton, 824 s. w. 2d 101 ( tex. crim. app. 1992 ) ; or stating that relator have not filed an application for habeas corpus in travis county. should the response include an order designating issues, proof of the date the district attorney ' s office was served with the habeas application shall also be submitted with the response. this application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. such response shall be submitted within 30 days of the date of this order. filed : october 12, 2011 do not publish	IN THE COURT OF CRIh*NAL APPEALS OF TEXAS NO. WR - 17, 575 - 06 RONALD MIXON, Relator v. TRAVIS DISTRICT CLERK, Respondent ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 100459 IN THE 147TH JUDICIAL DISTRICT COURT FROM TRAVIS sOiNTY Per curiQn. O R D E R Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 147th Judicial District dourh of Travis County, that more than 35 days have elapsed, and that the application has not yet been forwarded to this Court. In these circumstances, additional facts are needed. The respondent, the District Clerk of Travis County, is ordered to file a response, which may be made by: submitting the record on such habeas corpus application; submitting a copy of a timely filed order which designates issues to be investigated, see McCree v. Hampton, 824 S. W. 2d 578 (Tex. Crim. App. 1992 ); or stating thWG Relator has not filed an ap0licaHion for habeas corpus in TrWvks County. Should the response include an order designating issues, proof of the date the district atGprney ' s office was served with the habeas application shall also be submitted with the response. This application for leave to file a Erjt of kandamhs shall be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order. Filed: October 12, 2011 Do not publish	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,575-06 MIXON, Relator v. TRAVIS DISTRICT CLERK, ON APPLICATION A WRIT OF MANDAMUS CAUSE 100459 IN THE 147TH JUDICIAL DISTRICT COURT FROM TRAVIS COUNTY Per curiam. O R E R Relator has a motion for leave to file a writ to the original jurisdiction of this Court. In it, contends that he filed an application for a writ of habeas corpus in the 147th Judicial District Court of Travis County, that more than 35 days have elapsed, and that application has not been forwarded to this Court. In these circumstances, are needed. The respondent, the District Clerk of Travis County, is to file a response, which may be made by: submitting the record such habeas corpus application; submitting a copy of a timely filed order which designates issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); or stating that Relator has not an application habeas corpus in County. Should response include an order designating issues, proof of the date the district attorney's office was served with the habeas shall also submitted with the response. This application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. response shall be submitted within 30 days of the date of this Filed: October 12, 2011 Do publish	In the COuRt Of crIMinAL AppEALS OF TexAS nO. wR-17,575-06 ronaLd mIXOn, RElATOR V. tRAVIS dIsTRICt CLERk, ReSpONDent on appLiCAtiOn foR A wrIT Of manDAMUS caUSE NO. 100459 iN the 147Th JUdiCIaL DIStrIcT coURt frOm TraVis cOuntY peR cUrIaM. o r d e R reLAtOr hAS fiLED a moTION FOR lEavE to file a WrIt OF MANdAMUs purSUant to THe OrIgInaL JurIsDiCtION of ThIS COurt. In iT, hE cOnteNdS thAT He FiLED AN apPliCATioN fOR a WriT Of haBEas corpUS iN THe 147th jUdIciAL diSTRICt CoURT oF TrAVis CoUntY, tHAT moRe thAn 35 DAyS hAVe eLaPseD, AND That thE APPLICaTION has NOT YeT BEEn fOrWaRDeD tO this COuRT. in thEse CIrCUMstaNCes, addITiOnAl faCtS arE needEd. tHE ResPONdENT, the DistRiCt CLErK Of TRavIS couNTy, is OrdeRed tO FiLE a RespoNSE, WhICh mAY BE mAde by: sUBmiTTiNg thE reCORD on such HAbEAS cOrpuS APPliCaTioN; submITtInG A Copy Of A tImELY FiLed Order whIch DEsIGnAtEs iSSUEs tO BE INVestiGatED, seE mCcrEe V. HaMpTOn, 824 S.w.2d 578 (tex. crim. app. 1992); OR STATiNg thaT RELAtor haS not FileD an ApPlicAtIOn FOR habeAS CORPUS iN tRaVIs CouNTy. sHoUlD thE rEsPONSE inClUde an ORDER DesignaTING IsSues, pRoof of THe daTe the DIsTriCt attoRNEy's OffIce wAs serveD WIth THe HabEaS AppLIcATIon shall ALSO be sUbmitTED witH ThE RESponSe. tHiS aPpliCAtiOn FoR Leave TO FilE a WRit of MANdaMus ShALl bE helD In aBEYANCE UntIL THe RESPondENT has SUbMiTTED THE APPRoprIAte reSPOnsE. such REsponSE Shall be SuBmItTEd WithIN 30 DaYs of thE DAtE Of This ORDEr. FIleD: octOBER 12, 2011 do NOT pUBlisH	IN THECOURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,575-06 RONALD MIXON,Relatorv.TRAVIS DISTRICT CLERK, Respondent ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO.100459 IN THE 147TH JUDICIAL DISTRICT COURT FROMTRAVIS COUNTY Per curiam.O R D E R Relator has fileda motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contendsthat hefiledan application for a writ of habeas corpus in the147th JudicialDistrict Courtof Travis County, that morethan 35 dayshave elapsed, and thatthe application has not yet been forwarded to this Court.In these circumstances, additionalfacts are needed. Therespondent, theDistrict Clerk of Travis County, isordered to file a response, which may be made by: submitting the recordonsuch habeas corpus application; submitting a copy of atimely filed order which designates issues to be investigated, see McCree v. Hampton,824S.W.2d 578(Tex. Crim. App. 1992); or statingthat Relator hasnot filed an applicationfor habeas corpus in Travis County.Should the response include an orderdesignating issues,proofof thedate the districtattorney's office was served withthehabeasapplication shallalso be submitted with the response. This application forleave to file awrit of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submittedwithin 30 days of the date of this order. Filed: October 12, 2011 Do notpublish	IN THE _COURT_ OF CRIMINAL APPEALS OF _TEXAS_ NO. WR-17,575-06 RONALD MIXON, Relator v. TRAVIS DISTRICT CLERK, Respondent _ON_ APPLICATION FOR _A_ _WRIT_ OF _MANDAMUS_ CAUSE NO. 100459 _IN_ _THE_ 147TH JUDICIAL DISTRICT COURT _FROM_ TRAVIS _COUNTY_ Per curiam. O R D E R Relator has _filed_ a motion for leave to file _a_ writ of mandamus pursuant _to_ the original _jurisdiction_ of this _Court._ In _it,_ _he_ contends that _he_ filed _an_ _application_ for a writ of habeas corpus in the 147th Judicial District Court of Travis County, that more _than_ _35_ days have elapsed, and that the _application_ has not yet been _forwarded_ to this _Court._ _In_ these circumstances, additional facts are needed. The respondent, the District _Clerk_ of Travis County, is ordered _to_ file _a_ response, which _may_ be made _by:_ _submitting_ the record on _such_ habeas corpus application; submitting a copy of a _timely_ _filed_ order which designates issues to _be_ investigated, see McCree v. Hampton, _824_ _S.W.2d_ _578_ (Tex. Crim. App. 1992); or stating that Relator has _not_ filed _an_ application for _habeas_ corpus in Travis _County._ _Should_ the response include an order designating issues, _proof_ of the date the district attorney's office was _served_ with the habeas application shall also be submitted _with_ the response. This application for leave to file _a_ writ of mandamus shall _be_ held in abeyance until the respondent _has_ submitted the appropriate response. Such _response_ shall be submitted _within_ 30 days of the date of this _order._ Filed: _October_ 12, 2011 Do not publish
119 F.Supp.2d 485 (2000) Jean Patrick MICHEL, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent No. 4:CV-99-1879. United States District Court, M.D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, PA, for petitioner. Kate L. Mershimer, Assistant United States Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On October 22, 1999, petitioner Jean Patrick Michel, acting pro se, commenced this action by filing a document denominated "Motion for bond/relief under 28 U.S.C. [§] 2241." Michel is a native and citizen of Haiti who is currently a detainee of the Immigration and Naturalization Service (INS). He is subject to a final order 486 of deportation issued December 3, 1997, but INS has not been able to effectuate the deportation, apparently due to slow action on the part of Haiti. Succinctly stated, Michel seeks release on bond pending his removal. Before the court is the report and recommendation of U.S. Magistrate Judge Thomas M. Blewitt, which recommends that the petition be denied. DISCUSSION: I. STANDARD A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United States, 581 F.Supp. 1238, 1239 (M.D.Pa.1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge's finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, the district court may not grant a motion for summary judgment, Fed.R.Civ.P. 56, or a motion to dismiss under Fed.R.Civ.P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir.1990). Michel has filed objections to the report and recommendation which we review de novo. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Michel is a native and citizen of Haiti who entered the United States on September 11, 1971, as a lawful permanent resident. In October, 1997, INS issued an order to show cause alleging that Michel had been convicted twice in 1994 of criminal possession of stolen property, and was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheld by the Board of Immigration Appeals (BIA) on October 27, 1998. However, the Court of Appeals for the Second Circuit issued a stay of removal during the pendency of an appeal to that court. The Second Circuit has since affirmed the final order of removal and lifted the stay. Michel v. I.N.S., 206 F.3d 253 (2d Cir.2000). See also 8 U.S.C. § 1229b(c)(6). The removal is based on Michel's two convictions for crimes of moral turpitude. While the appeal was pending, Michel requested release on a $15,000.00 bond. The District Director in New York denied the request and notified Michel that he had the right to appeal to the BIA. No appeal from the denial was filed. Originally, Michel was released on bail by an immigration officer. However, the immigration judge revoked bail, stating that Michel was ineligible. Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United States, the process is slow. Given the above recitation, the issues before this court are limited. Michel is not one of those aliens subject to removal whose native country will not accept him, so that he is not likely to be subject to permanent detention. Also, there is no question regarding deportability, as any such question is answered by the Second Circuit's affirmance of the order of removal. Further, Michel may not petition for a waiver of deportation because he previously has received such a waiver. 206 F.3d at 257. The sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on bond because his native country moves slowly to accept him. As recited by the magistrate judge, Michel has stated the issue as whether the failure to release him from custody on bond after the expiration of the 90-day 487 removal period violated his right to due process. Report and Recommendation at 3 (quoting Petitioner's Amended Reply to Respondent's Brief at 1). III. JURISDICTION As a preliminary matter, we note that INS argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to 8 U.S.C. § 1226(e). The undersigned judge so held in Jacques v. Reno, 73 F.Supp.2d 477 (M.D.Pa.1999). In Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir.1999), our Court of Appeals held, though without analysis, that the district court had jurisdiction over a petition for a writ of habeas corpus under § 2241. Id. at 393 (citing Sandoval v. Reno, 166 F.3d 225, 237-238 (3d Cir.1999); DeSousa v. Reno, 190 F.3d 175, 182 (3d Cir.1999)). The petitioner in Chi Thon Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of crimes of moral turpitude and aggravated felonies. Id. at 392. He claimed to be eligible for release because his country of origin would not accept him. Id. at 393. The statutory provision on which we relied in Jacques, § 1226(e), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It follows, then, that the Third Circuit necessarily has abrogated Jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas corpus had been repealed by § 1226(e).[1] We turn, then, to the merits of the petition. IV. RELEASE ON BOND As noted, Michel claims to be entitled to release on bond or under an order of supervision because the 90-day period for removal has expired. The claim is asserted as arising under the Due Process Clause of the Fifth Amendment. Once an alien is ordered "removed," INS[2] is afforded a 90-day period in which to effect removal. 8 U.S.C. § 1231(a)(1)(A). The alien is subject to detention during the removal period. Sec. 1231(a)(2). After expiration of the 90-day period, the alien may be released under specified conditions. § 1231(a)(3). While aliens such as Michel who are deportable under § 1227(a)(2)(A)(ii) must be detained pending a final order of removal, 8 U.S.C. § 1226(c)(1)(B), inadmissible aliens, aliens removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4), and aliens determined to be a risk to the community or unlikely to comply with the removal order may be detained after expiration of the 90-day period. § 1231(a)(6). See also 8 C.F.R. §§ 241.1 et seq. (regulations governing post-hearing detention and removal, including continued detention and conditions of release). Michel argues, however, that this statutory language violates his right to substantive due process because it requires that he be kept in prolonged detention, i.e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. The basic *488 disagreement between the parties is the extent to which Michel's asserted liberty interest is cognizable under the substantive component of the Due Process Clause. This disagreement also is reflected in opinions by judges of this court on which the parties rely. In Sombat Map Kay v. Reno, 94 F.Supp.2d 546 (M.D.Pa.2000), Judge Rambo found that a deportable alien whose country of origin would not accept him was entitled to release on conditions. Judge Caldwell disagreed, finding that periodic review of an alien's continued detention satisfied the Due Process Clause. Cuesta Martinez v. I.N.S., 97 F.Supp.2d 647 (M.D.Pa.2000). We begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context. (A) Other Authority In Chi Thon Ngo, the petitioner was a native of Viet Nam who was paroled into the United States in 1982. He was convicted in state court for firearm possession and for attempted robbery in unrelated events. He was ordered to be deported in 1995 because he lacked a valid visa, he	119 f. supp. 2d 29 ( 2000 ) jean patrick michel, petitioner v. immigration and naturalization service, respondent no. 4 : cv - 99 - 1879. united states district court, m. d. pennsylvania. november 3, 2000. susan l. greene, york, pa, for petitioner. judith l. mershimer, assistant united states attorney, harrisburg, pa, for respondent. memorandum mcclure, district judge. background : on october 22, 1999, petitioner jean patrick michel, acting pro se, commenced this action by filing a document denominated " petition for bond / relief under 28 u. s. c. [ § ] 2241. " michel is a native and citizen of haiti who is currently a detainee of the immigration and naturalization service ( ins ). he is subject to a final order * 486 of deportation issued december 3, 1997, but ins has not been able to effectuate the deportation, apparently due to slow action on the part of haiti. succinctly stated, michel await release on bond pending his removal. before the court is the report and recommendation of u. s. magistrate judge thomas c. thompson, which recommends that the petition be denied. discussion : i. standard a district court is required to review de novo those portions of a magistrate judge ' s report to which objections are made. commonwealth of penna. v. united states, 581 f. supp. 1238, 1239 ( m. d. pa. 1984 ) ; 28 u. s. c. § 636 ( b ) ( 1 ). when no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. a magistrate judge ' s finding whether ruling on a motion or issue properly becomes the holding of the court unless objections are filed. thomas v. arn, 474 u. s. 140, 106 s. ct. 466, 88 l. ed. cl 435 ( 1985 ). however, the district court may not grant a motion for summary judgment, fed. r. civ. p. 56, or a motion to dismiss under fed. r. civ. p. 12 ( b ) ( 6 ) solely because the motion is unopposed ; all motions are subject to review for merit. stackhouse v. mazurkiewicz, 951 f. 2d 29, 30 ( 3d ci ##r. 1991 ) ; anchorage associates v. virgin islands board of tax review, 922 f. 2d 168, 174 ( 3d cir. 1990 ). michel has filed objections to the report and recommendation which we review de novo. ii. statement of facts and procedural history michel is a native and citizen of haiti who entered the united states on september 11, 1971, as a lawful permanent resident. in october, 1997, ins issued an order to show cause alleging that michel had been convicted twice in 1994 of criminal possession of stolen property, and was therefore removable under 8 u. s. c. § 1227 ( a ) ( 2 ) ( a ) ( ii ). an immigration judge found michel removable, a decision upheld by the board of immigration appeals ( bia ) on october 27, 1998. however, the court of appeals for the second circuit issued a stay of removal during the pendency of an appeal to that court. the second circuit has since affirmed the final order of removal and lifted the stay. michel v. i. n. s., 206 f. 3d 253 ( 2d cir. 2000 ). see also 8 u. s. c. § 1229b ( c ) ( 6 ). the removal is based on michel ' s two convictions for crimes of moral turpitude. while the appeal was pending, michel requested release on a $ 15, 000. 00 bond. the district director in new york denied the request and notified michel that he had the right to appeal to the bia. no appeal from the denial was filed. originally, michel was released on bail by an immigration officer. however, the immigration judge revoked bail, stating that michel was ineligible. michel has remained in custody while ins attempts to effect his deportation to haiti. although haiti accepts deportees from the united states, the process is slow. given the above recitation, the issues before this court are limited. michel is not one of those aliens subject to removal whose native country will not accept him, so that he is not likely to be subject to permanent detention. also, there is no question regarding deportability, as any such question is answered by the second circuit ' s affirmance of the order of removal. further, michel may not petition for a waiver of deportation because he previously has received such a waiver. 206 f. 3d at 257. the sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on bond because his native country moves slowly to accept him. as recited by the magistrate judge, michel has stated the issue as whether the failure to release him from custody on bond after the expiration of the 90 - day * 487 removal period violated his right to due process. report and recommendation at 3 ( quoting petitioner ' s amended reply to respondent ' s brief at 1 ). iii. jurisdiction as a preliminary matter, we note that ins argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to 8 u. s. c. § 1226 ( e ). the undersigned judge so held in jacques v. reno, 73 f. supp. 2d 477 ( m. d. pa. 1999 ). in chi thon ngo v. i. n. s., 192 f. 3d 390 ( 3d cir. 1999 ), our court of appeals held, though without analysis, that the district court had jurisdiction over a petition for a writ of habeas corpus under § 2241. id. at 393 ( citing sandoval v. reno, 166 f. 3d 225, 237 - 238 ( 3d cir. 1999 ) ; desousa v. reno, 190 f. 3d 175, 182 ( 3d cir. 1999 ) ). the petitioner in chi thon ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of crimes of moral turpitude and aggravated felonies. id. at 392. he claimed to be eligible for release because his country of origin would not accept him. id. at 393. the statutory provision on which we relied in jacques, § 1226 ( e ), also would apply to proceedings involving a petitioner like that in chi thon ngo. it follows, then, that the third circuit necessarily has abrogated jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas corpus had been repealed by § 1226 ( e ). [ 1 ] we turn, then, to the merits of the petition. iv. release on bond as noted, michel claims to be entitled to release on bond or under an order of supervision because the 90 - day period for removal has expired. the claim is asserted as arising under the due process clause of the fifth amendment. once an alien is ordered " removed, " ins [ 2 ] is afforded a 90 - day period in which to effect removal. 8 u. s. c. § 1231 ( a ) ( 1 ) ( a ). the alien is subject to detention during the removal period. sec. 1231 ( a ) ( 2 ). after expiration of the 90 - day period, the alien may be released under specified conditions. § 1231 ( a ) ( 3 ). while aliens such as michel who are deportable under § 1227 ( a ) ( 2 ) ( a ) ( ii ) must be detained pending a final order of removal, 8 u. s. c. § 1226 ( c ) ( 1 ) ( b ), inadmissible aliens, aliens removable under 8 u. s. c. § 1227 ( a ) ( 1 ) ( c ), ( a ) ( 2 ), or ( a ) ( 4 ), and aliens determined to be a risk to the community or unlikely to comply with the removal order may be detained after expiration of the 90 - day period. § 1231 ( a ) ( 6 ). see also 8 c. f. r. § § 241. 1 et seq. ( regulations governing post - hearing detention and removal, including continued detention and conditions of release ). michel argues, however, that this statutory language violates his right to substantive due process because it requires that he be kept in prolonged detention, i. e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. the basic * 488 disagreement between the parties is the extent to which michel ' s asserted liberty interest is cognizable under the substantive component of the due process clause. this disagreement also is reflected in opinions by judges of this court on which the parties rely. in sombat map kay v. reno, 94 f. supp. 2d 546 ( m. d. pa. 2000 ), judge rambo found that a deportable alien whose country of origin would not accept him was entitled to release on conditions. judge caldwell disagreed, finding that periodic review of an alien ' s continued detention satisfied the due process clause. cuesta martinez v. i. n. s., 97 f. supp. 2d 647 ( m. d. pa. 2000 ). we begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context. ( a ) other authority in chi thon ngo, the petitioner was a native of viet nam who was paroled into the united states in 1982. he was convicted in state court for firearm possession and for attempted robbery in unrelated events. he was ordered to be deported in 1995 because he lacked a valid visa, he	119 F. Supp. 2d 485 (2000) Jean Patrick MICHEL, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent No. 4: CV - 99 - 1879. United States District Court, M. D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, PA, for petitioner. Kate L. Mershimer, Assistant United States Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On October 22, 1999, petitioner Jean Patrick Michel, acting pro se, commenced this action by filing a document denominated " Motion for bond / relief under 28 U. S. C. [§] 2241. " Michel is a native and citizen of Haiti who is currently a detainee of the Immigration and Naturalization Service (INS ). He is subject to a final order * 486 of deportation issued December 3, 1997, but INS has not been able to effectuate the deportation, apparently due to slow action on the part of Haiti. Succinctly stated, Michel seeks release on bond pending his removal. Before the court is the report and recommendation of U. S. Magistrate Judge Thomas M. Blewitt, which rfcPmmends that the petition be denied. DISCUSSION: I. STANDARD A district court is required to review de novo those portions of a magistrate judge ' s report to which objections are made. Commonwealth of Penna. v. United States, 581 F. Supp. 1238, 1239 (M. D. Pa. 1984 ); 28 U. S. C. § 636 (b) (1 ). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge ' s finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U. S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985 ). However, the district court may not grant a motion for summary judgment, Fed. R. Civ. P. 56, or a motion to dismiss HndDr Fed. R. Civ. P. 12 (b) (6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F. 2d 29, 30 (3d Cir. 1991 ); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F. 2d 168, 174 (3d Cir. 1990 ). Michel has filed objections to the report and recommendation which we review de novo. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Michel is a native and citizen of Haiti who entered the United States on September 11, 1971, as a lawful permanent resident. In October, 1997, INS issued an order to show cause alleging that Michel had been convicted twice in 1994 of criminal possession of stolen oro(erty, and was therefore removable under 8 U. S. C. § 1227 (a) (2) (A) (ii ). An immigration judge found Michel removable, a decision upheld by the Board of Immigration Appeals (BIA) on October 27, 1998. However, the Court of Appeals for the Second Circuit issued a stay of removal during the pendency of an appeal to that court. The Second Circuit has since affirmed the final order of removal and lifted the stay. Michel v. I. N. S. , 206 F. 3d 253 (2d Cir. 2000 ). See also 8 U. S. C. § 1229b (c) (6 ). The removal is based on Michel ' s two convictions for crimes of moral turpitude. While the appeal was pending, Michel requested release on a $ 15, 000. 00 bond. The District Director in New York denied the request and notified Michel that he had the right to appeal to the BIA. No appeal from the denial was filed. Originally, Michel was feleas$d on bail by an immigration officer. However, the immigration judge revoked bauK, stating that Michel was ineligible. Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United States, the process is slow. Given the above recitation, the issues before this court are limited. Michel is not one of those aliens subject to removal whose native country will not accept him, so that he is not likely to be subject to permanent detention. Also, there is no question regarding deportability, as any such question is answered by the Second Circuit ' s affirmance of the order of removal. Further, Michel may not petition for a waiver of deportation because he previously has received such a waiver. 206 F. 3d at 257. The sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on bond because his native country moves slowly to accept him. As recited by the magistrate judge, Michel has stated the issue as whether the failure to release him from custody on bond after the expiration of the 90 - day * 487 removal period violated his right to due process. Report and Recommendation at 3 (quoting Petitioner ' s Amended Reply to Respondent ' s Brief at 1 ). III. JURISDICTION As a preliminary matter, we botw that INS argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to 8 U. S. C. § 1226 (e ). The undersigned judge so held in Jacques v. Reno, 73 F. Supp. 2d 477 (M. D. Pa. 1999 ). In Chi Thon Ngo v. I. N. S. , 192 F. 3d 390 (3d Cir. 1999 ), our Court of Appeals held, though without analysis, that the district court had jurisdiction over a petition for a writ of habeas corpus under § 2241. Id. at 393 (citing Sandoval v. Reno, 166 F. 3d 225, 237 - 238 (3d Cir. 1999 ); DeSousa v. Reno, 190 F. 3d 175, 182 (3d Cir. 1999) ). The petitioner in Chi Thon Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of crimes of moral turpitude and aggravated felonies. Id. at 392. He claimed to be eligible for release because his country of origin would not accept him. Id. at 393. The statutory provision on which we relied in Jacques, § 1226 (e ), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It follows, then, that the Third Circuit necessarily has abrogated Jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas corpus had been repealed by § 1226 (e ). [1] We turn, then, to the merits of the petition. IV. RELEASE ON BOND As noted, Michel claims to be entitled to release on bond or under an order of supervision because the 90 - day period for removal has expired. The claim is asserted as arising under the Due Process Clause of the Fifth Amendment. Once an alien is ordered " removed, " INS [2] is afforded a 90 - day period in which to effect removal. 8 U. S. C. § 1231 (a) (1) (A ). The alien is subject to detention during the removal period. Sec. 1231 (a) (2 ). After expiration of the 90 - day period, the alien may be released under specified conditions. § 1231 (a) (3 ). While aliens such as Michel who are deportable ^Jder § 1227 (a) (2) (A) (ii) must be detained pending a final order of removal, 8 U. S. C. § 1226 (c) (1) (B ), inadmissible aliens, aliens removable under 8 U. S. C. § 1227 (a) (1) (C ), (a) (2 ), or (a) (4 ), and aliens determined to be a risk to the community or unlikely to comply with the removal order may be detained after expiration of the 90 - day period. § 1231 (a) (6 ). See also 8 C. F. R. § § 241. 1 et seq. (regulations governing post - hearing detention and removal, including continued detention and conditions of release ). Michel argues, however, that this statutory language violates his right to substantive due process because it requires that he be kept in prolonged detention, i. e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. The basic * 488 disagreement between the parties is the extent to which Michel ' s asserted liberty interest is cognizable under the substantive component of the Due Process Clause. This disagreement also is reflected in opinions by judges of this court on which the parties rely. In Sombat Map Kay v. RFn9, 94 F. Supp. 2d 546 (M. D. Pa. 2000 ), Judge Rambo found that a deportable alien whose country of origin would not accept him was eg4itled to release on conditions. Judge Caldwell disagreed, finding that periodic review of an alien ' s continued detention satisfied the Due Process Clause. Cuesta Martinez v. I. N. S. , 97 F. Supp. 2d 647 (M. D. Pa. 2000 ). We begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context. (A) Other Authority In Chi Thon Ngo, the petitioner was a native of Viet Nam who was paroled into the United States in 1982. He was convicted in state court for firearm possfsWion and for attempted robbery in unrelated events. He was ordered to be deported in 1995 because he lacked a valid visa, he	119 F.Supp.2d 485 (2000) Jean MICHEL, v. AND NATURALIZATION SERVICE, No. 4:CV-99-1879. United States District Court, M.D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, PA, for petitioner. Kate L. Mershimer, Assistant United Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On October 22, 1999, petitioner Jean Patrick Michel, pro se, commenced this by a document denominated "Motion for bond/relief under 28 U.S.C. [§] Michel is a native and citizen of Haiti who currently a of the Immigration and Naturalization Service (INS). He is subject to a final order deportation issued December 3, 1997, but INS has been able effectuate the apparently due to slow action on the part of Haiti. Succinctly seeks release on bond pending his removal. Before the court is the and recommendation of U.S. Magistrate Judge Thomas M. Blewitt, which recommends that the petition be denied. STANDARD A district court is required novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United 581 F.Supp. 1238, 1239 (M.D.Pa.1984); U.S.C. § 636(b)(1). When objections are filed the report of magistrate judge, a court has discretion to review that report as it deems A magistrate judge's finding or ruling a motion or issue properly becomes the holding of the court unless objections are filed. v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, the district court may not grant a motion summary Fed.R.Civ.P. 56, or to dismiss under Fed.R.Civ.P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 Cir.1990). Michel has filed objections to the report and recommendation which we review de novo. OF FACTS PROCEDURAL HISTORY Michel is a native and citizen of Haiti who entered the United States on September 11, 1971, as a lawful permanent resident. In October, 1997, INS issued an order to show cause alleging that Michel been twice in 1994 of criminal possession of stolen property, and was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheld by the of Immigration Appeals on October 27, 1998. However, the Court of Appeals for the Second Circuit issued a stay of removal during the pendency of an appeal to that court. The Circuit has since affirmed the final order of removal and lifted the stay. Michel v. I.N.S., 206 F.3d 253 (2d Cir.2000). See 8 U.S.C. § 1229b(c)(6). The removal is on Michel's two convictions for crimes of moral turpitude. While was pending, Michel requested release on a bond. The District Director in denied the request notified Michel that he the right to appeal to the BIA. No appeal from the denial was filed. Originally, Michel was released on by an immigration officer. However, the immigration judge revoked bail, stating that Michel Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United States, the process is slow. Given the above recitation, the issues before this court Michel is not one of those aliens subject to removal whose native country will not accept him, that he is not likely to be to permanent detention. Also, there no question regarding deportability, as any such question answered by the Second Circuit's of the order of removal. Further, Michel may not for a waiver of deportation he previously has received such a waiver. 206 F.3d at 257. The sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on his native country moves slowly to accept him. As recited by the judge, Michel has stated the issue as whether failure to release him from on bond after the expiration of the 90-day 487 removal period violated his right to process. Report and Recommendation at 3 (quoting Petitioner's to Respondent's Brief at 1). III. JURISDICTION As a matter, we note that INS argued before the magistrate judge that the court lacked jurisdiction denial of bond pursuant to U.S.C. § 1226(e). The undersigned judge so held in Jacques v. Reno, F.Supp.2d 477 (M.D.Pa.1999). In Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir.1999), our of Appeals held, though without analysis, that the court had over a petition for a writ of habeas under § 2241. Id. at (citing Sandoval v. Reno, F.3d 237-238 (3d Cir.1999); DeSousa v. Reno, 190 F.3d 175, 182 (3d Cir.1999)). The petitioner in Chi Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for of crimes moral turpitude and aggravated felonies. Id. 392. He claimed to eligible for because his country of origin would not accept him. Id. at 393. The statutory on which we relied in Jacques, § 1226(e), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It then, that the Third Circuit necessarily has abrogated Jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas had been repealed by 1226(e).[1] We turn, to the merits the petition. IV. RELEASE ON BOND As noted, Michel claims to be entitled to release on bond or under an order of supervision because the 90-day period for removal has expired. The claim is asserted as under the Due Process Clause of the Fifth Amendment. Once an alien is ordered "removed," INS[2] afforded a 90-day period to U.S.C. § 1231(a)(1)(A). The alien is subject to detention during the removal period. Sec. 1231(a)(2). After expiration of the 90-day period, the may be released under specified § 1231(a)(3). While aliens such as Michel who are deportable under § 1227(a)(2)(A)(ii) must be pending final order of removal, 8 U.S.C. § 1226(c)(1)(B), inadmissible aliens, aliens removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), (a)(4), and aliens determined to be a risk to the community or unlikely to comply with the removal may be detained after expiration of the 90-day period. § 1231(a)(6). See also 8 C.F.R. §§ 241.1 et seq. (regulations governing post-hearing detention and removal, including continued detention and conditions of Michel argues, however, this statutory language violates his right to substantive due process because it requires in prolonged detention, i.e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. The basic 488 between the parties is the extent to which Michel's asserted liberty interest is cognizable under substantive component of Due Process This also is reflected in opinions judges of this court on which the parties rely. In Sombat Map Kay v. Reno, 94 F.Supp.2d 546 (M.D.Pa.2000), Judge Rambo found that a deportable alien whose country of origin would accept him was entitled to on conditions. Judge Caldwell disagreed, finding that periodic review of an alien's continued detention satisfied the Due Process Clause. Cuesta Martinez v. I.N.S., F.Supp.2d 647 (M.D.Pa.2000). We begin some of the case law leading to those decisions, as issued thereafter which put the decisions into context. (A) Other Authority In Chi Ngo, the petitioner was a native of Viet Nam who was paroled into the United States in 1982. He was convicted in state court for firearm possession and for attempted unrelated events. He was ordered to be deported in 1995 because he lacked valid visa, he	119 f.SUpP.2d 485 (2000) Jean PatRiCK MiCHel, PEtitIoNER v. ImMigRATiOn ANd NaTuRALiZATIOn SeRVicE, respoNDEnt No. 4:cv-99-1879. unItED staTEs dISTrICt COUrt, M.D. PENnSyLVAniA. nOVembeR 3, 2000. Sandra l. GreEne, yOrK, PA, FOr PetITIonER. katE L. meRShiMEr, AsSiSTAnT uniTeD StaTEs ATTORNEY, HArRISbUrg, pa, foR rEsponDenT. MEMoRanDUm mcCluRe, diStriCt JuDGE. BAckgrOUnd: on oCTOber 22, 1999, PeTitIonER jeAN PAtRIck MIcHel, ACtinG PRO sE, comMenCEd tHis ACTIon BY fiLINg a DoCuMENT denOmINaTeD "mOTion foR boND/reLIEF UNDer 28 U.S.c. [§] 2241." MICHEl IS a natIVE ANd CITiZeN Of haITi WHO Is curReNtly A DetaiNee Of ThE immIGRATioN And naTUrALIZATiON SErviCe (inS). HE iS SUbjEcT TO a FiNaL order 486 of DeporTaTion ISSueD decEMbeR 3, 1997, BUT INS haS not BeEn AbLE TO EffEctuAtE ThE depOrtATIOn, ApParenTly dUe To slow AcTIOn ON the pART OF haiti. suCCinctly StAtEd, MiCheL SeekS rElEAse ON Bond PEnDING HIs REmOval. befoRe tHe CourT Is ThE rePORT anD rEcoMMEnDaTioN Of U.s. mAGIStRaTE JUdgE tHOMas M. blewItt, WHiCh rEcOmMEnDs That THe pETITioN BE dENIeD. diScuSSiOn: I. stanDard A diStriCT coUrt iS rEQuiRED TO REVIEw de NOvo thosE portIONs Of a mAGistratE juDgE'S RePoRt tO whicH ObjECTIONS are MADE. CoMmonweALTh OF pEnNA. v. UNIteD STates, 581 f.sUPP. 1238, 1239 (M.D.pa.1984); 28 U.S.c. § 636(b)(1). WHeN No oBjeCTIOnS ARe fileD to The rePoRt OF A MAGistrAte JUDgE, A cOUrT hAs DiSCREtION to REVIeW tHaT rePOrT aS iT dEEMS aPPROPriAte. a mAgIsTRAtE JUdgE's finDiNG oR RUlINg on a MOTion oR isSUe PRoperlY BEcomES tHe holdiNg oF The cOUrt UnLeSS oBjecTIoNs aRE FIlED. tHOMas V. ARn, 474 U.s. 140, 106 S.Ct. 466, 88 l.eD.2D 435 (1985). HoWeveR, The DisTRicT coUrt MAY NoT GrANt a MOtiOn fOr SuMmarY juDgMeNt, FEd.R.civ.p. 56, oR A moTioN To disMISS uNder FeD.r.CiV.p. 12(b)(6) SOlelY BECAUsE THe MoTion Is UnOppOSED; SUCH moTioNs ARE sUBjEcT tO ReViEW for MeRiT. stacKhOUse v. MAZurKIEWICz, 951 F.2D 29, 30 (3d CiR. 1991); anCHORaGE asSOCIAtEs V. VirgIn ISlandS BOaRD oF tAx rEvieW, 922 F.2d 168, 174 (3D CiR.1990). MiChEl hAS fIled oBJecTioNs TO tHe rEPORT aND recOmmENDaTion WHiCh We RevieW De novo. II. StATEMent of FacTS ANd PrOCedUrAL hIStoRY MIChEL is A NAtivE aND cItiZEN oF haitI who enterEd thE UnITed staTEs oN sEPteMber 11, 1971, AS a laWFUL peRMaNeNT resIDent. In ocTOBER, 1997, ins iSsUEd aN oRdER to sHow CAusE ALlEgiNG thAt michEL HAD BEEn COnVicTEd twice In 1994 Of crImINal possessiOn of stolen proPeRty, anD WAS THErEfoRE REmOVabLe UNdeR 8 u.s.c. § 1227(A)(2)(a)(iI). an ImmIGrAtion JUDge FouNd miCHEl RemovAblE, A DeciSIOn UpHEld By the BoARd OF ImmigrATION APPEalS (bia) ON OCToBer 27, 1998. hOwevER, THe CoURT Of ApPealS FOR ThE SeCond cIRCUiT iSSUed a StaY Of ReMOvAL DUriNg the pEnDeNcY OF an appeaL to tHAt COURt. THE SEcOnD CirCUiT haS SinCe aFFirMEd tHe fINaL oRDEr OF rEMOVal anD liFted The Stay. MIchEL v. I.N.S., 206 F.3d 253 (2d cIR.2000). seE ALSo 8 U.s.C. § 1229B(c)(6). the rEmOvAl IS bASEd ON MICHEL'S twO cONVIctIOns fOR CRIMes Of MOral tURpitudE. whiLE THE aPpeAl WAS PeNdINg, MIcHel rEQuestEd rEleaSe oN A $15,000.00 BoNd. THe DISTRicT DIreCtoR iN New YoRk dENIed thE ReQuEst And nOTifIed micheL THAT he hAd tHe rIgHt TO appeAL To ThE BiA. nO aPpEAl fRom THE DeNiaL WaS FiLeD. oRigiNalLy, mIChEl WAs REleasEd ON BAil BY An imMIgrAtIoN oFficER. howEver, ThE immigrATIOn jUDGe revOKeD Bail, sTAtiNg THaT miChEl WAS iNELiGiblE. mIcHEl haS remainEd in CusTOdy WhiLE INs aTtempts To EFfECt HIS depoRtAtiON to hAIti. aLTHOugH HaiTi ACcepTs dEpoRtEES FROM tHe UniTED STATes, the PRoceSS is slow. GiVen tHE AboVe rECItatIOn, thE issUeS beForE THIs cOURT ARE LimiteD. MiChel IS noT One Of THOse alIeNs sUbJeCT tO REmOVal whoSe naTIvE CoUntry wilL NOT aCCePT hIM, so ThaT he IS noT lIKely to BE SuBjECT to perMaNenT deTENtion. AlSo, thErE Is No quESTIoN REGARDInG DePortABiLIty, AS aNy SucH quEstion iS aNsweRed By thE SECOnd CircuIt's AfFIRmANCe oF THE ORDer of RemoVAl. FurTHEr, MiCHel MaY NOt pEtitIoN FOR A WAIvER oF depORTAtIOn bECausE HE preViOusly Has rECEIved suCh a wAiVEr. 206 F.3d At 257. ThE SOle qUEStioN iS WHeTHER a rESiDeNT alien Who IS SubJEct TO rEmOvAl fOr COMmiTTInG CrimES of MoraL TuRPItUdE Has THE rigHt tO Be ReleAsEd ON bOnD bEcAusE his NaTIvE counTRy moves SlOWlY tO AcCePT HiM. As Recited bY ThE MaGIsTrate Judge, MICHel HAS StatEd thE iSSUe As WHetHEr tHe fAiLure TO RELeaSE HIm fRoM cUsTODy On boND aftEr THE EXPIRation oF The 90-DAY 487 rEmovAl PERiOD VIOLAtED HiS Right to dUE prOCess. RepORT And rEComMeNDaTiON at 3 (QUOtInG peTiTiOnER'S aMENded RepLy tO respoNdEnt'S BRIef At 1). iiI. jUrisDIctIoN As a pReLImINary MatTER, we Note tHaT INs ARguED BeFOrE thE MAgiStRATe jUDGe THAT the Court LaCKed jurisdIcTiOn oVER tHe deNiaL OF BOnd PursUANT TO 8 u.S.c. § 1226(E). tHE UndERsIgnEd JUDGE So HeLD In JAcqUes V. ReNo, 73 f.supp.2D 477 (m.d.pa.1999). IN chi thOn ngo v. i.N.S., 192 f.3d 390 (3D CiR.1999), OUr court Of AppEAlS HELd, ThOuGh withOuT ANalysIS, thAT ThE dIstrICT couRT Had jURISdiCTion oVeR a pETitION FoR a wrIt OF habEaS COrpUS uNdeR § 2241. Id. At 393 (CitinG sANdOVal v. reno, 166 F.3D 225, 237-238 (3D ciR.1999); dEsouSa V. RenO, 190 f.3D 175, 182 (3d CIR.1999)). tHe petItionEr In Chi THoN NGo WaS AN eXCLUdABlE ALiEn WhO WAs SubJEcted TO eXCLUSIoN pROCEEDiNGS foR laCK OF A ValID IMmiGraNT ViSa AND fOR CoNViCtiON of CriMES OF MorAl TurpITudE AND AGGravateD FELONIes. Id. aT 392. HE ClaimED TO Be Eligible For RElEASE BECAuSE his countRY OF ORIGiN would NoT accEpT HIM. id. at 393. ThE stAtutOry pRovIsiOn ON WHICh WE rELiEd IN jaCQuEs, § 1226(E), ALSO WouLd APpLY TO PROceedings INVolviNg A pETItIOnER lIke THat in CHi thON ngO. iT FoLLoWS, THen, THat thE tHIRd CIRCUIt NeCeSsariLy has AbroGatEd JACQuES to the EXtENT wE FouND thaT ouR JURIsDicTion TO ENterTAIn a PEtitIoN fOr A wrIT of HAbEas COrpUs HaD BEen REpEaLEd BY § 1226(e).[1] We tURN, tHEN, to thE mERITS Of The peTItiOn. IV. RELEaSE ON BONd as nOTED, MicheL cLAImS To BE ENTITled To REleaSE ON boND oR uNDer an oRder OF SuPERviSiOn beCAUSE tHE 90-dAY PERIoD FOR ReMovAL haS eXpIRed. ThE CLaim IS aSsErteD as arising uNDEr THE duE PROCESs cLaUSe OF the fIfTh amENdMENT. onCE aN AlIEN Is oRdereD "removED," InS[2] Is aFForDED a 90-daY PerIoD in whICh to EffecT ReMovaL. 8 U.S.c. § 1231(A)(1)(A). THE aLiEn Is subjECT tO DeTEntION DuRiNG THe REmOVAL PERIod. SeC. 1231(a)(2). aFtER expirAtIOn OF the 90-dAY perIod, the AlIEn mAY Be RELEasEd UNDeR SpEcifIED CoNDItioNS. § 1231(A)(3). whIle ALiENS SUch as michEL wHo aRE deportaBlE UnDER § 1227(A)(2)(a)(ii) mUsT bE DetAiNeD PENDInG a Final OrDER OF ReMovAL, 8 U.s.C. § 1226(c)(1)(b), INAdmIsSIbLe ALiENs, AlIENs rEmOvaBle UNdEr 8 U.S.c. § 1227(a)(1)(c), (A)(2), OR (A)(4), AnD aLIENs DETErMiNEd to Be A rISk TO The cOMMUNITy or uNLIkeLy tO COMpLY with thE rEmOVAl OrDEr maY Be detAInEd aFTer EXpiratiON of thE 90-dAY peRIod. § 1231(A)(6). SeE AlsO 8 c.F.r. §§ 241.1 et SEQ. (REgUlAtIONS GoverniNG POST-HeARinG dETEntiOn aNd rEmOvAl, iNCLudiNG coNtINued DEtEntIoN And CoNdItions oF reLEASE). MICHel arGUeS, HoWEVer, tHaT THIs StATutoRy LAnGUAGe VIoLaTES His rIghT TO SUBsTAntIvE dUE prOCeSs bEcAUse It REqUIres ThAT HE Be KePT IN pRolonGed dEtEntiOn, I.E. DePriVES hIM OF HIS fuNDAMENTal RIGht To lIBeRTY, WITHoUT An ADEquaTE gOVErNmeNTAl INTErESt jUSTifyINg tHe intrUSion. ThE BAsiC *488 disagReEmeNT bEtween ThE pArtIES IS thE EXTent tO whIch MIChEl'S aSSeRted lIBErty InTeREst IS coGNIzaBLE unDeR THE substanTIVE coMPoneNt Of The dUe PrOCeSs ClAUse. THis DiSAGREEmEnT also Is REfleCTed in OPInioNS By jUDGes oF thiS COURT on WhICH ThE PaRTIES RElY. in SoMBAt Map kay v. REno, 94 f.SUPP.2d 546 (M.d.pa.2000), judGE RAmbO FOuNd thAT a dEpoRTaBlE ALIeN Whose CoUntRY OF oRigiN WouLd Not aCCEPT HIM Was eNTitlED To RelEASe On CONditIonS. JUdGe cAldweLL diSAgrEeD, fINDInG That pERioDIC REVIew OF AN ALien'S cONTiNued DETenTIOn satiSFIed the dUE pRoCESS cLAUsE. CuesTA mArtinEz V. I.N.s., 97 F.suPP.2d 647 (M.D.Pa.2000). wE bEGiN with soMe oF The CaSE LAw LEaDING TO tHosE deCiSiOns, aS WElL aS opINioNS ISSueD thereAftEr wHiCh PUT The DECisioNS InTo cOnTEXT. (A) OTHeR AUTHoRIty in ChI tHoN nGo, thE PetiTIonER waS a NaTiVe of ViEt nAm Who was PAROleD iNto THe UNiteD stATes in 1982. He WAs coNviCtEd in STaTE courT For fiRearM PossESSIOn And fOr aTTeMPtEd roBBeRy in UNRELaTeD EVEnts. he was orDerEd to bE DePorted iN 1995 bEcAUse hE lackED A ValId vISa, HE	119 F.Supp.2d 485 (2000) JeanPatrick MICHEL, Petitioner v. IMMIGRATIONAND NATURALIZATION SERVICE, Respondent No. 4:CV-99-1879. United States District Court, M.D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, PA, for petitioner. Kate L.Mershimer, Assistant United States Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On October 22, 1999, petitioner Jean Patrick Michel, acting pro se, commenced this action by filing a document denominated "Motion for bond/relief under 28U.S.C. [§] 2241." Michel is a native and citizen of Haitiwho iscurrently a detainee of the Immigration and Naturalization Service (INS). He is subject to a final order 486of deportation issued December3,1997, but INS has not been able to effectuate the deportation, apparentlydue to slow action on thepart of Haiti. Succinctly stated, Michelseeks release on bond pending his removal.Before the courtis the report and recommendation of U.S. Magistrate Judge Thomas M. Blewitt, which recommends that the petition bedenied.DISCUSSION: I. STANDARD A district court is required to reviewde novo those portions of amagistrate judge's report towhich objections are made. Commonwealth of Penna. v. United States, 581 F.Supp. 1238, 1239(M.D.Pa.1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to reviewthat report as itdeems appropriate. A magistrate judge's finding or ruling ona motion or issue properly becomes the holding of the courtunless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.466,88 L.Ed.2d 435 (1985). However, the district court maynot granta motion for summary judgment,Fed.R.Civ.P. 56, or a motion to dismissunder Fed.R.Civ.P. 12(b)(6)solely because the motion is unopposed; such motions aresubject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3dCir. 1991); Anchorage Associates v. Virgin IslandsBoardof Tax Review, 922 F.2d168, 174 (3dCir.1990). Michel hasfiled objections to the report and recommendation whichwe review denovo. II. STATEMENT OF FACTS AND PROCEDURALHISTORY Michel is a nativeand citizenof Haiti who entered the United States on September 11, 1971, as a lawful permanent resident.In October,1997, INSissued an order toshow cause allegingthat Michel had been convicted twice in 1994 of criminal possession of stolenproperty, and was thereforeremovable under8U.S.C. § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheldby the Board of Immigration Appeals (BIA) on October 27, 1998. However, the Courtof Appeals for the Second Circuitissued a stay of removal duringthependency of an appeal to that court. TheSecond Circuithas since affirmedthe final order of removal and lifted the stay. Michel v. I.N.S.,206 F.3d 253 (2d Cir.2000). Seealso 8U.S.C. § 1229b(c)(6). The removal is basedon Michel's two convictions for crimes ofmoral turpitude. While theappeal was pending, Michel requested release on a $15,000.00 bond. The District Director inNew Yorkdenied the request and notifiedMichel that he had the right toappeal to the BIA. No appealfrom the denial was filed. Originally, Michel wasreleased on bail by an immigration officer. However, the immigration judge revoked bail, stating that Michelwasineligible. Michel hasremained in custody while INS attempts to effect his deportationto Haiti. Although Haiti acceptsdeportees from theUnited States, the process is slow.Given the above recitation, the issues before this courtare limited. Michel is not one of those aliens subject to removalwhose native country will not accept him, so that he is notlikely to be subject to permanentdetention. Also,there is no question regarding deportability, as any such question is answered by theSecond Circuit's affirmance of the orderof removal. Further,Michel may not petitionfor a waiver ofdeportation because hepreviously has received sucha waiver.206 F.3d at 257. The sole questionis whether a resident alien who is subject to removal for committingcrimesof moral turpitude has the right to be released onbond because his native country moves slowlyto accept him. As recited by the magistrate judge, Michel has statedthe issue aswhether the failure to release himfromcustody on bondafter the expirationof the 90-day487 removalperiod violatedhis right to due process. Report and Recommendation at3 (quoting Petitioner'sAmended Reply to Respondent's Brief at 1). III. JURISDICTION As a preliminary matter, we note that INS argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to8 U.S.C. § 1226(e). Theundersigned judge so held in Jacques v. Reno,73 F.Supp.2d 477 (M.D.Pa.1999). In Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir.1999), our CourtofAppeals held, though without analysis,thatthe district court hadjurisdiction over a petition for awrit ofhabeascorpus under§ 2241. Id. at 393 (citing Sandoval v. Reno,166 F.3d 225, 237-238 (3d Cir.1999); DeSousa v. Reno, 190 F.3d 175, 182 (3dCir.1999)). The petitioner in ChiThon Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a validimmigrant visa and forconviction ofcrimes of moral turpitude andaggravated felonies. Id. at 392. He claimed to be eligible for release because his country of origin would not accept him.Id. at 393. Thestatutory provision on which we relied in Jacques, § 1226(e), also would apply toproceedings involving a petitioner like that in Chi Thon Ngo. It follows, then, that the Third Circuit necessarilyhas abrogated Jacquesto theextent we found thatour jurisdiction toentertaina petition for a writ of habeas corpus had been repealed by § 1226(e).[1] We turn,then, to the merits of the petition. IV. RELEASE ON BOND As noted, Michel claims to be entitled torelease onbond or under an order of supervision because the 90-day periodfor removal has expired. The claimis asserted as arising under the DueProcess Clause of the Fifth Amendment. Once an alien is ordered "removed," INS[2] is afforded a 90-day periodin which to effect removal. 8 U.S.C. § 1231(a)(1)(A). The alienis subject to detention during the removal period. Sec.1231(a)(2). After expiration ofthe 90-day period, the alien maybe released under specified conditions. § 1231(a)(3). While aliens suchasMichel who are deportableunder § 1227(a)(2)(A)(ii)must be detained pendinga final order of removal, 8 U.S.C. § 1226(c)(1)(B), inadmissible aliens, aliens removableunder 8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4),and aliensdetermined to be a risk to the communityor unlikely to comply with the removal ordermay be detained afterexpiration ofthe 90-day period. § 1231(a)(6). See also 8 C.F.R. §§ 241.1 et seq. (regulations governing post-hearing detention and removal, including continued detentionand conditions of release). Michel argues, however, that this statutory languageviolates his right to substantive due process because it requires that he be kept in prolonged detention, i.e.deprives himof his fundamental right to liberty,without an adequategovernmental interest justifyingtheintrusion. Thebasic *488 disagreementbetween the parties is the extent to which Michel's asserted liberty interest iscognizable under the substantivecomponent of the Due Process Clause. This disagreement also is reflected in opinions by judges of this court on which the parties rely. In Sombat Map Kay v.Reno, 94 F.Supp.2d 546(M.D.Pa.2000),Judge Rambo found that a deportable alien whose country of origin would not accept him was entitled to release on conditions. Judge Caldwell disagreed, finding that periodic review of an alien'scontinued detention satisfied the Due Process Clause. Cuesta Martinez v. I.N.S., 97 F.Supp.2d 647 (M.D.Pa.2000). We begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context. (A)Other Authority In Chi Thon Ngo, the petitioner was a native of Viet Nam who was paroledinto the United States in 1982. He was convicted in statecourtfor firearm possession and for attempted robbery in unrelatedevents. He was ordered to be deportedin 1995 because he lackeda valid visa,he	119 _F.Supp.2d_ 485 (2000) _Jean_ Patrick _MICHEL,_ Petitioner _v._ IMMIGRATION AND NATURALIZATION _SERVICE,_ Respondent No. 4:CV-99-1879. United States _District_ Court, M.D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, _PA,_ _for_ petitioner. Kate L. _Mershimer,_ Assistant _United_ States Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On _October_ 22, 1999, petitioner _Jean_ Patrick Michel, acting pro se, commenced this action by filing a document denominated "Motion for bond/relief under _28_ _U.S.C._ [§] 2241." Michel is _a_ native _and_ citizen of Haiti _who_ is _currently_ a detainee _of_ the _Immigration_ and Naturalization Service (INS). _He_ is subject _to_ a final order _486_ of deportation issued December 3, 1997, but INS has not _been_ _able_ to _effectuate_ the _deportation,_ _apparently_ due to slow action on the _part_ of Haiti. Succinctly stated, Michel seeks release on bond pending his removal. Before the _court_ is the report and recommendation _of_ U.S. _Magistrate_ Judge Thomas M. _Blewitt,_ which recommends that the petition _be_ denied. DISCUSSION: _I._ _STANDARD_ A district court is required _to_ review de _novo_ those _portions_ of a magistrate judge's _report_ _to_ which _objections_ are made. _Commonwealth_ of _Penna._ v. _United_ States, 581 F.Supp. 1238, 1239 (M.D.Pa.1984); 28 U.S.C. § 636(b)(1). When no _objections_ are filed _to_ the _report_ _of_ a magistrate judge, a court has discretion to _review_ that report as it _deems_ _appropriate._ A _magistrate_ _judge's_ finding or _ruling_ _on_ a motion or _issue_ _properly_ _becomes_ the holding of _the_ _court_ unless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. _466,_ 88 L.Ed.2d 435 (1985). However, the _district_ court may not grant _a_ motion _for_ summary judgment, Fed.R.Civ.P. 56, or _a_ motion to _dismiss_ under Fed.R.Civ.P. 12(b)(6) solely because _the_ motion is unopposed; such motions are subject _to_ _review_ _for_ merit. _Stackhouse_ v. Mazurkiewicz, 951 F.2d 29, 30 (3d _Cir._ _1991);_ _Anchorage_ Associates _v._ _Virgin_ Islands _Board_ of Tax Review, 922 _F.2d_ 168, 174 (3d Cir.1990). Michel has filed objections to the report _and_ _recommendation_ which we _review_ de _novo._ II. STATEMENT _OF_ _FACTS_ _AND_ PROCEDURAL _HISTORY_ Michel is a native and _citizen_ of Haiti who entered the United States _on_ _September_ _11,_ 1971, as a lawful permanent resident. In _October,_ 1997, _INS_ _issued_ an order to show cause alleging that _Michel_ had _been_ convicted twice _in_ 1994 of criminal possession of stolen property, _and_ was therefore removable under 8 _U.S.C._ § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheld by the Board _of_ Immigration Appeals _(BIA)_ on October 27, 1998. However, the Court _of_ _Appeals_ for _the_ Second Circuit issued a stay of removal during the _pendency_ of an appeal to that court. The Second Circuit _has_ since _affirmed_ the final order of removal and lifted the _stay._ Michel _v._ I.N.S., _206_ F.3d _253_ (2d Cir.2000). See also 8 U.S.C. § 1229b(c)(6). The removal is _based_ _on_ _Michel's_ two convictions for crimes of moral turpitude. While _the_ appeal was pending, Michel requested release on a $15,000.00 bond. The District _Director_ in New York denied the request and notified _Michel_ that he had the _right_ to appeal to the BIA. No _appeal_ from the _denial_ _was_ filed. _Originally,_ _Michel_ was released on bail by an immigration officer. _However,_ the immigration _judge_ revoked bail, stating _that_ _Michel_ was ineligible. Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United _States,_ the process is slow. Given the above recitation, the issues before this court are limited. Michel is not one _of_ those _aliens_ _subject_ to removal whose native _country_ will not accept _him,_ so _that_ he _is_ not likely to be subject to permanent _detention._ Also, there _is_ no question regarding deportability, as any such question is answered by the Second Circuit's affirmance of the _order_ of removal. Further, _Michel_ may not petition for a waiver _of_ deportation because he previously has received such _a_ waiver. 206 F.3d at 257. _The_ _sole_ question is whether _a_ resident alien who is _subject_ to removal for _committing_ crimes of _moral_ turpitude has the _right_ to _be_ released on bond _because_ his _native_ country moves slowly to accept him. As _recited_ by the magistrate judge, Michel has stated the _issue_ as _whether_ the failure to release him from custody on bond after the _expiration_ of the 90-day 487 removal _period_ violated _his_ right to _due_ process. _Report_ and Recommendation _at_ _3_ (quoting Petitioner's Amended Reply _to_ Respondent's Brief at 1). _III._ _JURISDICTION_ As _a_ preliminary _matter,_ _we_ note that INS argued before the _magistrate_ judge _that_ the _court_ lacked _jurisdiction_ _over_ the denial of bond pursuant to 8 U.S.C. § 1226(e). The undersigned judge so _held_ in Jacques v. _Reno,_ _73_ F.Supp.2d 477 (M.D.Pa.1999). In _Chi_ Thon _Ngo_ v. I.N.S., 192 F.3d 390 (3d Cir.1999), our Court of Appeals held, though without analysis, _that_ _the_ _district_ court _had_ _jurisdiction_ _over_ a petition for a writ of habeas corpus under § _2241._ Id. at 393 (citing Sandoval v. Reno, 166 F.3d 225, 237-238 _(3d_ _Cir.1999);_ _DeSousa_ v. Reno, 190 F.3d _175,_ 182 (3d Cir.1999)). The _petitioner_ in _Chi_ Thon Ngo was an _excludable_ alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of _crimes_ of moral _turpitude_ _and_ aggravated felonies. _Id._ _at_ 392. _He_ claimed to be eligible for release because his country _of_ origin would _not_ accept him. Id. _at_ 393. The statutory provision _on_ _which_ we _relied_ _in_ Jacques, § 1226(e), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It _follows,_ then, that the Third Circuit necessarily _has_ abrogated Jacques to the _extent_ we found that our _jurisdiction_ to entertain a petition for a writ of habeas corpus had been repealed by § 1226(e).[1] We turn, then, to the merits of _the_ petition. _IV._ RELEASE ON BOND As noted, Michel claims to _be_ entitled to release on bond _or_ under an order of supervision _because_ _the_ 90-day period for removal has _expired._ The claim is asserted as arising _under_ the Due _Process_ Clause of _the_ Fifth _Amendment._ Once an alien is ordered "removed," _INS[2]_ is afforded a _90-day_ period _in_ which to effect removal. 8 U.S.C. § 1231(a)(1)(A). The alien is _subject_ to detention during the removal period. _Sec._ 1231(a)(2). After expiration of the _90-day_ period, the alien _may_ be _released_ under specified conditions. § 1231(a)(3). While _aliens_ such as Michel who _are_ _deportable_ under § 1227(a)(2)(A)(ii) _must_ be _detained_ pending a final order _of_ _removal,_ 8 U.S.C. § _1226(c)(1)(B),_ inadmissible aliens, aliens _removable_ _under_ 8 U.S.C. § 1227(a)(1)(C), (a)(2), or _(a)(4),_ and aliens determined _to_ _be_ a risk to the community or unlikely _to_ comply with _the_ removal _order_ may be _detained_ after expiration of _the_ 90-day _period._ § _1231(a)(6)._ See also 8 _C.F.R._ §§ _241.1_ et seq. (regulations governing post-hearing _detention_ and _removal,_ including continued detention and _conditions_ of release). Michel argues, _however,_ that this statutory language violates _his_ right to substantive _due_ process because it requires that he be kept in prolonged detention, i.e. deprives him of his fundamental _right_ to liberty, _without_ an adequate _governmental_ interest justifying the intrusion. The basic *488 disagreement between the parties is _the_ extent to which Michel's asserted liberty _interest_ _is_ cognizable _under_ the _substantive_ component of _the_ Due Process Clause. This disagreement also _is_ reflected in opinions by _judges_ of this court on _which_ the parties rely. In _Sombat_ Map Kay v. Reno, _94_ F.Supp.2d 546 (M.D.Pa.2000), Judge _Rambo_ _found_ that _a_ _deportable_ alien whose country _of_ origin would not accept him was entitled _to_ release on conditions. Judge Caldwell _disagreed,_ finding that periodic review of an alien's continued detention satisfied the Due Process Clause. Cuesta Martinez _v._ I.N.S., 97 F.Supp.2d 647 (M.D.Pa.2000). We begin with some of _the_ case law leading to _those_ decisions, as well as opinions issued thereafter which _put_ _the_ decisions into context. _(A)_ Other Authority In Chi Thon _Ngo,_ the petitioner was a _native_ of _Viet_ Nam _who_ _was_ paroled into the United _States_ in 1982. He was _convicted_ in state court for firearm _possession_ _and_ for attempted robbery in unrelated events. He was ordered _to_ be _deported_ in 1995 _because_ he lacked a valid visa, he
41 So.3d 224 (2010) ODUM v. STATE. No. 2D10-1573. District Court of Appeal of Florida, Second District. July 28, 2010. Decision without published opinion Affirmed.	41 so. 3d 224 ( 2010 ) odum v. state. no. 56 - 8. circuit court of appeal of oklahoma, second division. july 28, 2010. decision without an opinion affirmed.	41 So. 3d 224 (#020) ODUM v. S4zTE. No. @Dq0 - @t73. Dis6Eict X0urt of Appeal of Florida, Second Viqtrict. July 28, 10W0. Decision without OublisYed opinion Afflrked.	41 So.3d 224 (2010) ODUM v. STATE. No. 2D10-1573. District Court of Appeal Second District. July 28, 2010. Decision without published opinion Affirmed.	41 SO.3d 224 (2010) OduM v. stATE. nO. 2d10-1573. dIstRICt COURt Of apPEaL oF flOrida, SEcOnD DIsTRICT. jUly 28, 2010. dECISION WITHouT PUBliSHED OpIniOn AffIrMed.	41 So.3d 224 (2010) ODUM v. STATE. No. 2D10-1573. District Court of Appealof Florida, Second District. July 28, 2010. Decisionwithout publishedopinion Affirmed.	41 So.3d 224 _(2010)_ ODUM v. STATE. _No._ 2D10-1573. District Court of Appeal of _Florida,_ Second District. July _28,_ 2010. Decision without _published_ _opinion_ Affirmed.
875 F.2d 862 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Gloria COOLEY, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 88-1465. United States Court of Appeals, Sixth Circuit. April 10, 1989. Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and JOHN D. HOLSCHUH, District Judge*. PER CURIAM. 1 The Secretary of Health and Human Services ("Secretary") found that claimant Gloria Cooley ("Cooley") became disabled on May 23, 1984. Cooley appeals the Secretary's determination of her onset date, arguing she is entitled to an earlier date. For the reasons that follow, we affirm the finding of disability, but reverse the district court's determination of Cooley's onset date. I. 2 Cooley applied for disability insurance benefits on March 25, 1982. Her application was denied initially and upon reconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 10, 1984. On November 15, 1984, the ALJ issued an opinion finding Cooley not disabled. This became the final decision of the Secretary. Cooley then filed for judicial review in the district court. 3 On November 6, 1985, the district court remanded the case to the Secretary for a new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act of 1984 (Pub.L. No. 98-460). The ALJ conducted two more hearings, on May 19 and July 22, 1986. On January 8, 1987, the ALJ found Cooley disabled by an anxiety-related disorder pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.06, with an onset date of May 23, 1984. He characterized Cooley as suffering from post-traumatic stress disorder, aggravated by personality and anxiety problems. He found that she was never capable of returning to her past relevant work after she was injured in April 1981, but she could do unskilled work between April 1981 and May 23, 1984. The Appeals Council adopted the ALJ's recommendations. 4 Cooley continued to object to the 1984 onset date and reinstated her action for judicial review. Both Cooley and the Secretary moved for summary judgment. The matter was referred to the magistrate, who recommended granting Cooley's motion for summary judgment. The magistrate believed the medical evidence established that Cooley's ability to concentrate became substantially impaired in April 1981. Therefore, the hypothetical question relied upon by the ALJ which assumed she could concentrate did not accurately portray her impairment, and the vocational expert's response to the deficient question was not evidence that Cooley could perform unskilled work between April 1981 and May 1984. 5 The district court rejected the magistrate's recommendation and affirmed the Secretary's decision that Cooley became disabled on May 23, 1984. The district court did not address the magistrate's concerns with the ALJ's hypothetical question. Cooley then filed a timely appeal with this court. 6 Cooley was born April 5, 1946, and was thirty-five years old when she was injured on April 6, 1981, while working as a health instructor at M.L. King High School in Detroit. According to the injury report she filed with the Board of Education, Cooley was monitoring a hallway when she heard a commotion in a girls' restroom. She went into the restroom, found several boys and girls, and turned to find another teacher to help her with the situation. The students rushed to leave, and Cooley's head and body were squeezed and smashed several times as she became trapped between a brick wall and a door that was repeatedly thrown open by fleeing students. Cooley reported suffering bruises on her face and body. Later, in August 1981, when she underwent the first of numerous physical and neurological examinations, she reported that she lost consciousness during the restroom incident. Cooley's mental and emotional condition deteriorated significantly between April 1981 and May 1984. 7 Cooley testified that since the restroom incident she has been unable to think clearly, and has become forgetful to the point where she lives according to routines and lists. She experiences speech, reading and vision difficulties; becomes fatigued and overwhelmed frequently and easily; and has remained severely depressed, withdrawn and is frightened by other people and her inability to think and speak clearly and coherently. Cooley's complaints and symptoms are documented in an extensive medical history. 8 Between June 1981 and May 1983, Cooley was examined by several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and throat physician, and a speech therapist. She was hospitalized from May 23, 1984, through June 20, 1984, because of the increasing severity of her impairments and her withdrawal from normal life activities. At admission, she was anxious, easily overwhelmed, depressed and fearful.1 II. A. 9 Our scope of review is limited to the inquiry of whether the Secretary's findings are supported by "substantial evidence." Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewing for substantial evidence, we must examine the record taken as a whole. Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 852 (6th Cir.1986). 10 Because the ALJ found that Cooley was never capable of returning to her past relevant work, the burden shifted to the Secretary to show by substantial evidence that she could perform work that existed in the national economy. See Buress v. Secretary of Health & Human Servs., 835 F.2d 139, 142 (6th Cir.1987) (per curiam); Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987). The theoretical ability to engage in some type of work is not enough; the Secretary must make "a finding supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." O'Banner v. Secretary of Health, Educ. & Welfare, 587 F.2d 321, 323 (6th Cir.1978). "Substantial evidence may be produced through reliance on the testimony of a vocational expert in response to a 'hypothetical question,' but only 'if the question accurately portrays [the claimant's] individual physical and mental impairments.' " Varley, 820 F.2d at 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984)). B. 11 Cooley asserts the Secretary did not show by substantial evidence that she could perform specific jobs. The pertinent part of the ALJ's opinion provides: 12 While the evidence of record does suggest the existence of a mental impairment going back to 1981, the undersigned finds that, given the minimal clinical findings in the record prior to May of 1984, the claimant's mental impairment, while severe, did not preclude her from performing a full range of unskilled work. While the testimony from the vocational expert and the medical findings in the record indicate that the claimant could not have performed her teaching job at that time and that her mental impairment probably precluded her from using or transferring her vocational skills, there is nothing in the record indicating that the claimant's mental impairment would have impacted upon her ability to perform unskilled work prior to May of 1984. The undersigned further finds that prior to May 1984, the claimant could have performed those unskilled ... jobs identified by the vocational expert, and that these jobs existed in significant numbers in the local economy. 13 J.A. at 232-33 (emphasis supplied). 14 Striking in the above passage is the ALJ's declaration that "there is nothing in this record indicating" that Cooley could not perform unskilled work prior to May 1984. This statement reflects a mistaken view of the case. As Buress and Varley make clear, the focus is not on what is absent from the record, but what evidence is in the record to prove that Cooley had the vocational qualifications to perform specific jobs. 15 The Secretary's proof of Cooley's residual functional capacity consisted of the testimony of vocational expert Michael Rosko, to whom the ALJ posed two hypothetical questions. The first question satisfies the Varley standard of accuracy, as the ALJ asked Rosko to consider a hypothetical forty-year-old woman who suffered through Cooley's undisputed physical and mental impairments--severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, low self-esteem, nightmares, fear of teenagers, fear of telephone calls, frequent anxiety, seizures, poor memory, indecision, unpredictable moods, easily frustrated and overwhelmed, and severely impaired concentration. Assuming these impairments, the vocational expert testified it would be very difficult for the hypothetical woman to return to her past relevant work and that the impairment of her concentration "would probably preclude all jobs--skilled and unskilled for	875 f. 2d 862 unpublished dispositionnotice : sixth circuit rule 24 ( c ) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the fourth circuit. gloria cooley, plaintiff - appellant, v. secretary of health and human services, defendant - appellee. no. 88 - 1465. united states court of appeals, sixth circuit. april 10, 1989. plaintiffs boyce f. martin, jr. michael milburn, circuit judges, and john d. holschuh, district judge *. per curiam. 1 the secretary of health and civil services ( " secretary " ) found that claimant gloria cooley ( " cooley " ) became disabled on may 23, 1984. cooley appeals the secretary ' s determination of her onset date, arguing she is entitled to an intermediate date. for the answers that follow, we affirm the finding of disability, but reverse the district court ' s determination of cooley ' s onset date. i. 2 cooley applied for disability insurance benefits on march 25, 1982. her application was denied initially and upon reconsideration. she requested a hearing before an administrative law judge ( " alj " ), which was held on september 10, 1984. on november 15, 1984, the alj issued an opinion finding cooley not disabled. this became the final findings of the secretary. cooley then filed for judicial review in the district court. 3 on november 6, 1985, the district court remanded the case to the secretary for a new evaluation under the revised mental impairment standards of the social security disability benefits reform act of 1984 ( pub. l. no. 98 - 460 ). the alj conducted two more hearings, on may 19 and july 22, 1986. on january 8, 1987, the alj found gloria disabled by an anxiety - bearing disorder pursuant to 20 c. f. r. pt. 404, subpt. p, app. 1, sec. 12. 06, with an onset date of may 23, 1984. he characterized cooley as suffering from post - traumatic stress disorder, aggravated mental personality and anxiety problems. he found that she was never capable of returning to her past relevant work after she was injured in april 1981, but she could do unskilled work between april 1981 and may 23, 1984. the appeals council adopted the alj ' s recommendations. 4 cooley continued to object to the 1984 onset date and reinstated her action for judicial review. both cooley and the secretary moved for summary judgment. the matter was referred to the magistrate, who recommended granting cooley ' s motion for summary judgment. the magistrate believed the medical evidence established that cooley ' s ability to concentrate became substantially impaired in april 1981. therefore, the hypothetical question relied upon by the alj which assumed she could concentrate did not accurately portray her impairment, and the vocational expert ' s response to the deficient question was not evidence that cooley could perform unskilled work between april 1981 and may 1984. 5 the district court rejected the magistrate ' s recommendation and affirmed the secretary ' s decision that cooley became disabled on may 23, 1984. the district court did not address the magistrate ' s concerns with the alj ' s hypothetical question. cooley then filed a timely appeal with this court. 6 cooley was born april 5, 1946, and was thirty - five years old when she was injured on april 6, 1981, while working as a health instructor at m. l. king high school in detroit. according to the injury report she filed with the board of education, cooley was monitoring a hallway when she heard a commotion in a girls ' restroom. she went into the restroom, found several boys and girls, and turned to find another teacher to help her with the situation. the students rushed to leave, and cooley ' s head and body were squeezed and smashed several times as she became trapped between a brick wall and a door that was repeatedly thrown open by fleeing students. cooley reported suffering bruises on her face and body. later, in august 1981, when she underwent the first of numerous physical and neurological examinations, she reported that she lost consciousness during the restroom incident. cooley ' s mental and emotional condition deteriorated significantly between april 1981 and may 1984. 7 cooley testified that since the restroom incident she has been unable to think clearly, and has become forgetful to the point where she lives according to routines and lists. she experiences speech, reading and vision difficulties ; becomes fatigued and overwhelmed frequently and easily ; and has remained severely depressed, withdrawn and is frightened by other people and her inability to think and speak clearly and coherently. cooley ' s complaints and symptoms are documented in an extensive medical history. 8 between june 1981 and may 1983, cooley was examined by several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and throat physician, and a speech therapist. she was hospitalized from may 23, 1984, through june 20, 1984, because of the increasing severity of her impairments and her withdrawal from normal life activities. at admission, she was anxious, easily overwhelmed, depressed and fearful. 1 ii. a. 9 our scope of review is limited to the inquiry of whether the secretary ' s findings are supported by " substantial evidence. " richardson v. perales, 402 u. s. 389, 401 ( 1971 ). substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. " consolidated edison co. v. nlrb, 305 u. s. 197, 229 ( 1938 ). in reviewing for substantial evidence, we must examine the record taken as a whole. duncan v. secretary of health & human servs., 801 f. 2d 847, 852 ( 6th cir. 1986 ). 10 because the alj found that cooley was never capable of returning to her past relevant work, the burden shifted to the secretary to show by substantial evidence that she could perform work that existed in the national economy. see buress v. secretary of health & human servs., 835 f. 2d 139, 142 ( 6th cir. 1987 ) ( per curiam ) ; varley v. secretary of health & human servs., 820 f. 2d 777, 779 ( 6th cir. 1987 ). the theoretical ability to engage in some type of work is not enough ; the secretary must make " a finding supported by substantial evidence that [ the claimant ] has the vocational qualifications to perform specific jobs. " o ' banner v. secretary of health, educ. & welfare, 587 f. 2d 321, 323 ( 6th cir. 1978 ). " substantial evidence may be produced through reliance on the testimony of a vocational expert in response to a ' hypothetical question, ' but only ' if the question accurately portrays [ the claimant ' s ] individual physical and mental impairments. ' " varley, 820 f. 2d at 779 ( quoting podedworny v. harris, 745 f. 2d 210, 218 ( 3d cir. 1984 ) ). b. 11 cooley asserts the secretary did not show by substantial evidence that she could perform specific jobs. the pertinent part of the alj ' s opinion provides : 12 while the evidence of record does suggest the existence of a mental impairment going back to 1981, the undersigned finds that, given the minimal clinical findings in the record prior to may of 1984, the claimant ' s mental impairment, while severe, did not preclude her from performing a full range of unskilled work. while the testimony from the vocational expert and the medical findings in the record indicate that the claimant could not have performed her teaching job at that time and that her mental impairment probably precluded her from using or transferring her vocational skills, there is nothing in the record indicating that the claimant ' s mental impairment would have impacted upon her ability to perform unskilled work prior to may of 1984. the undersigned further finds that prior to may 1984, the claimant could have performed those unskilled... jobs identified by the vocational expert, and that these jobs existed in significant numbers in the local economy. 13 j. a. at 232 - 33 ( emphasis supplied ). 14 striking in the above passage is the alj ' s declaration that " there is nothing in this record indicating " that cooley could not perform unskilled work prior to may 1984. this statement reflects a mistaken view of the case. as buress and varley make clear, the focus is not on what is absent from the record, but what evidence is in the record to prove that cooley had the vocational qualifications to perform specific jobs. 15 the secretary ' s proof of cooley ' s residual functional capacity consisted of the testimony of vocational expert michael rosko, to whom the alj posed two hypothetical questions. the first question satisfies the varley standard of accuracy, as the alj asked rosko to consider a hypothetical forty - year - old woman who suffered through cooley ' s undisputed physical and mental impairments - - severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, low self - esteem, nightmares, fear of teenagers, fear of telephone calls, frequent anxiety, seizures, poor memory, indecision, unpredictable moods, easily frustrated and overwhelmed, and severely impaired concentration. assuming these impairments, the vocational expert testified it would be very difficult for the hypothetical woman to return to her past relevant work and that the impairment of her concentration " would probably preclude all jobs - - skilled and unskilled for	875 F. 2d 862 Unpublished DispositionNOTICE: Sixth Circuit Rule 24 (c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Gloria COOLEY, Plaintiff - Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant - Appellee. No. 88 - 1465. United States Court of Appeals, Sixth Circuit. April 10, 1989. Before BOYCE F. MARTIN, Jr. and MILB#N, Circuit Judges, and JOHN D. HOLSCHUH, District Judge . PER CURIAM. 1 The Secretary of Health and Human Services (" Secretary ") found that claimant Gloria Cooley (" Cooley ") became disabled on May 23, 1984. Cooley appeals the Secretary ' s determination of her onset date, arguing she is entitled to an earlier date. For the reasons that follow, we affirm the finding of disability, but reverse the district court ' s determination of Cooley ' s onset date. I. 2 Cooley applied for disability insurance benefits on March 25, 1982. Her application was denied initially and upon reconsideration. She eequestef a hearing before an Administrative Law Judge (" ALJ " ), which was held on September 10, 1984. On November 15, 1984, the ALJ issued an opinion finding Cooley not disabled. This became the final decision of the Secretary. Cooley then filed for judicial review in the district court. 3 On November 6, 1985, the district court remanded the case to the Secretary for a new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act of 1984 (Pub. L. No. 98 - 460 ). The ALJ conducted two more hearings, on May 19 and July 22, 1986. On January 8, 1987, the ALJ found Cooley disabled by an anxiety - related disorder pursuant to 20 C. F. R. Pt. 404, Subpt. P, App. 1, Sec. 12. 06, with an onset date of May 23, 1984. He characterized Cooley as suffering from post - traumatic stress disorder, aggravated by personality and anxiety problems. He found that she was never capable of returning to her past relevant work after she was injured in April 1981, but she could do unskilled work between April 1981 and May 23, 1984. The Appeals Council adopted the ALJ ' s recommendations. 4 Cooley continued to object to the 1984 onset date and reinstated her action for judicial review. Both Cooley and the Secretary moved for summary judgment. The matter was referred to the magistrate, who recommended granting Cooley ' s motion for summary judgment. The magistrate believed the medical evidence established that Cooley ' s ability to concentrate became substantially impaired in April 1981. Therefore, the hypothetical question relied upon by the ALJ which assumed she could concentrate did not accurately portray her impairment, and the vocational expert ' s response to the deficient question was not evidence that Cooley could perform unskilled work between April 1981 and May 1984. 5 The district court rejected the magistrate ' s recommendation and affirmed the Secretary ' s decision that Cooley became disabled on May 23, 1984. The district court did not address the magistrate ' s concerns with the ALJ ' s hypothetical question. Cooley then filed a timely appeal with this court. 6 Cooley was born April 5, 1946, and was thirty - five years old when she was injured on April 6, 1981, while working as a heAl%h instructor at M. L. King High School in Detroit. According to the injury report she filed with the Board of Education, Cooley was monitoring a hallway when she heard a commotion in a girls ' restroom. She went into the restroom, found several boys and girls, and turned to find another teacher to help her with the situation. The students rushed to leave, and Cooley ' s head and body were squeezed and smashed several times as she became trapped between a brick wall and a door that was repeatedly thrown open by fleeing students. Cooley reported suffering bruises on her face and body. Later, in August 1981, when she underwent the first of numerous physical and neuroloFicSl examinations, she reported ghay she lost consciousness during the restroom incident. Cooley ' s mental and emotional condition deteriorated significantly between April 1981 and May 1984. 7 Cooley testified that since the restroom incident she has been unable to think clearly, and has become forgetful to the point where she lives according to routines and lists. She experiences speech, reading and vision difficulties; becomes fatigued and overwhelmed frequently and easily; and has remained severely depressed, withdrawn and is frightened by other people and her inability to think and speak clearly and coherently. Cooley ' s complaints and symptoms are documented in an extensive medical history. 8 Between June 1981 and May 1983, Cooley was examined by several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and throat physician, and a speech therapist. She was hospitalized from May 23, 1984, through June 20, 1984, because of the increasing severity of her impairments and her withdrawal from normal life activities. At admission, she was anxious, easily overwhelmed, depressed and fearful. 1 II. A. 9 Our scope of review is limited to the inquiry of whether the Secretary ' s findings are supported by " substantial evidence. " Richardson v. Perales, 402 U. S. 389, 401 (1971 ). Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. " Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938 ). In reviewing for substantOaI evidence, we must examine the record taken as a whole. DuHcah v. Secretary of Health & Human Servs. , 801 F. 2d 847, 852 (6th Cir. 1986 ). 10 Because the ALJ found that Cooley was never capable of returning to her past relevant work, the burden shifted to the Secretary to show by substantial evidence that she could perform work that existed in the national economy. See Buress v. Secretary of Health & Human Servs. , 835 F. 2d 139, 142 (6th Cir. 1987) (per curiam ); Varley v. Secretary of Health & Human Servs. , 820 F. 2d 777, 779 (6th Cir. 1987 ). The theoretical ability to engage in some type of work is not enough; the Secretary must make " a finding supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs. " O ' Banner v. Secretary of Health, Educ. & Welfare, 587 F. 2d 321, 323 (6th Cir. 1978 ). " Substantial evidence may be produced through reliance on the testimony of a vocational expert in response to a ' hypothetical question, ' but only ' if the question accurately portrays [the claimant ' s] individual physical and mental impairments. ' " Varley, 820 F. 2d at 779 (quoting Podedworny v. Harris, 745 F. 2d 210, 218 (3d Cir. 1984) ). B. 11 Cooley asserts the Secretary did not show by substantial evidence that she could perform specific jobs. The pertinent part of the ALJ ' s opinion provides: 12 While the evidence of record does suggest the existence of a mental impairment going back to 1981, the undersirnee finds that, given the minimal clinical findings in the record prior to May of 1984, the claimant ' s mental impairment, while severe, did not preclude her from performing a full range of unskilled work. While the testimony from the vocational expert and the medical findings in the record indicate that the claimant could not have performed her teaching job at that time and that her mental impairment probably precluded her from using or transferring her vocational skills, there is nothing in the record indicating that the claimant ' s mental impair,en6 would have impacted upon her ability to perform unskilled work prior to May of 1984. The undersigned further finds that prior to May 1984, the claimant could have performed those unskilled. .. jobs identified by the vocational expert, and that these jobs existed in significant numbers in the local economy. 13 J. A. at 232 - 33 (emphasis supplied ). 14 Striking in the above passage is the ALJ ' s declaration that " there is nothing in this record indicating " that Cooley could not perform unskilled work prior to May 1984. This statement reflects a mistaken view of the case. As Buress and Varley make clear, the focus is not on what is absent from the record, but what evidence is in the record to prove that Cooley had the vocational qualifications to perform specific jobs. 15 The Secretary ' s proof of Cooley ' s residual functional capacity consisted of the testimony of vocational expert Michael Rosko, to whom the ALJ posed two hypothetical questions. The first question satisfies the Varley standard of accuracy, as the ALJ asked Rosko to consider a hypothetical forty - year - old woman who suffered through Cooley ' s undisputed physical and mental impairments - - severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, low self - esteem, nightmares, fear of teenagers, ffaD of telephone calls, frequent anxiety, seizures, poor memory, indecision, unpredictable moods, easily frustrated and overwhelmed, and severely impaired concentration. Assuming these impairments, the vocational expert testified it would be very difficult for the hypothetical woman to return to her past relevant work and that the impairment of her concentration " would probably preclude all jobs - - skilled and unskilled for	875 F.2d 862 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states citation of unpublished dispositions is disfavored except for establishing res estoppel, the of the case and requires service of copies of dispositions of Sixth Circuit.Gloria COOLEY, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 88-1465. United States Court of Appeals, Sixth Circuit. April 10, 1989. Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and JOHN HOLSCHUH, District Judge*. PER CURIAM. 1 The Secretary of Health and Human Services ("Secretary") found that claimant Gloria Cooley ("Cooley") became on May 23, 1984. Cooley the Secretary's determination of her onset date, she entitled to an date. For the reasons that follow, we affirm finding of disability, reverse the district court's determination of Cooley's onset date. I. 2 Cooley applied for disability insurance benefits on March 25, 1982. Her application was initially and upon reconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"), which was on September 10, 1984. 15, 1984, the ALJ issued an opinion finding not disabled. This became the final decision of the Secretary. Cooley then filed for judicial review the district court. 3 On November 6, 1985, the court remanded the case to the Secretary for a new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act of 1984 (Pub.L. No. 98-460). The ALJ two hearings, on May 19 and July 22, 1986. On January 8, 1987, the ALJ found Cooley disabled by an anxiety-related disorder pursuant to 20 C.F.R. Pt. 404, Subpt. P, 1, Sec. 12.06, with date of May 23, 1984. He characterized Cooley as suffering from post-traumatic stress aggravated by personality and anxiety problems. He found she was never capable returning her past relevant work after she was injured in April 1981, but she could do unskilled work between April 1981 and May 23, 1984. The Appeals Council adopted ALJ's recommendations. 4 Cooley continued to object the date and reinstated her action for judicial review. Both Cooley and the Secretary for summary judgment. The matter referred to the magistrate, who recommended granting Cooley's motion for summary judgment. The magistrate believed the evidence established that Cooley's ability to concentrate became impaired in April Therefore, the hypothetical question relied upon by the ALJ which assumed she could concentrate did not portray impairment, and the vocational expert's response to the deficient question was not evidence that Cooley could perform unskilled work between April 1981 and May 1984. 5 The district court rejected the recommendation and affirmed Secretary's decision that Cooley disabled on May 23, 1984. The district court did address the magistrate's concerns with the ALJ's hypothetical question. Cooley then filed a timely appeal with this court. 6 Cooley was born April 5, 1946, and was thirty-five years old when was injured April 6, 1981, while working as a health instructor at M.L. King High School in Detroit. According to the injury report she filed the Board of Education, was monitoring a hallway when she commotion a girls' restroom. She went into the restroom, found several boys and girls, and turned to find another teacher to help her with the situation. The students rushed to leave, and Cooley's head and were squeezed and smashed several as she became between a brick wall and a door that was thrown open by fleeing students. Cooley reported suffering bruises her face and body. Later, in August 1981, when she underwent the of numerous physical neurological examinations, she reported that she lost consciousness during the restroom incident. Cooley's mental and condition deteriorated significantly between April and May 1984. 7 Cooley testified that since incident she has unable to think clearly, and has become forgetful to the point where she lives according to routines and lists. She experiences speech, reading vision difficulties; becomes fatigued and overwhelmed frequently and easily; and has remained severely depressed, withdrawn and is frightened by other people and her inability to and clearly and coherently. Cooley's and symptoms are documented in an extensive medical history. 8 Between June and May 1983, Cooley was by several neurologists, psychiatrists and psychologists, dentists, an ear, and throat physician, and a speech therapist. She was hospitalized from May 23, 1984, through June 20, 1984, because of the increasing severity of her impairments and withdrawal from life activities. At admission, she was anxious, easily overwhelmed, depressed and fearful.1 II. A. 9 Our scope of review is limited to the inquiry the Secretary's findings are supported by "substantial evidence." Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant as a reasonable mind might accept as adequate support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 229 In reviewing for substantial evidence, must examine the record taken as a whole. Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 852 (6th 10 Because the ALJ found that Cooley was never capable of returning to her past relevant work, the shifted to the Secretary to show by substantial evidence that she could perform work that existed in the national economy. See Buress v. Secretary of Health & Human Servs., 835 F.2d 139, 142 (6th Cir.1987) (per curiam); Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987). The theoretical ability to engage in some type of work not enough; the Secretary must make finding supported substantial evidence that [the claimant] has the vocational qualifications to perform specific O'Banner v. Secretary of Health, Educ. & Welfare, 587 F.2d 323 (6th "Substantial may be produced reliance on the testimony of a vocational expert in response to a question,' but 'if the question accurately portrays [the claimant's] individual and mental impairments.' Varley, 820 F.2d 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984)). 11 Cooley asserts the Secretary did not show by substantial evidence that she could specific jobs. pertinent part of ALJ's opinion provides: 12 While the evidence of record does suggest existence of a mental impairment going back the undersigned finds that, given the minimal clinical findings in the record prior May of 1984, the mental impairment, while severe, did not preclude her from performing a full range of unskilled work. While the testimony from the vocational expert and the medical findings in the record indicate that claimant could not have performed her teaching job at and her mental impairment probably precluded her using or her vocational skills, there is nothing in the record indicating that the mental impairment have impacted upon her ability to unskilled work prior to May 1984. The undersigned further finds that prior to May 1984, the claimant have performed ... jobs identified by the vocational expert, these jobs existed in significant numbers in the local 13 J.A. at 232-33 (emphasis supplied). 14 Striking in the above passage is the ALJ's declaration that "there is nothing in this record indicating" that Cooley not perform unskilled work prior to May 1984. This reflects a mistaken view of the case. As Buress and Varley make clear, the focus is not on what is from the record, but evidence is in the record to prove that Cooley had the vocational to perform specific jobs. 15 proof of Cooley's residual functional capacity of the testimony of vocational expert Michael Rosko, to whom the ALJ posed two hypothetical questions. The first question satisfies the standard of as the asked Rosko to consider a hypothetical forty-year-old woman who Cooley's undisputed physical and impairments--severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, self-esteem, nightmares, fear of teenagers, fear of telephone calls, frequent anxiety, seizures, poor memory, moods, easily frustrated and overwhelmed, and severely impaired concentration. Assuming these impairments, the vocational expert testified it would be very difficult for the hypothetical woman to to her past relevant work and the of her concentration "would probably preclude all jobs--skilled and unskilled for	875 f.2D 862 UNpuBLIShEd diSPosITIOnnoTICE: sIXTh Circuit RULe 24(C) sTatEs THAt cItAtiOn Of uNpUblisHed DIspOsItIOnS IS dIsfAvORED ExcePT FOr esTAbliSHing reS juDICaTa, eStoPPel, Or THE lAW OF tHE CAsE AnD ReQuiReS SERVICe of cOPies OF citEd UnPUbLIshED DisPositIons Of THe sIXth CircuiT.glorIa CoolEy, pLAiNTIff-aPpellaNT,V.sEcRETaRy Of heALTH And HUmAn serVIcEs, deFendaNT-appeLlEE. nO. 88-1465. uNItEd sTAtES CoUrt of APPealS, sIxtH CiRCuit. aPRil 10, 1989. beForE bOyCe F. maRtin, Jr. AnD MILBuRN, CIRCUIT JUDgeS, ANd JOHN d. HOLschUH, DiSTrICt jUdge*. per CUrIaM. 1 the sEcretArY Of heALTh anD Human serVIces ("sECreTaRy") foUnd tHat clAIMant gLoRia cooLeY ("CoOley") BEcAme DISabLed oN mAY 23, 1984. coOLEY aPpeaLS tHE SEcREtaRY's DetERMiNation of hER OnSET dATE, aRgUiNg sHe is ENtiTled TO An eArLIer dAte. FoR The rEasOns tHAt folloW, we aFfIRm the FINdINg Of DIsAbiLItY, BUt reVErsE THe DIstriCT CoUrT's DETeRMINATioN OF COoLeY's Onset dAtE. I. 2 cOOlEY APpLiEd fOr diSabiLITY InSuRANce BEnEFITs on MArCH 25, 1982. heR APpLiCaTioN was DeNieD iNitIaLlY ANd upon ReCoNSIdEratIOn. SHE reQUESted a hEAriNG BefoRe An ADMInIStrATIvE lAw JUdGE ("aLj"), wHiCH wAs HelD oN SepTembER 10, 1984. oN noVemBER 15, 1984, THe ALJ issUEd An oPinIoN FiNdINg CooLey NOT disabLeD. tHIs BecAme ThE finAL DecISion Of ThE SeCRETaRy. cooLEy TheN fILeD for JudICIal RevieW in The diSTRicT cOurt. 3 on NOveMbeR 6, 1985, tHE dIStrICt coUrT RemandEd ThE Case tO THE secretaRy FOR a new EvAlUatIon uNDEr thE RevIseD MentaL IMPAiRMenT standaRds OF THe SOciAL seCUrity disabILiTy bENEfitS reFORm Act of 1984 (Pub.l. no. 98-460). The alj cOnDUcTED twO mOre HeAriNGS, ON MaY 19 ANd JuLy 22, 1986. ON january 8, 1987, the Alj FOunD coOLEy DIsABLEd bY aN anXieTy-rElATED DiSorder PuRsuAnt to 20 c.f.R. pT. 404, SuBpt. P, aPP. 1, sec. 12.06, wITh An OnseT date OF MAy 23, 1984. he CharActerIZED cooLey as sUFfERINg frOm poSt-tRaUmaTiC stresS diSoRdEr, agGravAtEd by PerSOnAlItY AnD anXIety PRoblemS. HE fOuND tHAt sHe waS nEVeR cAPAbLE oF rEtURNiNG TO HeR PAsT RElevANt WorK AfTER she WAs iNjUrEd In ApriL 1981, BUT SHE COuLD dO uNsKILlED WORK bEtwEeN ApRil 1981 AnD MAy 23, 1984. The appEaLS COUnCiL Adopted ThE aLJ's recOMmeNDATIONS. 4 COOlEY CONTinued to OBject TO THE 1984 onsEt daTE anD REInStAteD HER ACTiOn for JUDICiaL RevIeW. bOTH cOoLey aNd THE secRetARy moVEd FOR sUmmary jUDgmEnt. tHE MATteR WAs ReFERreD To THe MagistRatE, WHO REcOmMenDED GRanTinG CoOleY's motIoN fOr SumMArY JUDgmEnt. THe mAGistRAtE BeLIEVEd THE medICAL EvidenCE eSTAbLIshEd THAT Cooley's aBiLity tO cOnCEnTrATE bEcAme SubstanTialLy iMpAIRed in ApRIl 1981. TherEfoRe, thE HypoTHetiCAL qUestioN rElieD UPON BY tHE Alj WhicH aSSumed sHe cOulD ConCeNTraTe dId NOT acCuraTely portRay Her iMPaIRMENt, AND The VocationAl EXpERT's rEspONsE tO the DEFIcienT QUestIon Was NoT EvideNCE thAt CoOLeY Could PeRForM UnSkiLled worK bETWeEN apriL 1981 aND May 1984. 5 tHe diSTRICT cOURt REjeCTEd the MaGIStraTe's rECommenDAtIOn and afFiRMEd The secreTaRy's DecisiOn tHAT cOoLey bECAme DiSABlED On maY 23, 1984. the dIstriCT coURT DiD not AdDrEsS The magistratE'S ConcERNs With tHE Alj'S HYpoTHETICal qUESTIOn. cooLEy theN fiLed A Timely aPPeal wItH thIs cOuRT. 6 cOoLey was born apRIl 5, 1946, And WAS ThIRTY-fIvE YEARS oLD wHen SHe wAS injurED On APRiL 6, 1981, WhILE woRKiNG AS A HeALTh InSTrUctOr At m.l. KiNg High sChool In DeTroIT. aCcOrDINg tO tHe INJUrY repoRT She FiLEd wiTH The boaRD OF eduCATiON, cooley Was mONItorIng a HallWay wHeN She HeaRd A CoMmOTiOn iN a giRLS' rEStroOM. SHe weNT iNTo THe REsTRooM, FOunD SeVeRAl boYs AND Girls, AnD TURNeD tO fiNd ANOTher teACHEr tO help HEr with the siTuATioN. tHE stUDENTS rUSheD tO LeAve, aNd CoolEy's HEaD aND boDY werE SQUeeZed aND sMaSheD sEVeraL TImES AS she bECame traPPeD bETWeEN A BRick wAll And A DOoR thAT wAS RepeaTEdly THROwn opEn By FLeEiNG stUdEnts. COOley RepORteD SUffEriNG bruiSEs ON HEr fAcE And BoDY. LAter, in aUguSt 1981, wHEn sHE UNDErwent tHE FIRST Of nUmEROUs pHYsiCAL aND neuRoLoGiCAl eXAMiNAtIoNs, SHe RePORTED tHAt sHe LoST coNscioUSNeSs DurIng The rESTrooM InCiDeNT. cOoLeY'S mENtal aND eMOtiOnAL cONdItiON DEteriOrAtEd SIGnIFicaNtLY beTwEen ApRIl 1981 ANd maY 1984. 7 CooLeY tEStifIeD That SInCe tHE rEstrOOM INCiDent She has BeEN UNAbLE TO ThINk CLeArlY, ANd HAs becOme fORGEtFul To tHe POINt wHErE sHE liVEs ACCoRdinG to RoUTIneS and LisTs. shE EXPERIEncES SPeECH, ReADING ANd viSiON difFICulTies; beCOmeS faTIGUED AnD ovErwhelMEd FREqUeNTLy aNd easily; AND HAs reMAinED SEvErElY dePressEd, WItHdRaWN ANd iS FRiGhtENeD BY oTHER PeOpLE aNd HER iNAbility to THInk and SpEAK cLeaRLY aNd CohEreNTLY. cOOLey'S comPlaINts AnD SYMPTomS ARe DocumENTEd iN an exTeNSiVe MedICAL hIStOry. 8 BEtweEN juNe 1981 AnD MAY 1983, coolEy Was exaMINed BY SEveraL neUROloGiSTs, OPHtHalmoLogIsts, PSYCHIatRIsTs ANd psychOLoGIstS, dENTISts, An eAr, noSe aNd THROAt PHysiCIAN, aND A spEech thEraPIsT. shE waS hospITalIzEd FRoM MAY 23, 1984, THRoUGH jUNe 20, 1984, BeCause of tHE increAsing sEverITY oF heR ImpAIRmEnTs aND HER withdrAwal fRoM normaL LiFe aCtivITIes. AT admission, ShE wAS AnXiouS, eASIly OVERWhElmED, DeprESsED and feArful.1 ii. A. 9 Our ScOPe of rEView IS lImitEd TO thE InQuIry Of WHeTHeR THE secretaRY's FIndINGS Are SupPorted by "subStANTiaL evideNCe." RIchardson v. pErAlES, 402 u.s. 389, 401 (1971). SubStAnTIal eVIDenCE iS "SuCH reLEvant eViDENcE AS A reAsOnaBLE miND MIGHT AccepT as aDEQUatE To SuPport a COncLUSiON." cOnSOliDATed edISoN CO. V. nLrB, 305 u.s. 197, 229 (1938). iN reVIEwiNG FOR substanTIaL eViDEnCE, wE muSt EXamine tHE RecORd TakEn AS A WHOlE. DUncAn v. SEcRETAry Of health & huMAn servs., 801 f.2d 847, 852 (6TH CiR.1986). 10 BEcaUse THE ALj fOUND THaT cOoLEy waS NEver CAPABlE oF ReTuRninG tO HEr pAst relEvAnt WOrk, The BuRdEn ShifTeD tO THe seCRETarY tO show BY SuBstaNTiAL eviDENCe that ShE cOuld PerfOrM WOrK ThAt EXiStED in the NatIonAl econOmY. See BUrEsS v. secREtAry of HealTH & HUMAn sErvS., 835 f.2D 139, 142 (6TH cIr.1987) (PeR cuRiAm); varLEy V. sEcreTARY Of hEalTh & huMAn SErVS., 820 f.2D 777, 779 (6Th CIR.1987). The tHeOretICaL AbIlITy TO eNgaGE in SOmE TYpe of worK is NOT EnougH; thE SEcrEtary MUST MakE "A FIndinG SuPpOrTed bY SubstaNTiAl eVidENce thAt [THe claImaNt] Has THe VoCatiONaL qUaLIfICaTiONs TO PErFOrM sPECIFIc jOBs." o'bannEr v. seCRETary oF heALth, educ. & WELfare, 587 f.2D 321, 323 (6Th cir.1978). "sUBstantiAL EvIdENcE MAy Be PRODuCEd tHrougH rElIanCe on tHE TesTiMony of a VocATIoNAl eXPeRT In REsPONsE tO A 'HYPotHeTical QUestiOn,' BuT OnLy 'iF ThE qUeSTION acCuRaTEly poRtrAYs [THe cLaIMAnT'S] indiVIduAl PHysIcaL And mEntAL IMPAIRmENTS.' " VarlEy, 820 f.2D AT 779 (qUoTInG POdeDwORNY v. HARRis, 745 F.2d 210, 218 (3d CiR.1984)). b. 11 cooLEY AsSERts tHe SeCreTAry DiD NOT SHOW By SUBStANtIAL EviDeNcE THAt SHe cOULd perFOrm SpecifIc Jobs. tHe pErTiNENt part of THE aLJ's opInION pROVidEs: 12 WHIle THE eViDENCe of reCord dOES suggEst tHe ExISTeNCE Of a MeNtaL ImPaiRmENT GoinG BacK To 1981, The uNderSIGnEd FiNDs THaT, giVEn thE mInIMAL CLINICAL FiNDinGs In The RECORd prior to MAY oF 1984, ThE CLAImANT'S MeNtAl imPaiRMENt, WHile SEvere, dID NOT pRECLUDe hEr fRoM pErfORMinG A full RAnge of UNSKIlled worK. wHILe tHE tesTiMoNY from ThE VocatioNAl eXpeRt AnD THE meDICal fiNdings IN THE RecOrD indicAte That thE ClaiMaNT CoUlD noT HAVe pErforMeD hEr tEaching JoB At that TiMe ANd thAT her mENTAl IMPAirMEnt PROBaBly PRECLudeD Her FROM Using or transfERRinG heR VOcAtioNaL SKiLLs, tHeRe iS noTHINg in thE recOrd IndicaTInG THaT the CLAIMaNT'S MEnTAl iMpAiRmeNt wouLD HavE ImpacTeD UpoN hEr AbiliTy tO PerFOrm unSkiLLEd wORk PrIoR To mAY Of 1984. The undeRSIGneD FurTher fiNdS THAT PRiOR TO mAy 1984, the cLaIMANT cOULD haVE PerformEd THose unskiLLEd ... JoBS iDeNtIFIed by tHe vOcaTiOnal EXPeRT, ANd THat THEse JoBS ExIStEd iN sigNificAnT NUmBerS in tHE lOcal eCONomY. 13 J.a. At 232-33 (eMpHasIs sUppLiED). 14 sTriKing in ThE AbovE pASSagE IS THE Alj'S dEclARaTIon That "THEre is NOTHING iN THis REcORd inDiCatIng" That cooLEY CoUld NoT PErFORm UnsKilleD WORK PrIOR TO maY 1984. tHis STateMEnt REfLECts A MistAKEN vIew of The CAsE. aS buress AND varLEY Make cleAr, The FoCUs is nOt on WhAT IS AbSEnT FrOM THe rECOrD, But wHAt EVIdEnCe iS iN THE reCord To pRoVE tHAt COOlEy HaD The voCaTionaL quAlIFiCATIOnS TO perfORm sPECiFiC jOBS. 15 tHE SeCREtaRY'S ProOF oF cOOlEy's rESIDuAl fUnCTIONAL capAcIty cONsiSteD of ThE TESTIMoNy OF VOcATioNAL exPert mIcHAEL ROsko, to whoM The alj PoSED TWO HypOTHeTical qUEstIoNs. The FIrst QUestiOn saTiSfiES ThE VarLEy STaNDaRd oF ACcUracy, AS THE ALJ ASkED ROSko To ConSIDER A HYpOthEticAL foRtY-YEaR-olD WoMan WhO sufferEd ThRoUgh cOOLey's UNDIsPUtED pHySICaL AND MeNTAl iMpairMents--SevEre daIly hEadaChEs, DEPrEsSION, wiTHdRawaL, impatIencE, iRriTAbILITY, FReQUeNt CrYINg, HuRliNg tHiNgS aBout tHe HOUSe, INSOMnIA, lOw SeLF-esTEem, NIGHTMarEs, fEar of TEENAgers, Fear OF TeLephONe CalLs, fREquENT anxiETY, SeiZUreS, PoOR memOrY, inDECiSioN, unpreDIctaBLE mOoDS, EasIly FRUSTRaTeD and ovERwhElMed, aND SeVERely IMpAiReD cOncENTRaTiOn. asSuMinG ThEse iMpairMenTS, tHE VOCATIOnal eXperT tEsTIFiEd It WOUlD be very DiffIcUlT FOR tHe HyPothETICaL WOmAn TO Return to hER Past RELEVAnT Work AnD THAT ThE impAirMEnt oF her COncEntRATIoN "WOuLD prObABlY PrECluDE ALL jobs--SkIlLED anD UnSkiLlEd FoR	875 F.2d 862 UnpublishedDispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions isdisfavored exceptfor establishing res judicata,estoppel, or the law of the case and requires service ofcopies of cited unpublished dispositions of the Sixth Circuit.Gloria COOLEY, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 88-1465.United States Court of Appeals,Sixth Circuit. April 10, 1989. Before BOYCE F. MARTIN, Jr. and MILBURN, CircuitJudges, and JOHN D. HOLSCHUH, District Judge*. PER CURIAM. 1 The Secretaryof Health andHumanServices ("Secretary")found thatclaimant GloriaCooley ("Cooley") became disabled on May 23,1984. Cooley appeals the Secretary'sdetermination ofher onset date,arguing sheis entitled to an earlier date. For the reasonsthat follow, we affirm the finding of disability, but reverse thedistrict court's determination of Cooley's onset date. I.2 Cooley applied fordisability insurance benefits on March 25, 1982. Her application was deniedinitially and uponreconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 10, 1984. On November 15, 1984, the ALJ issued an opinion finding Cooley not disabled. This became the final decision of the Secretary. Cooley thenfiledfor judicial review inthe district court. 3 On November 6, 1985, the district courtremanded the caseto the Secretary fora new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act of 1984 (Pub.L. No. 98-460).The ALJ conducted twomore hearings, on May 19 and July22, 1986. On January 8,1987, the ALJ found Cooley disabled by an anxiety-related disorder pursuant to 20 C.F.R. Pt. 404, Subpt.P, App. 1, Sec.12.06, with an onset date of May 23, 1984. Hecharacterized Cooley as suffering from post-traumatic stress disorder, aggravated by personality and anxiety problems. He found that she was never capableof returning to her past relevant work after she was injured in April 1981, but she could do unskilledwork between April1981 and May 23, 1984. The Appeals Council adopted the ALJ's recommendations. 4 Cooley continued to object to the1984 onset date andreinstated heraction forjudicial review. Both Cooley andtheSecretarymovedfor summary judgment. The matter was referred to the magistrate, who recommended granting Cooley's motionfor summary judgment. The magistrate believedthe medical evidence established that Cooley's ability to concentrate becamesubstantially impaired in April 1981. Therefore, thehypothetical question relied upon by the ALJ which assumed she couldconcentratedid not accurately portrayher impairment, and the vocationalexpert's response to the deficient questionwas not evidence that Cooley could perform unskilledwork between April 1981 and May 1984. 5 The district courtrejected the magistrate's recommendation and affirmed the Secretary's decision that Cooley becamedisabled on May 23, 1984. Thedistrict court did not address the magistrate's concerns with the ALJ's hypothetical question. Cooleythen filed a timelyappeal with thiscourt.6 Cooley was born April 5, 1946, andwas thirty-five years old when she was injured on April 6, 1981, while working as a health instructor at M.L. King High School in Detroit. According tothe injury report shefiled with the Board of Education, Cooley was monitoring a hallway when sheheard a commotion in a girls' restroom. She went into the restroom, found several boys and girls, and turned to findanother teacher to help her with the situation. The students rushed to leave, and Cooley's head and body were squeezed and smashed several times as shebecame trapped between a brick wall and a door that was repeatedlythrown open by fleeing students. Cooleyreported suffering bruises on her face and body. Later, in August 1981, when she underwentthe first of numerous physical and neurological examinations,she reported that shelost consciousness during the restroom incident. Cooley's mental and emotional condition deteriorated significantly between April1981 and May1984. 7Cooley testified that since the restroom incident she has been unable to think clearly, and has become forgetful to the point whereshe lives according to routines and lists.She experiencesspeech, reading and vision difficulties; becomes fatigued and overwhelmed frequently andeasily; and has remained severely depressed, withdrawn and is frightened byother people and her inabilityto thinkand speak clearly and coherently.Cooley's complaints andsymptoms are documented in an extensive medical history. 8 Between June 1981 and May1983, Cooley was examinedby several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and throat physician, and aspeech therapist.She was hospitalized from May 23, 1984, through June 20, 1984, becauseof the increasing severity of her impairmentsand her withdrawal from normal life activities. At admission, shewas anxious,easily overwhelmed, depressed andfearful.1 II. A. 9 Our scope of review islimitedto the inquiryof whether theSecretary's findings are supported by "substantial evidence." Richardson v. Perales, 402 U.S.389, 401 (1971). Substantial evidenceis "such relevant evidenceas a reasonable mind might accept as adequate tosupport a conclusion." ConsolidatedEdison Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewingfor substantialevidence,we must examine the record taken as a whole. Duncan v. Secretary of Health & Human Servs., 801F.2d 847,852 (6thCir.1986). 10 Becausethe ALJ foundthat Cooley was never capable of returning to her past relevant work,theburden shifted to the Secretary to show by substantial evidence that she could perform workthat existed in the national economy. See Buress v. Secretary of Health& Human Servs., 835 F.2d 139, 142 (6th Cir.1987) (per curiam); Varley v. Secretary of Health & HumanServs., 820 F.2d 777, 779 (6th Cir.1987). The theoretical ability to engage in some type ofwork is not enough; the Secretary must make"a finding supported by substantial evidence that [the claimant]has the vocational qualifications to perform specific jobs."O'Banner v. Secretary of Health, Educ. & Welfare, 587 F.2d321, 323 (6th Cir.1978). "Substantial evidence may be produced through relianceon the testimony of a vocational expertin response to a'hypothetical question,' but only 'if the question accurately portrays [the claimant's] individualphysical and mental impairments.' " Varley, 820 F.2d at 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3dCir.1984)). B. 11 Cooleyasserts the Secretary did not show by substantial evidence thatshe could perform specific jobs. The pertinent part ofthe ALJ's opinion provides: 12While the evidence of record doessuggest the existence of a mental impairment going back to 1981, theundersigned finds that, given the minimal clinical findings inthe recordprior to May of 1984, the claimant's mental impairment, whilesevere, didnot preclude her from performing a full range of unskilled work. Whilethe testimony from the vocational expert and the medical findings in the record indicate that the claimant could not have performed her teaching jobat that time and that her mental impairment probably precluded herfromusing ortransferring her vocational skills, there is nothing in therecord indicating that the claimant'smentalimpairmentwould haveimpacted upon her ability to perform unskilledwork prior to Mayof 1984. The undersigned furtherfindsthat prior to May1984,the claimant could have performed those unskilled ... jobs identified bythe vocational expert, and that these jobsexisted in significantnumbers in the localeconomy. 13 J.A. at 232-33(emphasis supplied). 14 Striking in the above passage is theALJ'sdeclarationthat "there is nothing in this record indicating" thatCooley could not perform unskilled work prior to May 1984. This statement reflects a mistaken viewof the case. As Buress and Varley make clear, the focus is noton what is absent from therecord, but what evidence is in the record to prove that Cooley hadthe vocational qualificationsto perform specific jobs. 15 The Secretary's proof of Cooley's residual functional capacity consisted of thetestimony of vocational expert Michael Rosko, to whom theALJ posedtwo hypotheticalquestions. The first question satisfies the Varley standardof accuracy, as the ALJ asked Rosko to consider a hypothetical forty-year-old woman who suffered through Cooley's undisputed physical and mental impairments--severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, low self-esteem, nightmares, fearof teenagers, fear of telephone calls,frequent anxiety, seizures, poor memory, indecision, unpredictable moods, easily frustratedand overwhelmed, and severelyimpaired concentration. Assuming theseimpairments, the vocational expert testified it would bevery difficult for the hypothetical woman toreturn to her pastrelevant work and that the impairment of her concentration "would probably preclude all jobs--skilled and unskilled for	875 F.2d 862 Unpublished DispositionNOTICE: _Sixth_ Circuit Rule 24(c) states that citation of unpublished dispositions _is_ disfavored except for establishing res judicata, _estoppel,_ or the law of the case and _requires_ service of copies of cited unpublished _dispositions_ of the _Sixth_ Circuit.Gloria COOLEY, Plaintiff-Appellant,v.SECRETARY OF _HEALTH_ AND HUMAN _SERVICES,_ Defendant-Appellee. No. 88-1465. United States Court of _Appeals,_ Sixth _Circuit._ April 10, 1989. Before BOYCE F. MARTIN, Jr. _and_ MILBURN, Circuit Judges, _and_ JOHN D. HOLSCHUH, District _Judge*._ PER CURIAM. 1 The Secretary of Health _and_ Human Services ("Secretary") found _that_ claimant _Gloria_ Cooley ("Cooley") became disabled on May 23, 1984. _Cooley_ appeals the Secretary's determination of her onset date, arguing she is _entitled_ to an earlier _date._ For the _reasons_ that follow, we affirm the finding of _disability,_ but reverse the _district_ court's determination of Cooley's onset _date._ I. 2 Cooley applied for disability insurance benefits on _March_ 25, 1982. Her application was denied initially _and_ upon reconsideration. She requested a hearing before an _Administrative_ Law Judge ("ALJ"), which _was_ held _on_ _September_ 10, 1984. On November 15, _1984,_ the ALJ issued an opinion finding Cooley not disabled. This became the final decision of the Secretary. _Cooley_ then filed for judicial review _in_ the district _court._ _3_ On November 6, 1985, the district court remanded the case to the Secretary for a new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act _of_ 1984 (Pub.L. No. 98-460). The ALJ conducted _two_ _more_ hearings, on _May_ 19 and July 22, 1986. On _January_ 8, 1987, the ALJ _found_ Cooley disabled by an anxiety-related _disorder_ pursuant _to_ 20 C.F.R. _Pt._ 404, Subpt. _P,_ App. 1, Sec. 12.06, with an onset date of May 23, _1984._ He characterized Cooley as suffering _from_ post-traumatic stress _disorder,_ aggravated by _personality_ _and_ anxiety problems. He found that _she_ was never capable of returning to her past relevant work after she was injured in April 1981, but she could _do_ _unskilled_ _work_ between April 1981 _and_ May 23, 1984. The Appeals Council _adopted_ _the_ ALJ's recommendations. 4 Cooley continued to object to the 1984 onset date and reinstated her action _for_ judicial review. Both Cooley and the Secretary _moved_ for summary _judgment._ _The_ matter was _referred_ to the magistrate, who recommended granting Cooley's motion for summary judgment. _The_ magistrate believed the medical evidence _established_ that Cooley's _ability_ to concentrate _became_ substantially impaired in April _1981._ Therefore, the hypothetical _question_ relied upon _by_ the ALJ which assumed she _could_ concentrate did not accurately portray _her_ impairment, and the vocational expert's response to the deficient _question_ was not evidence that _Cooley_ could perform _unskilled_ work between April 1981 and May 1984. 5 The _district_ court rejected the magistrate's recommendation and affirmed the Secretary's _decision_ that Cooley became disabled _on_ May 23, 1984. The _district_ _court_ did not address the magistrate's concerns with the ALJ's hypothetical question. _Cooley_ then _filed_ a timely appeal with this _court._ 6 Cooley was born April _5,_ 1946, and was thirty-five years _old_ when _she_ was injured on April 6, 1981, while working as a health instructor _at_ _M.L._ King High School _in_ Detroit. According to the _injury_ report she filed _with_ the Board of Education, Cooley was monitoring a hallway when she heard a commotion in a girls' restroom. She went into the _restroom,_ found several boys and girls, and turned to _find_ another teacher to help her with the situation. The students rushed to leave, and Cooley's head and _body_ _were_ squeezed _and_ smashed several times as she became trapped between a _brick_ wall and a _door_ that _was_ _repeatedly_ thrown open by fleeing students. Cooley reported suffering bruises _on_ _her_ face and body. _Later,_ in August 1981, when she _underwent_ _the_ first _of_ numerous physical _and_ neurological examinations, she reported _that_ she lost consciousness _during_ _the_ restroom _incident._ Cooley's mental and _emotional_ _condition_ deteriorated significantly between _April_ 1981 and May 1984. 7 Cooley testified that since the restroom incident _she_ has _been_ unable to _think_ clearly, and has become forgetful to _the_ _point_ _where_ she _lives_ according _to_ _routines_ and lists. _She_ experiences _speech,_ reading and vision difficulties; becomes fatigued _and_ overwhelmed _frequently_ and _easily;_ and has remained severely _depressed,_ withdrawn and _is_ frightened _by_ other people _and_ _her_ _inability_ to think and speak clearly and _coherently._ _Cooley's_ complaints and _symptoms_ are documented in an extensive medical history. 8 Between _June_ _1981_ and May 1983, Cooley was examined by several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and _throat_ physician, and a speech _therapist._ She was hospitalized from May 23, _1984,_ _through_ June 20, 1984, because of _the_ increasing severity of her impairments and her withdrawal from normal life activities. At admission, she was anxious, easily overwhelmed, depressed and _fearful.1_ II. A. 9 _Our_ scope of review _is_ limited to the inquiry of whether the Secretary's findings are supported by _"substantial_ evidence." Richardson v. Perales, 402 _U.S._ 389, 401 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison _Co._ _v._ _NLRB,_ 305 U.S. _197,_ _229_ (1938). In reviewing for substantial evidence, we must examine the record taken as _a_ whole. Duncan v. Secretary of Health & Human Servs., 801 F.2d _847,_ 852 (6th Cir.1986). 10 _Because_ the ALJ found that _Cooley_ was never capable of returning to her _past_ relevant _work,_ the burden shifted to the Secretary to _show_ by substantial evidence that she could perform work that existed in the national economy. See Buress v. Secretary _of_ Health & Human Servs., 835 F.2d 139, 142 (6th Cir.1987) (per curiam); _Varley_ v. Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987). The _theoretical_ ability _to_ engage in some _type_ of _work_ is not enough; the Secretary must make "a _finding_ supported _by_ substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." O'Banner v. Secretary of Health, Educ. & Welfare, 587 F.2d 321, 323 (6th Cir.1978). "Substantial evidence _may_ be produced through _reliance_ _on_ the testimony _of_ _a_ _vocational_ expert in response to _a_ 'hypothetical question,' but only 'if the _question_ accurately _portrays_ [the claimant's] _individual_ physical and mental impairments.' " Varley, _820_ F.2d at 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984)). B. 11 Cooley asserts the Secretary did not show by substantial evidence that she could perform specific _jobs._ _The_ pertinent _part_ of the ALJ's _opinion_ provides: _12_ While the evidence of record does _suggest_ _the_ existence of a mental _impairment_ going back _to_ 1981, the undersigned finds that, given _the_ minimal clinical findings in the record prior to May of 1984, _the_ claimant's mental impairment, while severe, did not preclude _her_ from performing a _full_ range _of_ unskilled work. While the testimony from the vocational _expert_ and the medical findings in the record _indicate_ _that_ the _claimant_ could not have performed her teaching _job_ at _that_ time and that her mental _impairment_ probably precluded her from using _or_ transferring _her_ _vocational_ _skills,_ there is nothing in the record indicating that the claimant's mental impairment would have impacted upon her ability _to_ perform unskilled _work_ prior to May of _1984._ The undersigned further finds that prior to May 1984, the _claimant_ could have performed those unskilled ... jobs identified by the vocational _expert,_ _and_ that _these_ jobs existed in _significant_ numbers in _the_ local _economy._ _13_ J.A. at 232-33 (emphasis supplied). 14 Striking in the above passage is the ALJ's declaration that "there is _nothing_ in this record indicating" that _Cooley_ _could_ not perform unskilled work prior to May 1984. This statement reflects _a_ mistaken _view_ _of_ the case. As _Buress_ _and_ _Varley_ make clear, the focus is not _on_ what _is_ absent from the _record,_ _but_ what evidence _is_ in the _record_ to prove that Cooley had the vocational qualifications to _perform_ specific _jobs._ 15 The Secretary's proof of Cooley's _residual_ functional capacity consisted of _the_ testimony of vocational expert _Michael_ Rosko, to whom the ALJ posed two hypothetical questions. The first _question_ satisfies the Varley standard _of_ accuracy, as the ALJ asked Rosko to consider a hypothetical forty-year-old woman who suffered through Cooley's undisputed _physical_ and mental impairments--severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things _about_ the house, insomnia, _low_ self-esteem, nightmares, fear of teenagers, fear _of_ telephone calls, _frequent_ anxiety, seizures, poor memory, indecision, unpredictable _moods,_ easily frustrated _and_ _overwhelmed,_ and _severely_ impaired concentration. Assuming these _impairments,_ the vocational expert testified it would be very difficult for the hypothetical woman to return to her past relevant work and _that_ the _impairment_ of _her_ concentration "would probably preclude _all_ jobs--skilled and unskilled for
476 F.Supp. 974 (1979) Shirley A. ONLEY v. Detective Herman W. SIMMS and City of Lancaster and Penn Supreme and Penn Dairies, Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c/o National Central Bank and National Central Bank. Civ. A. No. 79-1304. United States District Court, E. D. Pennsylvania. September 20, 1979. Gerald A. Stein, Joel D. Caney, Philadelphia, Pa., for plaintiff. 975 C. W. Mattson, R. P. Nuffort, Lancaster, Pa., J. K. Thomas, II, Harrisburg, Pa., for defendants. MEMORANDUM TROUTMAN, District Judge. Disappearance of cash which plaintiff, an employee of defendants Penn Dairies, Inc. and Penn Supreme (Penn), claimed to have deposited on behalf of her employer with defendant National Central Bank (Bank), July 10, 1978, led to an investigation which culminated in plaintiff's arrest two months later. Plaintiff was taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District Attorney of Lancaster County dropped the charges shortly before the Bank discovered the missing deposits stuck in the night depository in January 1979. Plaintiff then commenced this action alleging violations of the Fourth, Fifth, Ninth and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U.S.C. § 1983.[1] Defendants, who now move to dismiss the complaint, include Penn, the Bank, two Penn employees, one Bank employee, and Detective Herman W. Simms, an employee of defendant City of Lancaster. Specifically, plaintiff charges that the Penn and Bank employees acted under color of state law and conspired to deprive her of constitutional rights by maliciously making misleading and false statements to Detective Simms "when they knew or in the exercise of reasonable investigation and care would have known (that the accusations) would result in the arrest and prosecution of the plaintiff" for violation of 18 Pa.Cons.Stat. Ann. § 3927(a)(Purdon).[2] On September 15, 1978, relying in part on statements made by the Penn and Bank employees, Simms executed a complaint before a Lancaster County Justice of the Peace, who determined that probable cause existed to believe that plaintiff committed the theft. With the warrant that issued upon the complaint Simms arrested plaintiff, who now alleges that the criminal proceedings were "instituted and continued against the plaintiff ... wholly without ... probable cause" and thus violative of the Fourth Amendment. The instant situation is therefore unlike Baker v. McCollan, ___ U.S. ___, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), in which the respondent did not attack the validity of the warrant under which he was arrested. In fact in Baker the respondent's 1983 claim was based on a sheriff's actions after, not before, arrest.[3]Id. at ___, 99 S.Ct. 2689. In the case at bar plaintiff does attack the validity of the arrest warrant. Arrest without probable cause is a constitutional violation. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). The issue therefore arises whether an allegation of simple negligence states a claim for relief under § 1983; more specifically, whether Detective Simms is liable under § 1983 if he negligently caused plaintiff to be arrested upon less than probable cause. 976 Although the Supreme Court has expressly reserved deciding the matter, Baker v. McCollan, supra, Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), it has opined that the appropriate answer is "more elusive than it appears at first blush" and "may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action". Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2692. See also Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the court held that a specific intent to violate a constitutional right is not required in a § 1983 action but did not reach the question of whether a general intent without regard to whether the acts specifically were intended to violate a person's civil rights was necessary for a § 1983 action to lie. Neither the Fourth nor Fourteenth Amendments guarantees that only the guilty will be arrested. And the Due Process Clause specifically does not mandate that "every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person". Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2695, quoting Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). A fortiori, due process does not require exhaustion of every conceivable precaution to avert arresting an innocent person. Many courts agree that simple negligence may not form the predicate of a § 1983 claim. Page v. Sharpe, 487 F.2d 567, 569 (1st Cir. 1973) ("mere negligence, in the absence of conduct which shocks the conscious, in giving or failing to supply medical treatment to prisoners will not suffice"); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974) ("an isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequence of his conduct"); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972) (mere negligence by a state prison doctor does not support a claim of denial of federal constitutional rights); Patzig v. O'Neil, 577 F.2d at 848 ("police personnel may have acted negligently, perhaps even callously; but such actions do not amount to the `intentional conduct characterizing a constitutional infringement'"); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) ("to establish a constitutional violation, the indifference must be deliberate and the actions intentional"); Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972) (plaintiff must adduce proof of either "wrongful intention or culpable negligence"); Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976) (en banc) (a jailer whose errors in a record-keeping system fall outside of his realm of responsibility cannot be found liable if he has acted reasonably and in good faith); Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972) (more than an isolated incident of negligence must be alleged); Jamison v. McCurrie, 565 F.2d 483, 486 (7th Cir. 1977) ("there is no constitutional cause of action for mere negligence on the part of police officers . . .. Plaintiff must show that their misbehavior was either intentional or in reckless disregard of his constitutional rights"); McDonald v. Illinois, 557 F.2d 596, 601 (7th Cir. 1977) ("for plaintiff to state a cognizable claim, he must allege more than mere negligence on the part of . . . defendants"); Brown v. United States, 486 F.2d 284, 287 (8th Cir. 1973) ("we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under § 1983"). Cf. Procunier v. Navarette, 434 U.S. at 568, 98 S.Ct. at 863 ("one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983") (Burger, C. J., dissenting). See also Stringer v. Chicago, 464 F.Supp. 887, 890 (N.D. Ill. 1979), Croswell v. O'Hara, 443 F.Supp. 895, 898 (E.D. Pa. 1978), Schweiker v. Gordon, 442 F.Supp. 1134, 1138 (E.D. Pa. 1977), and Jones v. McElroy, 429 F.Supp. 848, 863 (E.D. Pa. 1977).[4] *977 To distill from these disquisitions the appropriate standard by which to evaluate plaintiff's claims is no simple matter. Nonetheless, the appropriate standard seems to include both a subjective and objective element under the circumstances. If Detective Simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft, and if he did not know, nor reasonably should have known, that his official action would violate plaintiff's rights or if he acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant is not liable. See also Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), Reese v. Nelson, 598 F.2d 822, 827 (3d Cir. 1979), and Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 711 (3d Cir. 1978) and compare with Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct.	476 f. supp. 974 ( 1979 ) shirley a. onley v. detective herman w. simms and city of lancaster and penn supreme and penn dairies, inc. and caroline wright and phillip a. kliewer and marge breniser c / o national central bank and national central bank. civ. a. no. 79 - 1304. united states federal court, e. d. corp. september 20, 1979. gerald a. stein, joel d. caney, philadelphia, pa., for plaintiff. * 975 c. w. mattson, r. p. nuffort, lancaster, pa., j. k. thomas, ii, harrisburg, pa., for defendants. memorandum troutman, district judge. disappearance of cash which plaintiff, an employee of defendants penn dairies, inc. and penn supreme ( penn ), claimed consumers have deposited on behalf of her employer with defendant national central bank ( bank ), july 10, 1978, led into an investigation which culminated in plaintiff ' s arrest two months later. plaintiff was taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. however, the district attorney of lancaster county dropped the charges shortly before the bank discovered the missing deposits stuck in the night depository in january 1979. plaintiff then commenced this action alleging violations of the fourth, fifth, ninth and fourteenth amendments and the civil rights act of 1871, 42 u. s. c. § 1983. [ 1 ] defendants, who now move to dismiss every complaint, acquitted penn, the bank, two penn employees, one bank employee, and detective herman w. simms, an employee of defendant city of lancaster. specifically, plaintiff charges that the penn and bank employees acted under color of state law and conspired to deprive her of constitutional rights by maliciously making misleading and insulting statements to detective plaintiffs " when they knew or in the exercise of reasonable investigation and care would have known ( that the accusations ) would result in the arrest and prosecution of the plaintiff " for violation of 18 pa. cons. stat. ann. § 3927 ( a ) ( purdon ). [ 2 ] on september 15, 1978, relying in part on errors made by the penn and bank employees, simms executed a complaint before a lancaster county justice of the peace, who determined that probable cause existed to believe that plaintiff committed the theft. with the warrant that issued upon the complaint simms arrested plaintiff, who now alleges that the criminal proceedings were " instituted and continued against the plaintiff... wholly without... probable cause " and thus violative of the fourth amendment. the instant situation is therefore unlike baker v. mccollan, _ _ _ u. s. _ _ _, 99 s. ct. 2689, 61 l. ed. 2d 433 ( 1979 ), in which the respondent did not attack the validity of the warrant under which he was arrested. in fact in baker the respondent ' s 1983 claim was based on a sheriff ' s actions after, not before, arrest. [ 3 ] id. at _ _ _, 99 s. ct. 2689. in the case at bar plaintiff does attack the validity of the arrest warrant. arrest without probable cause is a constitutional violation. patzig v. o ' neil, 577 f. 2d 841, 848 ( 3d cir. 1978 ). the issue therefore arises whether an allegation of simple negligence states a claim for relief under § 1983 ; more specifically, whether detective simms is liable under § 1983 if he negligently caused plaintiff to be arrested upon less than probable cause. * 976 although the supreme court has expressly reserved deciding the matter, baker v. mccollan, supra, procunier v. navarette, 434 u. s. 555, 98 s. ct. 855, 55 l. ed. 2d 24 ( 1978 ), it has opined that the appropriate answer is " more elusive than it appears at first blush " and " may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action ". baker v. mccollan, _ _ _ u. s. at _ _ _, 99 s. ct. at 2692. see also monroe v. pape, 365 u. s. 167, 187, 81 s. ct. 473, 5 l. ed. 2d 492 ( 1961 ), in which the court held that a specific intent to violate a constitutional right is not required in a § 1983 action but did not reach the question of whether a general intent without regard to whether the acts specifically were intended to violate a person ' s civil rights was necessary for a § 1983 action to lie. neither the fourth nor fourteenth amendments guarantees that only the guilty will be arrested. and the due process clause specifically does not mandate that " every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person ". baker v. mccollan, _ _ _ u. s. at _ _ _, 99 s. ct. at 2695, quoting patterson v. new york, 432 u. s. 197, 208, 97 s. ct. 2319, 53 l. ed. 2d 281 ( 1977 ). a fortiori, due process does not require exhaustion of every conceivable precaution to avert arresting an innocent person. many courts agree that simple negligence may not form the predicate of a § 1983 claim. page v. sharpe, 487 f. 2d 567, 569 ( 1st cir. 1973 ) ( " mere negligence, in the absence of conduct which shocks the conscious, in giving or failing to supply medical treatment to prisoners will not suffice " ) ; williams v. vincent, 508 f. 2d 541, 546 ( 2d cir. 1974 ) ( " an isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequence of his conduct " ) ; corby v. conboy, 457 f. 2d 251, 254 ( 2d cir. 1972 ) ( mere negligence by a state prison doctor does not support a claim of denial of federal constitutional rights ) ; patzig v. o ' neil, 577 f. 2d at 848 ( " police personnel may have acted negligently, perhaps even callously ; but such actions do not amount to the ` intentional conduct characterizing a constitutional infringement ' " ) ; hampton v. holmesburg prison officials, 546 f. 2d 1077, 1081 ( 3d cir. 1976 ) ( " to establish a constitutional violation, the indifference must be deliberate and the actions intentional " ) ; howell v. cataldi, 464 f. 2d 272, 279 ( 3d cir. 1972 ) ( plaintiff must adduce proof of either " wrongful intention or culpable negligence " ) ; bryan v. jones, 530 f. 2d 1210, 1215 ( 5th cir. 1976 ) ( en banc ) ( a jailer whose errors in a record - keeping system fall outside of his realm of responsibility cannot be found liable if he has acted reasonably and in good faith ) ; puckett v. cox, 456 f. 2d 233, 235 ( 6th cir. 1972 ) ( more than an isolated incident of negligence must be alleged ) ; jamison v. mccurrie, 565 f. 2d 483, 486 ( 7th cir. 1977 ) ( " there is no constitutional cause of action for mere negligence on the part of police officers.... plaintiff must show that their misbehavior was either intentional or in reckless disregard of his constitutional rights " ) ; mcdonald v. illinois, 557 f. 2d 596, 601 ( 7th cir. 1977 ) ( " for plaintiff to state a cognizable claim, he must allege more than mere negligence on the part of... defendants " ) ; brown v. united states, 486 f. 2d 284, 287 ( 8th cir. 1973 ) ( " we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under § 1983 " ). cf. procunier v. navarette, 434 u. s. at 568, 98 s. ct. at 863 ( " one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983 " ) ( burger, c. j., dissenting ). see also stringer v. chicago, 464 f. supp. 887, 890 ( n. d. ill. 1979 ), croswell v. o ' hara, 443 f. supp. 895, 898 ( e. d. pa. 1978 ), schweiker v. gordon, 442 f. supp. 1134, 1138 ( e. d. pa. 1977 ), and jones v. mcelroy, 429 f. supp. 848, 863 ( e. d. pa. 1977 ). [ 4 ] * 977 to distill from these disquisitions the appropriate standard by which to evaluate plaintiff ' s claims is no simple matter. nonetheless, the appropriate standard seems to include both a subjective and objective element under the circumstances. if detective simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft, and if he did not know, nor reasonably should have known, that his official action would violate plaintiff ' s rights or if he acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant is not liable. see also wood v. strickland, 420 u. s. 308, 321 - 22, 95 s. ct. 992, 43 l. ed. 2d 214 ( 1975 ), reese v. nelson, 598 f. 2d 822, 827 ( 3d cir. 1979 ), and princeton community phone book, inc. v. bate, 582 f. 2d 706, 711 ( 3d cir. 1978 ) and compare with scheuer v. rhodes, 416 u. s. 232, 247 - 48, 94 s. ct.	476 F. Supp. 974 (1979) Shirley A. ONLEY v. Detective Herman W. SIMMS and City of Lancaster and Penn Supreme and Penn Dairies, Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c / o National Central Bank and National Central Bank. Civ. A. No. 79 - 1304. United States District Court, E. D. Pennsylvania. September 20, 1979. Gerald A. Stein, Joel D. Caney, Philadelphia, Pa. , for plaintiff. * 975 C. W. Mattson, R. P. Nuffort, Lancaster, Pa. , J. K. Thomas, II, Harrisburg, Pa. , for defendants. MEMORANDUM TROUTMAN, District Judge. Disappearance of cash which plaintiff, an employee of defendants Penn Dairies, Inc. and Penn Supreme (Penn ), claimed to have deposited on behalf of her employer with defendant National Central Bank (Bank ), July 10, 1978, led to an investigation which culminated in plaintiff ' s arrest two months later. Plaintiff was taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District Attorney of Lancaster County dropped the charges shortly before the Bank discovered the missing deposits stuck in the night depository in January 1979. Plaintiff then commenced this action alleging violations of the Fourth, Fifth, Ninth and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U. S. C. § 1983. [1] Defendants, who now move to dismiss the complaint, include Penn, the Bank, two Penn employees, one Bank employee, and Detective Herman W. Simms, an employee of defendant City of Lancaster. Specifically, plaintiff charges that the Penn and Bank enploy#es acted under color of state law and conspired to deprive her of constitutional rights by maliciously making misleading and false statements to Detective Simms " when they knew or in the exercise of reasonable investigation and care would have known (that the accusations) would result in the arrest and prosecution of the plaintiff " for violation of 18 Pa. Cons. Stat. Ann. § 3927 (a) (Purdon ). [2] On September 15, 1978, relying in part on statements made by the Penn and Bank employees, Simms executed a complaint before a Lancaster County muctice of the Peace, who determined that probable cause existed to believe that plaintiff committed the theft. With the warrant that issued upon the complaint Simms arrested plaintiff, who now alleges that the criminal proceedings were " instituted and continued against the plaintiff. .. wholly without. .. probable cause " and thus violative of the Fourth Amendment. The instant situation is therefore unlike Baker v. McCollan, ___ U. S. ___, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979 ), in which the respondent did not attack the validity of the warrant under which he was arrested. In fact in Baker the respondent ' s 1983 claim was based on a sheriff ' s actions after, not before, arrest. [3] Id. at ___, 99 S. Ct. 2689. In the case at bar plaintiff does attack the validity of the arrest warrant. Arrest without probable cause is a constitutional violation. Patzig v. O ' Neil, 577 F. 2d 841, 848 (3d Cir. 1978 ). The issue therefore arises whether an allegation of simple negligence states a claim for relief under § 1983; more specifically, whether Detective Simms is liable under § 1983 if he negligently caused plaintiff to be arrested upon less than probable cause. * 976 Although the Supreme Court has expressly reserved deciding the matter, Baker v. McCollan, supra, Procunier v. Navarette, 434 U. S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978 ), it has opined that the appro(riatR answer is " more elusive than it appears at first blush " and " may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action ". Baker v. McCollan, ___ U. S. at ___, 99 S. Ct. at 2692. See also Monroe v. Pape, 365 U. S. 167, 187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961 ), in which the court held that a specific intent to violate a constitutional right is not required in a § 1983 action but did not reach the question of whether a general intent without regard to whether the acts specifically were intended to violate a person ' s civil rights was necessary for a § 1983 action to lie. Neither the Fourth nor Fourteenth Amendments guarantees that only the guilty will be arrested. And the Due Process Clause specifically does not mandate that " every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person ". Baker v. McCollan, ___ U. S. at ___, 99 S. Ct. at 2695, quoting Patterson v. New York, 432 U. S. 197, 208, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977 ). A fortiori, due process does not require exhaustion of every conceivable precaution to avert arresting an innocent OeTson. Many courts agree that simple negligence may not form the predicate of a § 1983 claim. Page v. Sharpe, 487 F. 2d 567, 569 (1st Cir. 1973) (" mere negligence, in the absence of conduct which shocks the conscious, in giving or failing to suLplh medical treatment to prisoners will not suffice " ); Williams v. Vincent, 508 F. 2d 541, 546 (2d Cir. 1974) (" an isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the cneequence of his conduct " ); Corby v. Conboy, 457 F. 2d 251, 254 (2d Cir. 1972) (mfr4 negligence by a state prison doctor does not support a claim of denial of federal constitutional rights ); Patzig v. O ' Neil, 577 F. 2d at 848 (" police personnel may have acted negligently, perhaps even callously; but Dush actions do not amount to the ` intentional conduct characterizing a constitutional infringement ' " ); Hampton v. Holmesburg Prison Officials, 546 F. 2d Q07^, 1081 (3d Cir. 1976) (" to establish a constituHionsl violation, the indifference must be deliberate and the actions intentional " ); Howell v. Cataldi, 464 F. 2d 272, 279 (3d Cir. 1972) (plaintiff must adduce proof of either " wrongful intention or culpable negligence " ); Bryan v. Jones, 530 F. 2d 1210, 1215 (5th Cir. 1976) (en banc) (a jailer whose errors in a record - keeping system fall outside of his realm of responsibility cannot be found liable if he has acted reasonably and in good faith ); Puckett v. Cox, 456 F. 2d 233, 235 (6th Cir. 1972) (more than an isolated incident of negligence must be alleged ); Jamison v. McCurrie, 565 F. 2d 483, 486 (7th Cir. 1977) (" there is no constitutional cause of action for mere negligence on the part of police officers. .. . Plaintiff must show that their misbehavior was either intentional or in reckless disregard of his constitutional rights " ); McDonald v. Illinois, 557 F. 2d 596, 601 (7th Cir. 1977) (" for plaintiff to state a cognizable claim, he must allege more than mere negligence on the part of. .. defendants " ); Brown v. United States, 486 F. 2d 284, 287 (8th Cir. 1973) (" we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under § 1983 " ). Cf. Procunier v. Navarette, 434 U. S. at 568, 98 S. Ct. at 863 (" one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983 ") (Burger, C. J. , dissenting ). See also Stringer v. Chicago, 464 F. Supp. 887, 890 (N. D. Ill. 1979 ), Croswell v. O ' Hara, 443 F. Supp. 895, 898 (E. D. Pa. 1978 ), Schweiker v. Gordon, 442 F. Supp. 1134, 1138 (E. D. Pa. 1977 ), and Jones v. McElroy, 429 F. Supp. 848, 863 (E. D. Pa. 1977 ). [4] 977 To distill from these disquisitions the appropriate standard by which to evaluate plaintiff ' s claims is no simple matter. Nonetheless, the appropriate standard seems to include both a subjective and objective element under the circumstances. If Detective Simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft, and if he did not know, nor reasonably should have known, that his official action would violate plaintiff ' s rights or if he acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant is not liable. See also Wood v. Strickland, 420 U. S. 308, 321 - 22, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975 ), Reese v. Nelson, 598 F. 2d 822, 827 (3d Cir. 1979 ), and Princeton Community Phone Book, Inc. v. Bate, 582 F. 2d 706, 711 (3d Cir. 1978) and compare with Scheuer v. Rhodes, 416 U. S. 232, 247 - 48, 94 S. Ct.	476 F.Supp. 974 (1979) Shirley A. ONLEY v. Detective Herman W. SIMMS and City of Lancaster and Supreme Penn Dairies, Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c/o National Central Bank and National Central Bank. Civ. A. No. States District Court, E. D. Pennsylvania. September 20, 1979. Gerald Joel D. Caney, Philadelphia, Pa., for plaintiff. 975 C. W. R. P. Nuffort, Lancaster, Pa., J. K. Thomas, II, Harrisburg, Pa., for defendants. MEMORANDUM TROUTMAN, District Judge. Disappearance of cash plaintiff, an employee of defendants Penn Dairies, Inc. and Penn Supreme (Penn), to have deposited on behalf her employer defendant National Central Bank (Bank), July 1978, to an investigation which culminated in plaintiff's arrest two months later. Plaintiff was taken custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District Attorney of Lancaster County the charges shortly before the Bank discovered the missing deposits stuck in the night depository in January 1979. Plaintiff then commenced this action alleging violations of the Fourth, Fifth, Ninth and Fourteenth Amendments and the Civil Rights Act of 42 U.S.C. § 1983.[1] who now move to dismiss the complaint, include Penn, the Bank, two employees, one Bank employee, and Detective Herman W. Simms, an employee of defendant City of Lancaster. Specifically, plaintiff the Penn and employees acted under color of state law and conspired to deprive her of rights by maliciously making misleading and false statements to Detective Simms "when knew or in the exercise of reasonable and care would have known (that the accusations) would result in the arrest and prosecution the plaintiff" for violation of 18 Pa.Cons.Stat. Ann. § 3927(a)(Purdon).[2] September 15, 1978, relying in part statements made by the Penn and Bank employees, Simms executed complaint before a Lancaster County Justice of the Peace, who determined that probable cause to believe that plaintiff committed the theft. With the warrant that issued upon the complaint Simms arrested plaintiff, who now alleges that the criminal proceedings were and continued against the plaintiff ... wholly without ... probable and thus violative of the Fourth The instant situation is therefore unlike Baker v. McCollan, ___ ___, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), which the respondent not attack the validity of the warrant which he was arrested. In fact in Baker 1983 claim was based on a sheriff's actions after, not before, arrest.[3]Id. at ___, 99 S.Ct. 2689. In the case at bar plaintiff does attack the validity of the arrest warrant. Arrest without probable cause is constitutional violation. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). The issue therefore arises whether an allegation of simple negligence states claim for relief under § 1983; more specifically, whether Detective Simms is liable under § 1983 if he negligently caused plaintiff to be arrested probable cause. 976 Although the Supreme Court has expressly reserved deciding the matter, Baker v. McCollan, supra, Procunier Navarette, 555, 98 S.Ct. 55 L.Ed.2d 24 (1978), has opined that the appropriate answer is elusive it appears first blush" and "may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the a § 1983 action". Baker v. McCollan, ___ at ___, 99 S.Ct. at 2692. also Monroe v. Pape, 365 U.S. 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the court held that a specific intent to a constitutional right is not required in a § 1983 action but did not reach the question of whether a general intent without regard to whether the acts specifically were to violate a person's necessary for § 1983 action to lie. Neither the Fourth nor Fourteenth Amendments guarantees that only guilty be arrested. And Due Process Clause specifically does not that conceivable step taken, at whatever cost, to the possibility of convicting an innocent person". Baker McCollan, ___ U.S. at ___, 99 S.Ct. quoting Patterson New York, U.S. 208, 97 S.Ct. 2319, 53 L.Ed.2d (1977). A fortiori, due process does not require exhaustion of every conceivable precaution to arresting an innocent person. Many courts agree that simple negligence may form the predicate of a § 1983 claim. Page v. Sharpe, 487 F.2d 567, 569 (1st Cir. 1973) negligence, in the absence of which shocks conscious, in giving or failing to supply medical treatment to prisoners will not suffice"); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974) ("an isolated omission to act by a state prison guard not support a claim under section 1983 absent an evil or or at least indifference to the consequence of his conduct"); Corby v. 457 F.2d 251, 254 Cir. 1972) negligence by a state prison doctor does not support a of denial of federal rights); Patzig v. O'Neil, 577 F.2d at 848 ("police personnel may have acted negligently, even callously; but such actions do not amount to the `intentional conduct characterizing a constitutional infringement'"); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) ("to establish a constitutional violation, the indifference must be and the actions intentional"); v. Cataldi, 464 F.2d 272, 279 Cir. (plaintiff must adduce proof of either "wrongful intention or culpable negligence"); Bryan v. Jones, 530 F.2d 1210, (5th Cir. 1976) (en banc) (a jailer whose errors in a record-keeping system fall outside of his realm of responsibility found liable if he has reasonably and in faith); Puckett v. Cox, 456 F.2d 233, (6th Cir. 1972) (more than an incident of negligence must be alleged); Jamison v. McCurrie, 565 F.2d 483, 486 (7th Cir. 1977) ("there is constitutional cause action for mere negligence the part of police officers . . .. Plaintiff must that their misbehavior was either intentional or in reckless disregard of his McDonald v. Illinois, 557 F.2d 596, 601 (7th Cir. 1977) ("for to state a cognizable claim, he must allege than mere negligence on the part of . . . defendants"); Brown v. United States, 486 284, 287 Cir. 1973) ("we extremely hesitant to that mere simple negligence can the basis personal liability under 1983"). Cf. Procunier v. Navarette, U.S. at 568, 98 S.Ct. at 863 ("one who does not intend to cause and not exhibit deliberate indifference to risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § (Burger, C. See also Stringer v. Chicago, 464 F.Supp. 887, 890 (N.D. Ill. 1979), Croswell O'Hara, 443 F.Supp. 895, 898 (E.D. Pa. 1978), Schweiker v. Gordon, 442 F.Supp. 1134, 1138 (E.D. Pa. 1977), and Jones v. McElroy, 429 F.Supp. 848, 863 (E.D. 1977).[4] *977 To distill these disquisitions the appropriate standard by which to evaluate plaintiff's claims is no simple matter. Nonetheless, the appropriate standard seems to include both a subjective and objective element under the circumstances. If Detective Simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft, and if he did not know, nor reasonably should have known, that his official action would violate plaintiff's rights or if acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant is not liable. See also Wood v. Strickland, 420 U.S. 95 S.Ct. 992, L.Ed.2d 214 (1975), Reese v. Nelson, 598 F.2d 822, 827 Cir. 1979), and Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 711 (3d Cir. 1978) and compare with v. Rhodes, 416 U.S. 232, 247-48, 94	476 f.supp. 974 (1979) shIRLey A. OnlEY V. dEtEctivE hERMAn W. simms ANd CitY of LaNCAsTeR aNd pENn SupReme ANd PeNn daIRIES, InC. anD CAROLiNE PraTt aNd PhILlip a. KliewER aND MARgE BReNISER c/O nATiOnAL cenTRAL banK AND nATioNAl ceNTRAL bANk. CIv. A. nO. 79-1304. uNITed StATes diStRiCT cOURT, E. D. pENnsylvANiA. SePTEMber 20, 1979. gERalD a. sTEiN, joEL D. cAnEy, pHiLADELPHIA, pa., FoR PlaINTIfF. 975 c. w. MATTsON, R. P. NuFfOrt, LancaSTEr, pA., J. K. tHoMAS, II, HARRIsbURg, Pa., fOR deFENDanTs. meMoranDum TrOUTmaN, dIsTrIct judgE. dISAppeaRANce Of cash wHiCh plaintiFF, an emPLOyeE of defeNdAnTs PEnn dAIRIEs, iNC. anD pEnN SuPREME (pEnN), cLaImED tO hAvE DePosItED ON bEhAlf oF her eMPLoYeR wiTh defeNdanT naTiONAL cENTrAl banK (bAnK), jUlY 10, 1978, leD To An INVesTIgaTiOn wHIcH CuLminaTed in plaIntiFF's aRrEST two MoNtHS later. plaIntiff waS tAKeN InTo cuSTOdY, PROcEssEd, fiNgErPrinted, phOtoGrapHed anD held FOr PreLIMinARY arRaIgNmeNt. hOWever, the dIstriCt aTtornEy OF LAncasteR coUNTy dropPeD thE CHargeS SHOrtLy BEFORe THe bAnk DiscOVErEd tHe miSSiNg depoSIts stUCK IN THE NiGHT DEPOSItOrY in jaNuary 1979. PlaInTIfF theN CoMmenceD THIS AcTion allegiNg viOlAtiOnS oF THe FOURTH, fIFTH, NiNTh aNd foUrtEENTH AMenDmENTs AND tHE civIl rigHTs ACt OF 1871, 42 U.S.C. § 1983.[1] dEfenDaNTs, who nOW MOVE TO diSmiSs ThE COmPlaINT, InCLude penn, The BAnk, tWO pEnN emPlOyEes, ONE bAnk EMplOyEE, aND deTECTIve heRmAn w. SImmS, An emplOyee OF deFendanT cITy oF LANCAsTEr. SpeCIFicAlLY, pLAiNtiff CHargeS thAT tHE penn AnD baNK EmpLoYeES ACTed uNdEr COloR OF StATe LAw AnD CONSpIREd To DEprIVe HER oF coNstiTUTIONAl rIGhts BY MaLiCIoUsLY maKinG MisleAdiNG And False StaTEmenTs TO dEteCTiVe SIMMS "wHen THeY KnEW oR in THe eXERCiSe of reAsOnABle INvEstigatION anD CarE wOulD have knoWn (thAT the acCusaTIONs) woULd rEsUlT IN thE aRreST aNd pROSEcuTION of ThE pLAinTIFF" for VIOlATION of 18 PA.COns.stat. ANN. § 3927(a)(PURDON).[2] ON sEpTeMBeR 15, 1978, RELyinG IN paRt oN sTATeMeNtS made by ThE pENn anD bAnK employEES, sImMs exECuTEd A COMplaInT BefOre A LaNCASTeR county juStICE oF ThE PeAcE, who DeTeRMINeD thAt proBabLe caUsE eXistEd tO BeliEVe tHAt PlaintifF CoMMITtEd thE thEft. wITH thE wARRAnt THaT ISsUeD UPON THe CoMplAiNt SIMms aRreSteD pLaInTiff, wHo noW aLlegES ThAt THE cRiMInaL ProCeedInGs weRE "InstitUtEd AND contiNuED aGAinsT thE PLAinTiFF ... WholLy withoUT ... pRObABLe cAUsE" AND ThuS ViOLAtiVE OF thE fOUrTh AmEndMEnT. ThE INSTant sITuatiOn is ThEReFoRe unLIke baKER v. mccollAN, ___ U.s. ___, 99 s.CT. 2689, 61 L.eD.2D 433 (1979), In whicH THe REspondENT DID noT aTTAcK the VALIDiTy OF tHe warraNt unDEr WhiCh HE WAs ArreStED. IN fAcT IN BakER the REsPoNDEnt'S 1983 CLAIm WAS bASeD oN a shErifF's acTIons afTER, NOt BefoRE, Arrest.[3]id. at ___, 99 s.cT. 2689. IN ThE CAsE AT bAr plAinTIff dOeS atTAck THe vAlIDIty oF tHe arReSt WArrant. aRREsT WiThOut PRoBABlE caUSE iS A CoNStitUtIOnaL VioLaTIoN. paTziG V. o'NeiL, 577 F.2D 841, 848 (3D cir. 1978). THe isSuE THEreFoRe aRiSES whEther aN AlLEgAtION oF simpLE negLIgenCe States A ClAim FOr RELief UnDEr § 1983; mOrE sPECIfiCalLy, whether deTectiVE siMMs iS liAble UNDer § 1983 IF he neGliGeNTly CAused PLAinTiff TO bE ArREstEd upON lEsS ThAn PrObAble cAUSe. 976 AlTHoUgH ThE suPREmE cOuRT HAS exPrEssLY reSeRVED DECidInG thE MAtTEr, BAkeR v. Mccollan, sUpRa, proCUnier v. NavAreTTe, 434 U.S. 555, 98 s.ct. 855, 55 L.eD.2D 24 (1978), IT haS OpIneD That tHE APpROPrIate aNSWEr Is "mOrE Elusive than IT AppEARS AT FirST bLUSH" AND "may WElL NoT Be suScEpTibLe OF A UnIfORm AnsWER acrOsS tHE ENTIre SpeCtRUM of CONcEIvabLE consTiTUtioNal VIOLaTIons wHiCh miGht be tHE subjECT OF a § 1983 ActiON". BaKEr v. mcCOLLAN, ___ u.S. aT ___, 99 s.Ct. aT 2692. seE also monROE v. PAPE, 365 u.s. 167, 187, 81 S.CT. 473, 5 l.ED.2D 492 (1961), in whiCh THE COURT HEld ThaT A sPecifIC INtEnt tO VIOlAtE a ConsTitUTiONal RIGht Is nOT ReQuIRED In a § 1983 acTION But DID nOT ReAcH THe QuEsTIon oF wHethER a gEnerAL intEnt WiTHoUT rEgArD To WHetHER tHE acts SPecIfiCALLy weRe INtendED TO vioLAtE a pErSon's CiviL rIGHTs wAS nEcesSarY fOr a § 1983 AcTION tO lie. NEIthER thE fOURTh nor FOurTeeNTh ameNdMentS gUaRANTeEs ThAT onlY tHE GUilTY WiLL Be aRresTED. And The dUe PrOcEss cLaUSE SpeCiFIcally DoES nOt manDaTe THaT "evERy coNCEIVABLE StEP bE TaKen, At WhAtEVEr cosT, TO ELIMiNATe thE pOsSIbIlity OF CoNvICTiNg AN iNNocEnt pErSOn". bAKeR v. mccollAN, ___ U.s. aT ___, 99 S.Ct. at 2695, QuOtinG PATTerSon v. nEw yorK, 432 U.S. 197, 208, 97 S.CT. 2319, 53 L.ED.2d 281 (1977). A ForTiOri, DUe PrOceSS Does NOT rEQUiRe eXhAuSTION oF eVERy conceIvABLE prEcAUTion TO AVeRT ArRESTing aN InnoCent PErSON. MAnY cOUrTs AgreE tHAT SiMPlE negLiGenCE may noT foRm tHE prEdICaTE of A § 1983 cLAIm. PaGe V. shaRpe, 487 f.2D 567, 569 (1st CIR. 1973) ("mere nEGligence, iN The AbSencE Of CONdUct WHICH shOCkS tHE COnscIous, iN Giving oR fAIliNG TO Supply mEDicAL trEaTMeNT To PRISoNErS WIlL nOt sUfFIcE"); wILlIaMS v. VIncEnT, 508 f.2d 541, 546 (2D cIr. 1974) ("an isOLAted OMisSIoN To act BY A sTAte PRisOn guaRd doeS NoT suPpORt a ClAIM under SeCTIon 1983 ABsEnT CircuMsTancES iNDICAtiNG aN EVIL inTeNT, OR rECKLEssnESs, or aT LEAST DElIBeRatE inDIffEReNCe to THe cOnSequeNce of HiS cONDUct"); CORBy v. cONboy, 457 f.2D 251, 254 (2d CiR. 1972) (meRe NEglIGenCE BY A sTATe PRIsoN DOcToR doeS noT suPPOrt A CLaiM OF deNIal oF fEdeRaL CONstitUTIOnaL RiGhTS); PatZIg v. o'NeIL, 577 f.2D At 848 ("pOlicE pErsOnnel MaY HAVe AcTEd neGLigEnTlY, PerhApS EvEn cAlLoUSly; But sUCh AcTiONS DO noT AmOunt to thE `INtEntiONAL conDuCt chaRacTErizIng A ConstItUtIoNal infriNGEMENT'"); HAMPToN V. HolmesbURg PRISon ofFICIAlS, 546 F.2d 1077, 1081 (3d CiR. 1976) ("to eSTAblIsH a COnSTItUTioNaL ViolaTion, THE indiffErencE MUST BE dElIBerATe aND THe aCTIoNs IntEntional"); hOWElL V. catALDI, 464 F.2d 272, 279 (3D cIR. 1972) (pLAintIFF MuST AdDuCe Proof oF EiThEr "WrONGfUl IntENtiOn or cULpaBlE NEgligENCE"); BRYAN v. JoNES, 530 f.2d 1210, 1215 (5th CIr. 1976) (en BANC) (A JaiLeR wHoSe ErrorS iN a REcOrd-KEEPINg SYsTEM fAll OUTSiDE OF His rEalM Of RespOnSIBIliTY caNNOt bE foUNd LiAbLe iF HE HAS actEd ReasOnABlY AND IN gOoD FaitH); PUCKeTT v. cOx, 456 F.2d 233, 235 (6TH ciR. 1972) (moRe thaN an ISOLAted INCIdenT oF NEgliGenCe musT BE aLlEGED); jAmiSoN V. McCUrrie, 565 f.2d 483, 486 (7th CIR. 1977) ("TheRE IS nO cONsTITUtioNal cause of ACTIOn for MeRe NEGLIgENcE On THE part Of PoLICe OfFiCErS . . .. PLAintiff MUST shoW ThAT thEIr MIsbeHaVior was eitHER intentionaL oR In rECKLESs DISrEgard OF hIS cOnSTITutiOnAl righTS"); McDOnALD v. ILLiNoIs, 557 f.2d 596, 601 (7TH cIR. 1977) ("FOR PlAiNTifF to StAte a cOGNIZabLE CLaiM, He MuSt aLlEGe moRe Than merE NEGliGENCE On the paRt OF . . . deFendanTS"); bRowN V. uNItEd sTaTEs, 486 F.2d 284, 287 (8TH cIR. 1973) ("we aRe extRemElY hEsItaNt TO holD THAT MerE sImPLe NeglIgEnce caN bE tHE BASIs Of PeRSOnAL LIaBIlItY uNDEr § 1983"). Cf. PROcuNIER V. naVaRETte, 434 u.S. AT 568, 98 s.cT. at 863 ("oNE WHO doeS NOt INtEnd tO caUsE aNd doEs noT ExHIbIt DEliBERaTe IndifFereNce To ThE RISK Of cAusING THE HARM That gIvES rISe tO A COnSTiTUtIOnal CLaim is NOt LIaBle FOR DamAgES unDer § 1983") (BUrgER, c. J., dISsenTiNG). See aLSo sTRingEr V. CHicaGO, 464 f.SuPp. 887, 890 (N.D. iLl. 1979), cROSwelL V. o'HAra, 443 F.SupP. 895, 898 (E.d. Pa. 1978), SChWeIKER v. gordOn, 442 F.sUPp. 1134, 1138 (e.d. pa. 1977), AND jones v. MCelrOY, 429 f.SUPp. 848, 863 (e.D. PA. 1977).[4] *977 TO DiSTILl FrOm THeSe DiSQuiSItIoNS tHe AppROprIaTe standARD bY WHiCH tO eVALUATe pLAINTIff'S claIMS iS nO simPLE mATtEr. NOnETheless, THE aPpRoPrIate StAnDArD sEeMS tO INCluDE botH A sUBjECTIVe AND oBJeCTive elEmenT uNDeR ThE ciRcumSTAnces. iF dEtECtIVE SimMs, ACtinG IN gOod FaIth, siNceRelY bELiEved tHAt prOBaBle CaUse eXIsteD ThAt plAINTiFf cOMmiTTed THe TheFt, ANd If He Did nOT kNoW, noR rEasONABLy sHoULd HaVe known, ThaT HIs oFfiCIaL aCTION woULd ViolAtE plAIntiff'S RIGHTs Or IF he actEd WITHouT malIcIOUS INTent TO DePrIVe plAiNtIFF OF HEr CONSTITUTIONal rIghts, THeN DEFENdANt is nOT liABLE. sEE aLSo wOOd v. strIcklAnD, 420 U.s. 308, 321-22, 95 s.CT. 992, 43 L.ED.2D 214 (1975), reEse V. NELson, 598 f.2D 822, 827 (3D Cir. 1979), AND PrInceTon comMuNiTy PHoNE BOok, Inc. v. BATe, 582 F.2D 706, 711 (3d CIR. 1978) aND CoMPARe wiTh SChEuEr v. RhoDeS, 416 u.s. 232, 247-48, 94 S.ct.	476 F.Supp. 974 (1979) Shirley A. ONLEY v. DetectiveHerman W. SIMMS and City of Lancaster and Penn Supreme and Penn Dairies,Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c/o National Central Bank and NationalCentral Bank. Civ. A. No. 79-1304.United States District Court, E. D.Pennsylvania. September 20, 1979. Gerald A. Stein, Joel D. Caney, Philadelphia, Pa., for plaintiff. 975 C. W. Mattson, R. P. Nuffort, Lancaster, Pa.,J. K.Thomas, II, Harrisburg, Pa., for defendants. MEMORANDUM TROUTMAN,District Judge. Disappearance of cash which plaintiff,an employee of defendants Penn Dairies, Inc. andPenn Supreme (Penn), claimed to have depositedon behalf of her employer with defendant National Central Bank (Bank), July 10,1978, led to an investigationwhich culminated in plaintiff's arrest two months later. Plaintiff was taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District Attorney of Lancaster County dropped the charges shortly before the Bank discovered the missing deposits stuck in the nightdepository in January 1979. Plaintiffthen commenced this action alleging violations of the Fourth,Fifth, Ninth and Fourteenth Amendments and the CivilRights Act of 1871, 42 U.S.C. § 1983.[1] Defendants, who now move to dismiss the complaint, include Penn, the Bank, two Pennemployees, one Bank employee, and Detective Herman W. Simms, an employee of defendant City of Lancaster.Specifically,plaintiff charges that thePenn and Bank employees acted undercolor of state law and conspiredto deprive herof constitutional rights by maliciouslymaking misleading and falsestatements to Detective Simms "when they knew or in the exercise of reasonable investigationand care would have known (thatthe accusations) would result in the arrestand prosecutionof the plaintiff"for violation of 18Pa.Cons.Stat. Ann. § 3927(a)(Purdon).[2] OnSeptember 15, 1978, relying in part onstatements madeby the Penn and Bank employees,Simms executed a complaint before a Lancaster County Justice of the Peace, who determined that probable cause existed to believethat plaintiff committed the theft.With the warrant that issued upon the complaint Simms arrestedplaintiff, whonowalleges that the criminal proceedings were "instituted and continued againstthe plaintiff ... wholly without...probablecause" and thus violative of the Fourth Amendment.The instant situationis therefore unlike Bakerv. McCollan, ___ U.S. ___, 99 S.Ct.2689, 61L.Ed.2d 433 (1979), in which the respondent did not attack the validityof the warrant under which he was arrested. In fact in Baker the respondent's 1983 claim was basedonasheriff'sactions after, not before,arrest.[3]Id. at ___, 99 S.Ct.2689. Inthe case at barplaintiff does attack the validity of the arrest warrant. Arrest withoutprobable cause is aconstitutional violation. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir.1978). The issuetherefore arises whether anallegation of simple negligence states a claimfor relief under § 1983; more specifically, whether Detective Simms is liable under §1983 ifhe negligently caused plaintiff to be arrested upon less than probable cause. 976Although the Supreme Court has expresslyreserved deciding the matter, Baker v. McCollan, supra, Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), it has opined that the appropriate answer is"more elusive thanit appears at first blush" and "may well not besusceptible of a uniform answer across the entire spectrum of conceivable constitutionalviolations which might be the subject of a§ 1983 action". Baker v. McCollan,___ U.S. at ___, 99 S.Ct. at 2692. See also Monroe v. Pape,365 U.S. 167, 187, 81S.Ct. 473, 5 L.Ed.2d492 (1961), in which thecourtheld that a specific intent to violate a constitutional right is not required in a §1983 action but did not reach thequestionof whether a general intent withoutregard to whether the acts specifically were intended to violate a person's civil rightswas necessary for a § 1983action to lie. Neitherthe Fourth nor Fourteenth Amendments guarantees that only the guiltywill be arrested. And the Due Process Clause specificallydoes not mandate that "every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocentperson".Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2695, quoting Patterson v. New York, 432 U.S. 197, 208,97 S.Ct. 2319, 53 L.Ed.2d 281(1977). Afortiori, due process doesnot requireexhaustion of every conceivable precaution to avertarresting an innocent person. Many courtsagree that simple negligence may not form the predicate of a § 1983 claim. Page v. Sharpe, 487 F.2d 567, 569 (1st Cir. 1973) ("mere negligence, in the absence of conduct which shocks the conscious, in giving or failing tosupply medical treatment to prisoners will notsuffice"); Williamsv. Vincent, 508 F.2d541, 546 (2d Cir.1974) ("an isolated omission to act by a stateprison guard doesnot support aclaim under section1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference tothe consequence of his conduct"); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972) (mere negligence by astate prison doctor does not support a claim ofdenial of federal constitutional rights); Patzig v. O'Neil, 577 F.2d at 848 ("police personnelmay have acted negligently,perhaps even callously; but such actions do not amount to the`intentional conduct characterizing a constitutionalinfringement'"); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) ("to establish aconstitutional violation, the indifference must be deliberate and the actionsintentional");Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972) (plaintiff mustadduce proofof either "wrongful intention orculpable negligence"); Bryan v. Jones, 530 F.2d 1210,1215 (5th Cir. 1976) (en banc) (a jailer whose errors in a record-keeping system fall outside of his realmof responsibility cannot be found liable if he hasacted reasonably and in good faith); Puckett v. Cox, 456 F.2d 233, 235(6th Cir. 1972) (more than an isolated incident of negligence must be alleged); Jamison v. McCurrie, 565 F.2d483, 486(7th Cir. 1977) ("there is noconstitutional cause of action for mere negligence on the part of policeofficers. . .. Plaintiff must show that theirmisbehavior was either intentional orin reckless disregard of his constitutional rights"); McDonald v. Illinois, 557 F.2d 596, 601 (7th Cir. 1977) ("for plaintiff to state a cognizable claim, he must allege more than mere negligenceon the part of . .. defendants");Brown v. United States, 486 F.2d 284, 287 (8th Cir. 1973) ("we are extremely hesitant to hold that mere simple negligencecan be the basis of personal liability under § 1983").Cf. Procunier v. Navarette, 434 U.S.at 568, 98 S.Ct. at 863 ("onewho does notintend to cause and does not exhibit deliberate indifference to the riskof causing the harm that gives rise to a constitutional claim is not liable for damagesunder § 1983")(Burger, C. J., dissenting). See also Stringer v. Chicago, 464 F.Supp. 887, 890 (N.D. Ill. 1979), Croswell v. O'Hara,443 F.Supp. 895, 898 (E.D. Pa. 1978), Schweiker v. Gordon, 442 F.Supp. 1134, 1138 (E.D. Pa. 1977), and Jones v. McElroy, 429 F.Supp. 848, 863 (E.D. Pa. 1977).[4] *977 Todistill fromthesedisquisitions the appropriate standard by which to evaluate plaintiff'sclaims is no simple matter. Nonetheless, the appropriate standard seems to include both asubjective and objective element under the circumstances.If Detective Simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft,andifhe didnot know, nor reasonably shouldhave known, that his official action would violate plaintiff's rights or if he acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant isnot liable. See also Wood v. Strickland, 420 U.S. 308,321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), Reese v. Nelson, 598 F.2d 822,827 (3d Cir. 1979), and Princeton Community Phone Book,Inc. v. Bate, 582 F.2d 706, 711 (3d Cir. 1978) and compare with Scheuer v. Rhodes,416 U.S. 232, 247-48, 94 S.Ct.	476 F.Supp. 974 (1979) Shirley _A._ ONLEY _v._ Detective _Herman_ W. SIMMS and City of Lancaster and Penn Supreme and Penn Dairies, Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c/o _National_ _Central_ _Bank_ and National _Central_ _Bank._ Civ. A. No. _79-1304._ _United_ _States_ District _Court,_ _E._ D. Pennsylvania. September 20, 1979. Gerald A. Stein, Joel D. Caney, _Philadelphia,_ Pa., for plaintiff. 975 C. W. Mattson, R. P. Nuffort, Lancaster, Pa., J. K. Thomas, II, Harrisburg, Pa., for defendants. MEMORANDUM TROUTMAN, _District_ _Judge._ _Disappearance_ of cash which plaintiff, an _employee_ of defendants Penn Dairies, Inc. and Penn _Supreme_ (Penn), claimed to have deposited on behalf of _her_ _employer_ with _defendant_ National Central Bank _(Bank),_ July 10, 1978, _led_ to an investigation which culminated _in_ plaintiff's arrest two months later. Plaintiff _was_ taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District _Attorney_ of Lancaster County _dropped_ the _charges_ shortly _before_ the _Bank_ discovered _the_ missing deposits stuck in the night _depository_ in _January_ 1979. Plaintiff _then_ commenced this action alleging violations _of_ the _Fourth,_ Fifth, Ninth and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U.S.C. § _1983.[1]_ Defendants, who now _move_ _to_ dismiss the complaint, include _Penn,_ the Bank, _two_ Penn employees, one Bank _employee,_ and Detective Herman W. _Simms,_ an _employee_ of defendant City of _Lancaster._ _Specifically,_ plaintiff charges that the Penn and Bank employees acted under _color_ _of_ state _law_ and conspired to deprive her of constitutional rights _by_ maliciously making misleading and false statements to _Detective_ Simms "when they knew _or_ in the exercise of reasonable _investigation_ and care would have known (that the accusations) would result in the _arrest_ and prosecution _of_ the plaintiff" for _violation_ of 18 _Pa.Cons.Stat._ Ann. § 3927(a)(Purdon).[2] On September 15, 1978, relying _in_ part on statements made by the Penn and _Bank_ employees, Simms _executed_ a complaint before a Lancaster County Justice of the Peace, who determined that probable cause existed _to_ _believe_ that plaintiff _committed_ the theft. With the warrant _that_ _issued_ upon the complaint _Simms_ arrested plaintiff, who _now_ alleges _that_ _the_ criminal proceedings were "instituted and _continued_ against the plaintiff ... _wholly_ without ... probable _cause"_ and thus _violative_ of the Fourth Amendment. The instant situation _is_ therefore _unlike_ Baker v. McCollan, ___ U.S. ___, 99 _S.Ct._ 2689, 61 L.Ed.2d 433 (1979), in which the respondent did not attack the _validity_ of the warrant under which he _was_ arrested. In fact in Baker the respondent's _1983_ claim was based on _a_ sheriff's actions after, not before, arrest.[3]Id. at ___, 99 S.Ct. 2689. In _the_ case at bar plaintiff _does_ attack the _validity_ of the arrest warrant. Arrest without probable cause is a constitutional _violation._ Patzig v. _O'Neil,_ 577 _F.2d_ _841,_ 848 _(3d_ Cir. 1978). The _issue_ therefore arises whether _an_ _allegation_ _of_ _simple_ negligence states a claim for relief under § 1983; more _specifically,_ whether _Detective_ Simms is _liable_ _under_ _§_ 1983 if he negligently caused plaintiff to _be_ arrested upon less _than_ probable cause. 976 Although the Supreme _Court_ has expressly _reserved_ deciding the matter, Baker v. McCollan, supra, Procunier v. Navarette, _434_ U.S. _555,_ 98 S.Ct. 855, _55_ L.Ed.2d 24 _(1978),_ it has _opined_ that the appropriate answer is "more elusive than it appears _at_ first _blush"_ _and_ "may well not be susceptible of _a_ uniform answer across the _entire_ spectrum _of_ conceivable constitutional violations which _might_ _be_ the _subject_ of a § 1983 action". Baker v. _McCollan,_ ___ U.S. at ___, 99 S.Ct. at 2692. See also _Monroe_ v. Pape, 365 U.S. 167, 187, _81_ S.Ct. 473, 5 _L.Ed.2d_ 492 (1961), in which the court held _that_ a specific intent to violate a constitutional right is not required in a _§_ 1983 _action_ but did not reach the question of whether a general intent without regard to whether the acts specifically were intended _to_ violate a person's civil rights was necessary for a § _1983_ action _to_ lie. Neither the Fourth nor Fourteenth Amendments guarantees _that_ _only_ the _guilty_ will be arrested. _And_ the Due Process Clause specifically _does_ not mandate that "every conceivable step be taken, at whatever _cost,_ to eliminate _the_ possibility of convicting an innocent person". Baker v. McCollan, ___ U.S. at ___, _99_ _S.Ct._ at 2695, quoting Patterson v. _New_ York, 432 U.S. _197,_ 208, _97_ S.Ct. 2319, 53 L.Ed.2d 281 _(1977)._ A fortiori, due process does not _require_ exhaustion of every conceivable _precaution_ to avert arresting an innocent person. Many courts agree _that_ _simple_ _negligence_ may not form the _predicate_ of _a_ § 1983 claim. Page v. Sharpe, 487 F.2d _567,_ 569 _(1st_ _Cir._ 1973) _("mere_ _negligence,_ in the _absence_ of conduct which _shocks_ _the_ conscious, _in_ giving or failing _to_ _supply_ medical treatment to prisoners will not suffice"); Williams _v._ _Vincent,_ 508 F.2d 541, 546 (2d Cir. 1974) ("an isolated omission to _act_ by a state prison guard does _not_ support a claim _under_ section 1983 absent _circumstances_ indicating an evil intent, or recklessness, or at least deliberate indifference to _the_ consequence _of_ his conduct"); _Corby_ v. Conboy, 457 F.2d 251, _254_ _(2d_ _Cir._ 1972) (mere negligence by a state _prison_ doctor does not support a claim _of_ denial of federal constitutional _rights);_ _Patzig_ v. O'Neil, 577 F.2d at 848 ("police personnel may have _acted_ _negligently,_ perhaps even callously; but _such_ actions _do_ not amount to the `intentional conduct characterizing a constitutional infringement'"); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) ("to establish _a_ _constitutional_ violation, the indifference must be deliberate and the actions intentional"); Howell v. Cataldi, 464 _F.2d_ 272, 279 (3d Cir. 1972) (plaintiff must adduce _proof_ of _either_ "wrongful _intention_ or culpable negligence"); Bryan v. Jones, 530 F.2d 1210, 1215 _(5th_ _Cir._ 1976) (en banc) (a _jailer_ whose errors _in_ a record-keeping system fall outside of his realm of responsibility cannot be _found_ liable if he has acted reasonably and _in_ good faith); Puckett v. Cox, 456 F.2d 233, 235 (6th _Cir._ 1972) (more than an isolated incident of negligence must _be_ alleged); Jamison v. McCurrie, 565 F.2d 483, 486 (7th Cir. 1977) ("there is no constitutional cause of action for mere _negligence_ _on_ the _part_ of _police_ officers . . .. Plaintiff must show that their misbehavior _was_ either _intentional_ or in reckless _disregard_ of his constitutional rights"); McDonald v. Illinois, 557 _F.2d_ 596, 601 (7th Cir. 1977) ("for plaintiff _to_ state a cognizable claim, _he_ must allege _more_ than mere negligence on the part of . . . defendants"); Brown v. United States, 486 F.2d 284, 287 (8th Cir. 1973) ("we are _extremely_ _hesitant_ to hold that _mere_ simple negligence can _be_ the basis of personal liability under § 1983"). Cf. Procunier v. Navarette, 434 _U.S._ at _568,_ 98 _S.Ct._ at 863 ("one who does not intend _to_ _cause_ _and_ does _not_ _exhibit_ deliberate _indifference_ to the risk of causing the harm that gives rise _to_ a constitutional claim is not liable for _damages_ under _§_ _1983")_ (Burger, _C._ J., dissenting). See also Stringer v. Chicago, 464 F.Supp. _887,_ 890 (N.D. Ill. _1979),_ Croswell v. O'Hara, 443 F.Supp. 895, 898 (E.D. Pa. 1978), _Schweiker_ v. _Gordon,_ 442 F.Supp. 1134, 1138 _(E.D._ Pa. 1977), and Jones _v._ McElroy, _429_ F.Supp. 848, 863 (E.D. Pa. 1977).[4] *977 _To_ distill from these disquisitions _the_ appropriate standard by which to evaluate plaintiff's claims is no simple matter. Nonetheless, _the_ appropriate standard _seems_ to _include_ _both_ a subjective and objective element under the _circumstances._ _If_ _Detective_ _Simms,_ acting in good faith, sincerely _believed_ that _probable_ cause existed that plaintiff _committed_ the theft, and if _he_ did not know, nor reasonably should have known, that his official action would _violate_ plaintiff's _rights_ or if he acted without malicious intent _to_ deprive plaintiff of her _constitutional_ rights, then defendant is not liable. See also Wood v. Strickland, 420 _U.S._ _308,_ _321-22,_ _95_ S.Ct. 992, 43 L.Ed.2d 214 (1975), Reese _v._ Nelson, 598 F.2d 822, 827 (3d Cir. 1979), and Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 711 (3d Cir. _1978)_ and compare _with_ Scheuer v. Rhodes, 416 _U.S._ 232, 247-48, _94_ _S.Ct._
358 F.2d 1002 Martha W. BROWN, Individually and as Agent and Attorney for William D. Brown, III, Grady W. Brown, Philip B. Brown and Martha Brown Wilsonv.The UNITED STATES. No. 141-65. United States Court of Claims. April 15, 1966. William D. Brown, Monroe, La., attorney of record, for plaintiffs. Theus, Grisham, Davis, Leigh & Brown, Monroe, La., of counsel. Edward L. Metzler, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges. PER CURIAM:* 1 According to the petition, which was filed on April 30, 1965, the plaintiffs are the widow and surviving children of William Dennis Brown, Jr., and, as such, they are the owners through inheritance of farmlands situated in East Carroll Parish, Louisiana. The lands in question are suitable for the production of rice; and prior to and during the crop year 1958, such lands received a rice acreage allotment of 307.5 acres in accordance with the provisions of the Agricultural Adjustment Act of 1938, as amended. This statute, prior to 1958 and during the early part of that year, provided (among other things) for the establishment by the Secretary of Agriculture, on a calendar year basis, of a national acreage allotment for rice (7 U.S.C. § 1352 (1952)), for the apportionment of the national acreage allotment among the several rice-producing States (7 U.S.C. § 1353(a) (1952)), and for the allocation of each State acreage allotment "to farms owned or operated by persons who have produced rice in the State in any one of the five calendar years immediately preceding the year for which such apportionment is made on the basis of past production of rice in the State by the producer on the farm taking into consideration the acreage allotments previously established in the State for such owners or operators; abnormal conditions affecting acreage; land, labor, and equipment available for the production of rice; crop rotation practices; and the soil and other physical factors affecting the production of rice * * " (7 U.S.C. § 1353(b) (1952, Supp. V)). 2 On June 4, 1958, the provision of the Agricultural Adjustment Act of 1938, as amended, relating to the allocation of each State acreage allotment for rice at the farm level was further amended by Public Law 85-443 (72 Stat. 177). The petition alleges that, by virtue of this amendment, the rice acreage allotments for the geographical area in which the plaintiffs' lands are located were changed from the "farm" basis to the "producer" basis, and that the rice acreage allotment of 307.5 acres previously mentioned was divided between the plaintiffs and their tenants for the year 1959 and subsequent years, with the result that the plaintiffs were allocated only 79.9 acres for the production of rice in 1959 and subsequent years, the remaining 227.6 acres of the original 307.5-acre allotment being allocated to tenants who had theretofore participated in the gross proceeds of the rice produced from the plaintiffs' lands. This action, according to the petition, amounted to a taking of the plaintiffs' property for public use without just compensation, in violation of the Fifth Amendment to the Constitution of the United States; and the plaintiffs seek to recover $68,280 as compensation in the present action. 3 The petition forthrightly states that the "Plaintiffs have also instituted suit before the United States District Court for the Western District of Louisiana, Monroe Division, seeking further redress and adjudication in connection with the circumstances here set forth * *." 4 The defendant filed a motion to dismiss the petition in this court, on the ground that the Court of Claims lacks jurisdiction of the case because of 28 U.S.C. § 1500 (1964), which declares that: 5 The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 6 A copy of the complaint filed by the plaintiffs in the United States District Court for the Western District of Louisiana was attached to the defendant's motion to dismiss. The complaint in the District Court case was filed on April 29, 1965, or the day before the plaintiffs filed their petition in the Court of Claims case. 7 The defendants in the District Court case were the United States, the Louisiana Agricultural Stabilization and Conservation Committee, and the East Carroll Parish Agricultural Stabilization and Conservation Committee. The respective committees administer the rice program under the Agricultural Adjustment Act of 1938, as amended, in the State of Louisiana and in East Carroll Parish. The operative facts alleged in the District Court case are the same as the facts alleged in the petition in this court. However, in the District Court case, the plaintiffs asserted alternatively (1) that the administrative officials misconstrued and misapplied the amendment of June 4, 1958, in depriving the plaintiffs of 227.6 acres of the rice acreage allotment previously allocated to their lands and, accordingly, that the plaintiffs are entitled to a reinstatement of the full amount of the previous rice acreage allotment; or (2) that if the amendment of June 4, 1958, has been properly construed and applied by the administrative officials, then the provisions of the amendment, as so construed and applied, have deprived the plaintiffs of their property without just compensation, in violation of the Fifth Amendment to the Constitution of the United States. In either event (according to the plaintiffs' allegations in the District Court case), they have been wrongfully deprived of 227.6 acres of their rice acreage allotment for 5 years, and they are entitled to recover compensation at the rate of $6,828 per year for each of the 5 years. The plaintiffs further said in the District Court case that they are asserting a separate claim for each year (doubtless having in mind the $10,000 limitation imposed by 28 U.S.C. § 1346(a) (2) (1964) on the jurisdiction of District Courts with respect to suits against the United States). 8 On October 1, 1965, this court, noting that "plaintiffs have previously filed suit in the U.S. District Court for the Western District of Louisiana, Monroe Division, seeking, as one alternative relief, just compensation for the taking of their property which claim is identical in substance to that asserted in the petition in this court and which claim remains pending in the said District Court" [emphasis added], dismissed the petition, without prejudice, on the basis of 28 U.S.C. § 1500, supra. 9 Plaintiffs moved for rehearing (in October 1965) on the ground that, in the District Court, the Government had moved to dismiss the alternative claim for just compensation as beyond that court's jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the District Court, on December 9, 1965, had sustained the Government's motion and had dismissed on jurisdictional grounds the plaintiffs' claim for compensation. This court has ascertained that no appeal has been taken from that ruling and that the period for appeal has now expired. At the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs' petition in this court. 10 In these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant's motion to dismiss. Our earlier order of dismissal was predicated on the fact that the other "claim remains pending in the said District Court." That is no longer true, and the claim is no longer "pending in any other court." In this situation, we do not believe that 28 U.S.C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation. The District Court has decided that this claim is beyond its jurisdiction and plaintiffs have acquiesced in that ruling. Unless they can proceed in this court they will be unable to attempt to obtain a determination of the merits of this monetary claim. Section 1500 was designed to require an election between two forums both of which could presumably grant the same type of relief. See Casman v. United States, 135 Ct.Cl. 647 (1956); Tecon Engineers, Inc. v. United States, 343 F.2d 943, 945 ff., 170 Ct.Cl. 389, 393 ff. (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). But Section 1500 was not intended to compel claimants to elect, at their peril, between prosecuting their claim in this court (with conceded jurisdiction, aside from Section 1500) and in another tribunal which is without jurisdiction. Once the claim has been rejected by the other court for lack of jurisdiction, there is no basis in the policy or wording of the statute for dismissal of the claim pending here. The plaintiffs could undoubtedly file a new petition, without any bar through Section 1500; it does not seem fair or make sense to insist that that must be done — with the limitations difficulties it may well entail. Tecon Engineers, Inc., supra, teaches that the section should be given a reasonable and just construction	358 f. 2d 1002 martha w. brown, judge and as agent and attorney for william d. brown, iii, grady w. brown, philip b. brown and martha brown wilsonv. the united states. no. 37 - 65. united states court of claims. april 15, 1966. william d. brown, monroe, la., attorney of record, for plaintiffs. theus, grisham, davis, leigh & brown, monroe, fl., of counsel. edward l. metzler, washington, d. c., with whom was asst. atty. gen., john w. douglas, for defendant. before cowen, district judge, and laramore, durfee, davis and collins, judges. per curiam : * 1 according to the petition, which was filed on april 30, 1965, the plaintiffs are the widow and surviving children of william dennis brown, jr., and, as such, they are the owners through inheritance of farmlands situated in east lee parish, louisiana. the lands in question are suitable for the production of rice ; and prior to and during the crop year 1958, such lands received a rice acreage allotment of 307. 5 acres in accordance with the provisions of the agricultural adjustment act of 1938, as amended. this statute, prior to 1958 and during the early part of that year, provided ( among other things ) for the establishment by the secretary of agriculture, on a calendar year 1976, of a national acreage allotment for rice ( 7 u. s. c. § 1352 ( 1952 ) ), for the apportionment of the national acreage allotment among such several rice - producing states ( 7 u. s. c. § 1353 ( a ) ( 1952 ) ), and for the allocation of each state agricultural allotment " to farms owned or operated by persons who have produced rice in the state in any one of the five calendar years immediately preceding the year for which such apportionment is authorized on the basis of past production of rice in the state by the producer on the farm taking into consideration the acreage allotments previously assigned in the state for such owners or operators ; abnormal conditions affecting acreage ; land, labor, and equipment available for the production of rice ; crop rotation practices ; and the soil and other physical factors affecting the production of rice * * * " ( 7 u. s. c. § 1353 ( b ) ( 1952, supp. v ) ). 2 on june 4, 1958, the provision of the agricultural adjustment act of 1938, as amended, relating to the allocation of each state acreage allotment for rice at the farm level was further amended by public law 85 - 443 ( 72 stat. 177 ). the petition alleges that, by virtue of this amendment, the rice acreage allotments for the geographical area in which the plaintiffs ' lands are located were changed from the " farm " basis to the " producer " basis, and that the rice acreage allotment of 307. 5 acres previously mentioned was divided between the plaintiffs and their tenants for the year 1959 and subsequent years, with the result that the plaintiffs were allocated only 79. 9 acres for the production of rice in 1959 and subsequent years, the remaining 227. 6 acres of the original 307. 5 - acre allotment being allocated to tenants who had theretofore participated in the gross proceeds of the rice produced from the plaintiffs ' lands. this action, according to the petition, amounted to a taking of the plaintiffs ' property for public use without just compensation, in violation of the fifth amendment to the constitution of the united states ; and the plaintiffs seek to recover $ 68, 280 as compensation in the present action. 3 the petition forthrightly states that the " plaintiffs have also instituted suit before the united states district court for the western district of louisiana, monroe division, seeking further redress and adjudication in connection with the circumstances here set forth * * *. " 4 the defendant filed a motion to dismiss the petition in this court, on the ground that the court of claims lacks jurisdiction of the case because of 28 u. s. c. § 1500 ( 1964 ), which declares that : 5 the court of claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the united states or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the united states. 6 a copy of the complaint filed by the plaintiffs in the united states district court for the western district of louisiana was attached to the defendant ' s motion to dismiss. the complaint in the district court case was filed on april 29, 1965, or the day before the plaintiffs filed their petition in the court of claims case. 7 the defendants in the district court case were the united states, the louisiana agricultural stabilization and conservation committee, and the east carroll parish agricultural stabilization and conservation committee. the respective committees administer the rice program under the agricultural adjustment act of 1938, as amended, in the state of louisiana and in east carroll parish. the operative facts alleged in the district court case are the same as the facts alleged in the petition in this court. however, in the district court case, the plaintiffs asserted alternatively ( 1 ) that the administrative officials misconstrued and misapplied the amendment of june 4, 1958, in depriving the plaintiffs of 227. 6 acres of the rice acreage allotment previously allocated to their lands and, accordingly, that the plaintiffs are entitled to a reinstatement of the full amount of the previous rice acreage allotment ; or ( 2 ) that if the amendment of june 4, 1958, has been properly construed and applied by the administrative officials, then the provisions of the amendment, as so construed and applied, have deprived the plaintiffs of their property without just compensation, in violation of the fifth amendment to the constitution of the united states. in either event ( according to the plaintiffs ' allegations in the district court case ), they have been wrongfully deprived of 227. 6 acres of their rice acreage allotment for 5 years, and they are entitled to recover compensation at the rate of $ 6, 828 per year for each of the 5 years. the plaintiffs further said in the district court case that they are asserting a separate claim for each year ( doubtless having in mind the $ 10, 000 limitation imposed by 28 u. s. c. § 1346 ( a ) ( 2 ) ( 1964 ) on the jurisdiction of district courts with respect to suits against the united states ). 8 on october 1, 1965, this court, noting that " plaintiffs have previously filed suit in the u. s. district court for the western district of louisiana, monroe division, seeking, as one alternative relief, just compensation for the taking of their property which claim is identical in substance to that asserted in the petition in this court and which claim remains pending in the said district court " [ emphasis added ], dismissed the petition, without prejudice, on the basis of 28 u. s. c. § 1500, supra. 9 plaintiffs moved for rehearing ( in october 1965 ) on the ground that, in the district court, the government had moved to dismiss the alternative claim for just compensation as beyond that court ' s jurisdiction. thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the district court, on december 9, 1965, had sustained the government ' s motion and had dismissed on jurisdictional grounds the plaintiffs ' claim for compensation. this court has ascertained that no appeal has been taken from that ruling and that the period for appeal has now expired. at the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs ' petition in this court. 10 in these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant ' s motion to dismiss. our earlier order of dismissal was predicated on the fact that the other " claim remains pending in the said district court. " that is no longer true, and the claim is no longer " pending in any other court. " in this situation, we do not believe that 28 u. s. c. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation. the district court has decided that this claim is beyond its jurisdiction and plaintiffs have acquiesced in that ruling. unless they can proceed in this court they will be unable to attempt to obtain a determination of the merits of this monetary claim. section 1500 was designed to require an election between two forums both of which could presumably grant the same type of relief. see casman v. united states, 135 ct. cl. 647 ( 1956 ) ; tecon engineers, inc. v. united states, 343 f. 2d 943, 945 ff., 170 ct. cl. 389, 393 ff. ( 1965 ), cert. denied, 382 u. s. 976, 86 s. ct. 545, 15 l. ed. 2d 468 ( 1966 ). but section 1500 was not intended to compel claimants to elect, at their peril, between prosecuting their claim in this court ( with conceded jurisdiction, aside from section 1500 ) and in another tribunal which is without jurisdiction. once the claim has been rejected by the other court for lack of jurisdiction, there is no basis in the policy or wording of the statute for dismissal of the claim pending here. the plaintiffs could undoubtedly file a new petition, without any bar through section 1500 ; it does not seem fair or make sense to insist that that must be done — with the limitations difficulties it may well entail. tecon engineers, inc., supra, teaches that the section should be given a reasonable and just construction	358 F. 2d 1002 Martha W. BROWN, Individually and as Agent and Attorney for William D. Brown, III, Grady W. Brown, Philip B. Brown and Martha Brown Wilsonv. The UNITED STATES. No. 141 - 65. United States Court of Claims. April 15, 1966. William D. Brown, Monroe, La. , attorney of record, for plaintiffs. Theus, Grisham, Davis, Leigh & Brown, Monroe, La. , of counsel. Edward L. Metzler, Washington, D. C. , with whom was Asst. Atty. Gen. , John W. Douglas, for defendant. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges. PER CURIAM: * 1 According to the petition, Qhuch was filed on April 30, 1965, the plaintiffs are the widow and surviving children of William Dennis Brown, Jr. , and, as such, they are the owners through inheritance of farmlands situated in East Carroll Parish, Louisiana. The lands in question are suitable for the production of rice; and prior to and during the crop year 1958, such lands received a rice acreage allotment of 307. 5 acres in accordance with the provisions of the Agricultural Adjustment Act of 1938, as amended. This statute, prior to 1958 and during the early part of that year, provided (among other things) for the establishment by the Secretary of Agriculture, on a calendar year basis, of a national acreage allotment for rice (7 U. S. C. § 1352 (1952) ), for the apportionment of the national acreage allotment among the several rice - producing States (7 U. S. C. § 1353 (a) (1952) ), and for the allocation of each State acreage allotment " to farms owned or operated by persons who have produced rice in the State in any one of the five calendar years immediately preceding the year for which such apportionment is made on the basis of past production of rice in the State by the producer on the farm taking into consideration the acreage allotments previously established in the State for such owners or operators; abnormal conditions affecting acreage; land, labor, and equipment available for the production of rice; crop rotation practices; and the soil and other physical factors affecting the production of rice * * * " (7 U. S. C. § 1353 (b) (1952, Supp. V) ). 2 On June 4, 1958, the provision of the Agricultural Adjustment Act of 1938, as xmendeS, relating to the allocation of each State acreage allotment for rice at the farm level was further amended by Public Law 85 - 443 (72 Stat. 177 ). The petition alleges that, by virtue of this amendment, the rice acreage allotments for the geographical area in which the plaintiffs ' lands are located were changed from the " farm " basis to the " producer " basis, and that the rice acreage allotment of 307. 5 acres previously mentioned was divided between the plaintiffs and their tenants for the year 1959 and subsequent years, with the result that the plaintiffs were allocated only 79. 9 acres for the production of rice in 1959 and subsequent years, the remaining 227. 6 acres of the original 307. 5 - XcEe allotment being allocated to tenants who had theretofore partidopated in the gross proceeds of the rice produced from the plaintiffs ' lands. This action, according to the petition, amounted to a taking of the plaintiffs ' property for public use without just compensation, in violation of the Fifth Amendment to the Constitution of the United States; and the plaintiffs seek to recover $ 68, 280 as compensation in the present action. 3 The petition forthrightly states that the " Plaintiffs have also instituted suit before the United States District Court for the Western District of Louisiana, Monroe Division, seeking further redress and adjudication in connection with the circumstances here set forth * * . " 4 The defendant filed a motion to dismiss the petition in this court, on the ground that the Court of Claims lacks jurisdiction of the case because of 28 U. S. C. § 1500 (1964 ), which declares that: 5 The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 6 A copy of the complaint filed by the plaintiffs in the United States District Court for the Western District of Louisiana was attached to the defendant ' s motion to dismiss. The complaint in the District Court case was filed on April 29, 1965, or the day before the plaintiffs filed their petition in the Court of Claims case. 7 The defendants in the District Court case were the United States, the Louisiana Agricultural Stabilization and Conservation Committee, and the East Carroll Parish Agricultural Stabilization and Conservation Committee. The respective committees administer the rice program under the Agricultural Adjustment Act of 1938, as amended, in the State of Louisiana and in East Carroll Parish. The operative facts alleged in the District Court case are the same as the facts alleged in the petition in this court. However, in the District Court case, the plaintiffs asserted alternatively (1) that the administrative officials misconstrued and misapplied the amendment of June 4, 1958, in depriving the plaintiffs of 227. 6 acres of the rice acreage allotment previously allocated to their lands and, accordingly, that the plaintiffs are entitled to a reinstatement of the full amount of the previous rice acreage allotment; or (2) that if the amendment of June 4, 1958, has been properly construed and applied by the administrative officials, then the provisions of the amendment, as so construed and applied, have deprived the plaintiffs of their property without just compensation, in violation of the Fifth Amendment to the Constitution of the UnUteE States. In either event (according to the plaintiffs ' allegations in the District Court case ), they have been wrongfully deprived of 227. 6 acres of their rice acreage allotment for 5 years, and they are entitled to recover compensation at the rate of $ 6, 828 per year for each of the 5 years. The plaintiffs further CaiW in the District Court case that they are asserting a separate claim for each year (doubtless having in mind the $ 10, 000 limitation imposed by 28 U. S. C. § 1346 (a) (2) (1964) on the jurisdiction of District Courts with respect to suits against the United States ). 8 On October 1, 1965, this court, noting that " plaintiffs have previously filed suit in the U. S. District Court for the Western District of Louisiana, Monroe Division, seeking, as one alternative relief, just compensation for the taking of their property which claim is identical in substance to that asserted in the petition in this court and which claim remains pending in the said District Court " [emphasis added ], dismissed the petition, without prejudice, on the basis of 28 U. S. C. § 1500, supra. 9 Plaintiffs moved for rehearing (in October 1965) on the ground that, in the District Court, the Government had moved to dismiss the alternative claim for just compensation as beyond that court ' s jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the District Court, on December 9, 1oU5, had sustained the Government ' s motion and had dismissed on jurisdictional grounds the plaintiffs ' claim for compensation. This court has ascertained that no appeal has been taken from that ruling and that the period for appeal has now expired. At the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs ' petition in this coIrf. 10 In these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant ' s joton to dismiss. Our earlier order of dismissal was predicated on the fact that the other " claim remains pending in the said District Court. " That is no longer true, and the claim is no longer " pending in any other court. " In this situation, we do not believe that 28 U. S. C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test %heur demand for just compensation. The District Court has decided that this claim is beyond its jurisdiction and plaintiffs have acquiesced in that ruling. Unless they can proceed in this court they will be unable to attempt to obtain a determination of the merits of this monetary claim. Section 1500 was designed to require an election between two forums both of which could presumably grant the same type of relief. See Casman v. United States, 135 Ct. Cl. 647 (1956 ); Tecon Engineers, Inc. v. United States, 343 F. 2d 943, 945 ff. , 170 Ct. Cl. 389, 393 ff. (1965 ), cert. denied, 382 U. S. 976, 86 S. Ct. 545, 15 L. Ed. 2d 468 (1966 ). But Section 1500 was not intended to compel claimants to elect, at their peril, between prosecuting their claim in this court (with conceded jurisdiction, aside from Section 1500) and in another tribunal which is without jurisdiction. Once the claim has been rejected by the other court for lack of jurisdiction, there is no basis in the policy or wording of the statute for dismissal of the claim pending here. The plaintiffs could undoubtedly file a new petition, without any bar through Section 1500; it does not seem fair or make sense to insist that that must be done — with the limitations difficulties it may well entail. Tecon Engineers, Inc. , supra, teaches that the section should be given a reasonable and just construction	F.2d 1002 Martha W. BROWN, Individually and as Agent and Attorney for William D. Brown, III, Grady W. Brown, Philip B. Brown and Martha Brown Wilsonv.The STATES. No. 141-65. United States Court of Claims. April 15, 1966. William D. Monroe, La., attorney record, for plaintiffs. Theus, Grisham, Davis, Leigh & Brown, Monroe, La., of counsel. Edward L. Metzler, Washington, D. C., with whom was Asst. Gen., John W. Douglas, defendant. Before Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges. PER CURIAM:* 1 According to the petition, which was filed on April 30, 1965, the plaintiffs are widow and surviving children of William Brown, and, as such, they the owners through inheritance of farmlands situated in East Carroll Parish, Louisiana. lands in question are suitable for the production of rice; and prior and the crop year 1958, such lands received a rice acreage allotment of 307.5 acres in accordance with the provisions of the Agricultural Adjustment Act of 1938, as amended. This statute, prior to 1958 and during the early part of that year, provided (among other things) for the establishment the Secretary of Agriculture, on calendar year basis, national allotment rice (7 U.S.C. § (1952)), for the apportionment of the national acreage allotment among the several rice-producing States U.S.C. 1353(a) (1952)), and for the allocation each State acreage allotment "to farms owned or operated by persons who have produced in the State in any one of the five calendar years immediately preceding the year for which such apportionment is made the basis of past production in the State by the producer on the farm taking into consideration acreage allotments previously established in the for such or operators; abnormal conditions affecting acreage; land, labor, and equipment available the production of rice; crop rotation and the other physical factors affecting the production of rice * * (7 U.S.C. § 1353(b) (1952, Supp. V)). 2 On June 4, 1958, the provision of the Agricultural Adjustment Act of 1938, as amended, the allocation of each State acreage allotment for rice at the level was further amended by Law 85-443 Stat. 177). The petition alleges that, by of this amendment, the rice acreage allotments for the geographical area in which the plaintiffs' lands are located were changed from the basis to the "producer" basis, and that acreage of 307.5 acres previously mentioned was divided between the plaintiffs and their tenants for the year 1959 subsequent years, with the that the plaintiffs were allocated only 79.9 acres for the production of rice in 1959 and years, the remaining 227.6 acres of the original 307.5-acre allotment being allocated to who had theretofore participated in the proceeds of the rice from the plaintiffs' lands. This action, according the petition, amounted a taking of the plaintiffs' property for public just compensation, in violation the Fifth Amendment to Constitution of the United States; and the seek to recover $68,280 as compensation in the action. 3 The forthrightly states that the "Plaintiffs have also instituted suit before the United States District Court for the Western District of Louisiana, Monroe Division, seeking further redress adjudication in connection with the circumstances here set forth * * *." 4 The filed a motion to the petition in this court, on ground that the Court of lacks jurisdiction of the because of 28 U.S.C. § 1500 (1964), which declares that: 5 The of Claims shall not have jurisdiction of any claim for in to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, in respect thereto, acting or professing to act, or indirectly under the authority of the United States. 6 of the complaint by the plaintiffs in the United States District Court for the Western District of Louisiana was attached to the defendant's motion to dismiss. The complaint in the District Court case was filed on April 29, 1965, or day the plaintiffs filed petition in the Court of Claims case. 7 The defendants in the District Court case were the United States, the Louisiana Agricultural Stabilization Conservation the Parish Agricultural Stabilization and Conservation Committee. The respective committees administer the rice program under the Agricultural Adjustment Act of 1938, as amended, in the State of Louisiana and in East Parish. The operative facts in the District case are the same as the facts alleged in the petition in this court. However, in the District Court case, the plaintiffs asserted alternatively the administrative officials misconstrued and misapplied the amendment of June 1958, in depriving the plaintiffs of 227.6 acres of the rice acreage allotment previously allocated to their lands and, accordingly, that the plaintiffs are entitled to a reinstatement of the full amount of the previous acreage allotment; (2) that if the amendment of June 4, 1958, has properly and applied the administrative officials, then the provisions of the so construed applied, have deprived the plaintiffs of their property without just compensation, in violation of the Fifth Amendment the of the United States. In either (according to the plaintiffs' allegations in the District case), they have been wrongfully deprived of 227.6 acres of their rice allotment for 5 years, and they are to recover compensation at the rate $6,828 per year each of the 5 years. The plaintiffs further said in the District Court case that they are asserting separate claim for each year (doubtless having in the $10,000 limitation by 28 U.S.C. § 1346(a) (2) (1964) the jurisdiction District Courts with respect to suits against the United States). 8 On October 1, 1965, this court, noting that have previously suit in the U.S. District Court for the Western District Louisiana, Monroe Division, seeking, as one alternative relief, just compensation for the taking of their property which claim is identical in substance to that asserted in the petition in this court and which claim pending in the said District Court" [emphasis added], dismissed the without prejudice, on the basis of 28 U.S.C. § supra. 9 Plaintiffs moved for rehearing (in October 1965) on the ground that, in the District Court, the Government had moved dismiss the alternative claim for compensation as beyond that court's jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the Court, on December 9, sustained the Government's motion and had dismissed jurisdictional grounds the claim for compensation. This court has ascertained that no appeal has been taken from that ruling and that the period for appeal now expired. the present time, therefore, the only claim for just compensation pending a court is that stated in the plaintiffs' in this court. 10 circumstances we grant the motions for vacate our prior order dismissing the petition, and now deny the defendant's motion to dismiss. Our order of dismissal was predicated on the fact that the other "claim remains pending in the District Court." That is true, and the is no longer "pending in any other court." In this situation, do not believe 28 U.S.C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation. The District Court has decided that claim is beyond its jurisdiction and plaintiffs have acquiesced ruling. Unless they can in this they will be unable to attempt to obtain a of the merits this monetary claim. Section 1500 was designed to an election two forums both of which could presumably grant the same type of relief. See v. United States, 135 Ct.Cl. 647 Tecon Engineers, Inc. v. United States, 343 F.2d 943, 945 ff., 170 Ct.Cl. 389, 393 ff. (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). But Section 1500 was not intended to compel claimants to elect, at their peril, between their claim in this court (with conceded jurisdiction, aside from Section 1500) and in another tribunal is without jurisdiction. Once the claim has been rejected by the other court for lack of jurisdiction, there is no basis in the policy or wording of the statute dismissal of the claim pending here. The plaintiffs could undoubtedly a new petition, without any bar through Section 1500; it not seem fair or make sense to insist that that must be done — with the limitations it well entail. Tecon Engineers, Inc., supra, teaches that the section be given a reasonable and just construction	358 F.2D 1002 mARTha w. BRoWN, IndIVIdUaLLY AnD As agENT anD ATtORnEy fOr WillIAM d. BROwn, iiI, gRady w. BrOwN, PhiLiP B. BrOWn aND maRtha brOwn WIlSONV.THE UnIteD sTAtEs. NO. 141-65. unITEd STAtES couRt of cLaIMs. aPRiL 15, 1966. WilliaM d. brOWn, Monroe, La., aTtOrnEy Of RecORd, For PLaINTiffS. THEus, GRIShaM, DaVis, LEiGH & BrOWN, MOnroe, LA., OF COunSel. EdWArD l. MetZLeR, WaShInGtoN, D. c., WITH WHOM WaS AsST. aTtY. GEN., JOhn w. DouGLAS, fOR dEFENdANt. BEFoRE COweN, chiEf JudgE, aND LaRaMORe, duRfeE, DAvis AND coLlinS, jUDges. PEr cuRIam:* 1 accORdIng To THe peTItIoN, WhIcH wAs fILEd ON APRIL 30, 1965, THE pLaintIFFs aRE ThE WIdOw ANd SUrvIViNG cHilDrEn OF WILliAM DEnNIS BROWn, Jr., and, As Such, They Are the OWnErS ThroUGh InHERITaNCe Of FaRmlanDS SiTUateD in EaSt CArRoLL PaRiSh, lOUIsiAnA. THe LaNdS In QuEsTiOn ARe SUItabLe fOr tHE PrODuctION OF RICE; aNd PRiOr TO ANd dURing thE CROP YEAR 1958, SUCH LANDS ReCEivEd a riCE aCreagE ALLOTment oF 307.5 acREs IN ACCOrDANcE wItH THE ProviSIonS OF tHE aGricUlTuRAl AdJustMent aCT oF 1938, as AMeNdEd. this StaTUte, pRIoR To 1958 ANd dURiNg the EArLY part Of THAt yEAr, ProVIdEd (AMoNg oTher thiNGs) For THE EsTaBLishMenT By THE SEcREtARy oF AGrIcuLTURE, on a caleNDaR year Basis, oF a NaTionAl ACrEAge aLLOTMeNT foR riCe (7 u.s.c. § 1352 (1952)), for the apportiONMEnt oF tHe naTIoNAl AcReAGE AlLoTmenT amONG THE seVERaL RICe-PRoDucinG StATEs (7 u.S.C. § 1353(a) (1952)), aND for The ALloCATiOn Of EAcH StAte ACREaGe AlLoTmenT "TO fARmS oWnED or oPERateD bY pErSOns wHo hAVe PrODUceD RiCE iN tHe STatE IN any onE Of tHE FivE Calendar yearS IMMeDIaTELy PreCeDing ThE Year For WHICH sUCH APPorTionmENt IS MADE ON THe bASis of Past prodUCTiON Of RicE In tHe STAtE by the prODUceR oN thE farm tAKiNG iNTo consIDeRaTIon tHe acREAge aLLotmeNTS PRevioUsLY EstAblisHed IN THE stATe fOR SUcH owneRS oR opERAtoRs; ABNoRmAL conDiTIOns AffEcting AcReAGe; lAND, laBOR, anD equiPMeNt AvaIlaBle for tHe PRODuCTION oF riCe; CrOP RoTAtioN prAcTices; AND ThE SoIl AND otHer PHysIcAL FActoRs AffeCTinG the pRoDUcTION oF rICe * * " (7 u.S.C. § 1353(B) (1952, supp. v)). 2 on jUne 4, 1958, ThE pRoVisION OF the agRICulTuRAL adJusTMenT ACT OF 1938, As aMENdeD, reLaTINg To tHe alLocAtIOn OF EaCh StaTe ACREAgE AllotmeNt FOR RICE aT The FaRm levEL Was FURTHEr AMEnDED by PUblIC lAw 85-443 (72 StaT. 177). ThE petiTIoN ALLEGEs tHAt, By VIrtUe OF THiS amENdmENT, THe rIcE ACreAge alLOTMEnts FOR ThE gEOgrAphicAL arEa IN WHIch The pLaiNTifFS' LAnDS are LocateD WeRe cHanGED FROM THE "FaRM" BaSis TO tHe "PrOduCEr" basis, AND ThAT ThE riCE aCReAge allOTmENT Of 307.5 ACrEs prEvioUSly MeNtIonED waS dIViDed BEtwEEN the plaiNTIfFS anD THEiR tenaNts fOR the YEAR 1959 anD SUBsEQuENT yEArS, with tHE resulT THaT THe pLAinTIFfs WERe allOCaTed onlY 79.9 aCREs FOr THE PrODuctiON OF RICe iN 1959 AND subSequent YEARs, THE REMAInIng 227.6 acrEs of the ORiGiNAl 307.5-AcRE alloTmENT BEiNg ALLOCATed TO tENANTs whO had THeRETOfore particiPAtEd IN the GROsS prOCeeDS OF The Rice PrODuCEd frOM tHe plAiNtiffs' LanDs. thiS ACtion, accoRdING To the pEtitIoN, amOUnTeD to A takINg OF ThE pLaINtIfFs' PropertY FOR PubliC uSe WithOuT jusT cOMpEnsation, in violATIOn oF THE fifTh AMenDmenT To ThE COnStITuTioN of THE unITED staTes; AND The pLAinTiFFs SeeK to rEcovEr $68,280 aS COMPEnSaTion In The PRESeNt ActiOn. 3 tHe PeTiTioN foRTHriGhTly STatES that tHE "plAiNTiFfs hAvE aLSo InSTITuted SuiT BEfOre thE uniTed sTAteS DisTRiCT CouRt fOr THE WeStERN dIstRICT OF louiSiANA, MoNroe DiVIsiON, SEEkINg FuRTHER REdrESs anD adJudicatIOn iN CoNNECtiON wITH tHE cIrcUMsTANces HeRE SEt fOrTH * *." 4 THE dEFEnDaNT filed a MOTION TO diSmISs The PetItiOn IN tHiS CoUrt, on the gRoUND THaT thE coURt OF cLaIMs laCkS JuriSdICtiON OF ThE cAsE bECauSE Of 28 u.S.c. § 1500 (1964), WHICH DEcLAREs thAt: 5 thE couRT Of CLAIMS shall nOT Have juRiSDICTIon of aNy CLaIm For Or iN RESPECt TO wHich the pLAinTIfF oR hiS ASsiGNEe hAS pendiNg iN Any OthEr coURt anY SUit oR PROCESs AgAINst tHe UNiTed StatEs Or AnY perSOn WhO, aT the tIme WhEn THE cAuSe oF ActiOn aLlEgeD IN sUCh sUIt Or proceSs ArOse, WAs, iN ReSPEcT Thereto, Acting Or pRoFessInG to aCt, DIReCTLY or InDIRECtly uNdER ThE AUThorIty OF THE UniTEd sTaTeS. 6 a coPY of tHe coMPlainT fIlED bY The plAiNtiFFS iN ThE uNItED staTeS DIsTrIct coURt FoR THE weSTErN DiSTRICt OF LoUiSiAnA wAs ATtacHED to ThE DEFeNDAnT's MOTIOn TO diSMiSS. The COmPLAINT iN thE disTRiCt COUrt cAse wAS FIlEd ON ApRiL 29, 1965, OR the DAY befOre tHe PLAInTifFs fiLed tHEir petItION iN ThE COUrT Of CLaIMs CASe. 7 ThE dEFENdaNTs iN tHe DIstRiCT COUrt CaSE WerE tHE uNItED StaTES, ThE louisiANa AGRICULtuRAl STABIlIzaTiON aNd cONServAtiON COMmItteE, AnD thE EAST cArRoLL pArIsH AGriCulTUrAl stABIliZaTiOn anD cOnseRVATION committEe. THE RESpeCTIVE comMiTTEeS aDmIniSTeR THe riCE PrOgraM uNdEr tHE AgRiCUlturAl adjuStmeNT ACt of 1938, as amenDED, In the STaTe Of LOuiSIAnA And In eAST CaRrOLL paRisH. the oPeratIVe fACts ALlEGED in THe distRict cOuRT cAse arE tHe sAmE aS the FaCTS allEGeD iN thE PEtItion IN ThIS COuRt. HoWever, in ThE DisTRiCt CourT CAsE, the pLaINtIfFs asSeRTEd alTeRnatIvELy (1) tHAT thE aDMInIsTratIVe officials mIsConSTrUEd aNd MIsAPpLIeD tHe AMEnDMENt oF june 4, 1958, In DePriViNg tHe PlAIntIfFs of 227.6 ACreS oF ThE rIcE ACreagE AllOtmeNt PreViOUSLy AlLocaTEd tO tHeIr lANds aND, acCOrdINglY, thaT THE plaiNTIFFs Are ENtITlEd TO A ReINStAteMeNt Of tHe fulL AMOUnT OF THE pReviOUS rICe ACrEaGe AlLoTmEnt; oR (2) tHat If thE ameNdmeNT OF jUne 4, 1958, Has BEen PROPERly CONstRuEd aNd aPpliED BY thE ADmiNIsTraTivE oFFIcIALs, THEn THE PROVisIoNS OF The AmeNdmEnt, AS sO ConSTrued And ApPLIed, HavE dePRIVEd THE PlaiNtIFFS Of tHeIr PROpErtY WiTHouT juST COMpeNsAtiOn, in VIOlAtIon OF thE FiFtH AMENdmEnt to THE CONStitUTion OF the UNiTed StAtes. In eIThER eVENt (ACcoRDinG To tHe plaintiFfs' AlLeGaTIonS IN tHE distrIcT CourT cASe), tHeY HavE bEEN wronGfUlly DePrIVED oF 227.6 acRes of theiR RicE ACrEagE aLLotmEnt for 5 yeArs, anD THeY aRe ENTiTLED To RecoVER cOmPeNsAtIon AT tHE rAte Of $6,828 per YeAR For EAcH Of THE 5 yeArs. tHe plaInTIffs fUrTheR SAid iN the diSTRiCT COUrt caSe that tHEy aRe AsserTiNG a sePArAtE clAim foR EAch YeAR (DouBtleSS HaVing IN minD ThE $10,000 lIMiTAtIoN IMPOsed BY 28 u.s.C. § 1346(a) (2) (1964) On ThE JURIsDICTiON Of dIStrIct courTs WItH RESpECt To suITS agAINst the unitED StAtES). 8 on oCtOBer 1, 1965, ThIS CouRT, nOtING THaT "PlAINTIfFS hAVE PRevioUsLy FiLED SUit IN THe u.s. DISTRIcT CoURT FoR tHE WEStERN DIstRIct Of LOuIsIanA, MOnRoE dIViSIoN, sEeKIng, As oNE altErnATive rElIEF, juSt COMPeNsatiON FOr ThE tAKIng OF tHEir properTy whIcH ClaIM is IdENtICaL IN SuBsTaNCE To ThaT AssErted IN the petiTiON In ThIs COurT AnD Which CLAIM REMAIns peNDiNG In ThE SaID dISTRicT Court" [eMphAsiS ADdeD], DIsMiSsEd tHE pEtItion, wiTHOuT PreJUDICe, on tHE BASis of 28 u.S.c. § 1500, supRA. 9 plaIntiffS MoVED fOr ReheaRINg (IN octObeR 1965) ON tHE gRoUnd THat, In the District cOURT, THE governmEnT hAD MOVED TO dISMISS The AlteRNATiVE CLAIm for jusT COMPeNSATioN aS beYoND tHaT COuRT's JUrIsdiCtION. therEafTEr THE pLAiNTiFFS fILeD A suppLeMENTal MOTion For REHEArInG inDiCaTiNG That ThE dIStrIct COuRt, oN deCeMBEr 9, 1965, hAd SustainEd THe gOVeRNmEnT'S MoTION And haD diSMiSsEd On juRisdicTIonaL GROunDs tHe PLAInTiFFS' cLaIM fOR COMpeNSAtiOn. ThiS cOUrT HaS ASCeRTAiNeD THAT NO apPeal hAs BeEN TaKEN fRom thAT rULinG AND thAt tHe PeRioD For APPeal HAs nOW EXpiRED. aT THE PResEnT tIME, tHErEfOre, tHe ONly claIM fOr JUst ComPEnSation PenDINg in A cOUrt is thaT sTaTEd iN THE plainTIFFS' PEtitION in this court. 10 iN theSe CiRCuMsTAnces wE grANt ThE MoTionS foR REHeARing, vACAte OuR PRior oRdeR DismIssIng the petitiOn, AnD nOw DEnY ThE DEfenDAnT'S MotION tO dIsmISS. ouR eArLIer ORDer of DISmIssAl Was pREDIcATED On the FaCT THaT tHe Other "CLaIM REMAiNs pENdInG in tHe SAID dIStriCt coUrT." thaT iS NO LOnGEr tRuE, AND THE CLAIm IS nO lOnGeR "pending in ANy OthEr CoURt." In This situATION, WE dO NOt BELIeVE That 28 u.s.C. § 1500 rEquIrEs us TO dEPRiVe PlAINtiffS Of thE only fOrum thEy Have iN wHICH tO teSt theIR dEManD FOR JUST cOmPENsation. THE diStrict CoURT Has DECiDed tHAt This clAim Is beYOnD ItS JUrisDiction AnD PLaInTiffs HAVe acQUIesceD in tHAt RUliNG. UnleSS tHey CAN pROcEED IN ThIS cOuRT TheY WILL bE unablE to AtTEmpT to obtaiN a DetErMINAtioN oF tHe Merits Of ThIS MONeTARY claIm. sECTion 1500 wAS DesIgneD TO rEqUIRE aN ELEctIOn BeTWEEN TWo fOruMS BOTh oF wHiCH coulD pREsUmaBly grant ThE same tyPE oF ReLieF. seE CAsmAn v. UNITeD States, 135 ct.CL. 647 (1956); tECOn enGINeERs, INc. V. UNITED STATES, 343 F.2D 943, 945 Ff., 170 ct.cL. 389, 393 fF. (1965), ceRT. DENIED, 382 U.S. 976, 86 s.cT. 545, 15 L.eD.2d 468 (1966). bUt sectioN 1500 wAs not INTendEd TO compeL ClAiMaNTS TO eleCT, AT tHEir periL, bEtWEEN pROSECUTing thEiR claiM in THIS coURT (WItH cOnCedEd jUrIsdiCtiOn, Aside from secTiON 1500) AnD iN ANOtHer tribUNaL WhICh is wIThOut JuRIsDiCtION. oNcE tHE CLaIM HAs bEEN REJECtED by The otHER COUrT FOR laCK oF JuRisdiCtioN, ThERe Is nO bASiS iN THe poLIcy Or WOrdiNG oF ThE stAtUtE FoR DIsMISsAl Of thE ClaIm PEnDInG HERe. THE plainTifFS COULd UndOubtEdly FIlE A nEw pEtitIOn, WITHoUt ANy BAr tHrOugH SecTION 1500; it dOES NOt SEEm fAiR or MAke seNSe to iNsisT That THat Must be donE — wiTh The lImITATIOnS difficUlTiEs it MAy well eNtAiL. teCon EngINeeRS, INc., SupRA, Teaches THAT THE sEctioN ShOUld BE gIveN A reasonable and JuSt constrUctIoN	358 F.2d 1002 Martha W. BROWN, Individually and asAgentand Attorney for William D. Brown, III, Grady W.Brown, Philip B. Brown and Martha Brown Wilsonv.TheUNITED STATES. No. 141-65. United States Court of Claims. April 15,1966.WilliamD. Brown, Monroe, La., attorney of record, for plaintiffs. Theus, Grisham, Davis, Leigh &Brown, Monroe,La., of counsel. Edward L. Metzler,Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant. Before COWEN, Chief Judge, andLARAMORE, DURFEE,DAVIS andCOLLINS, Judges. PER CURIAM:* 1 According to the petition, which was filed on April 30, 1965, the plaintiffs are the widow andsurviving children of William Dennis Brown, Jr., and, as such, they arethe owners through inheritance of farmlands situated in EastCarroll Parish, Louisiana. The lands in questionare suitable forthe production of rice; and prior to and during the crop year1958,suchlands receiveda rice acreageallotment of 307.5 acres in accordancewith the provisions of the Agricultural Adjustment Actof1938, as amended. This statute, prior to 1958and during the early part of that year, provided (among other things) for the establishment by the Secretary of Agriculture, ona calendar year basis, of a national acreage allotment for rice (7 U.S.C.§ 1352 (1952)), for the apportionment of the nationalacreage allotment among theseveral rice-producing States(7 U.S.C. § 1353(a) (1952)), and for the allocation of each State acreage allotment "tofarmsowned or operated by persons who haveproduced rice in theState in any one of the five calendaryears immediately precedingthe year forwhich suchapportionmentis made on the basis of past production of rice in the State by theproducer onthe farm taking into consideration the acreageallotments previously established intheState forsuch ownersoroperators; abnormal conditions affecting acreage; land, labor, and equipment availableforthe production of rice; crop rotationpractices; and the soil andother physical factors affectingthe productionof rice* * " (7 U.S.C. § 1353(b) (1952, Supp. V)). 2 On June4, 1958, the provision ofthe Agricultural Adjustment Act of 1938,asamended, relatingto theallocation of eachState acreage allotment for rice at the farm level was further amended by Public Law 85-443 (72 Stat. 177). Thepetitionalleges that, by virtue of this amendment, the rice acreage allotments for the geographical area inwhich the plaintiffs' lands are located were changed fromthe "farm" basis to the "producer" basis, and that therice acreage allotmentof 307.5 acres previously mentioned was divided between the plaintiffs and their tenants for the year1959 andsubsequent years, withthe result that the plaintiffs wereallocated only 79.9 acres for theproduction of rice in 1959 and subsequentyears, the remaining 227.6 acres of the original 307.5-acre allotment being allocated to tenants who had theretofore participated in the gross proceeds of the rice produced from the plaintiffs' lands.This action, according tothe petition, amountedto a taking ofthe plaintiffs' property for public use without justcompensation, in violation of the Fifth Amendment tothe Constitution of the United States; and the plaintiffs seekto recover $68,280 as compensation in the present action. 3 The petition forthrightly states that the "Plaintiffs have also instituted suit before the United States District Court for the Western Districtof Louisiana, Monroe Division, seeking furtherredressand adjudication in connection with the circumstances here set forth * *." 4 The defendant filed a motion to dismiss the petition inthis court, on the ground thatthe Court of Claims lacks jurisdiction of the case because of 28 U.S.C. § 1500(1964), which declaresthat: 5 The Courtof Claims shall not have jurisdiction ofany claimfor or in respect to which the plaintiffor his assignee has pending in any other court any suitor processagainst the UnitedStatesoranyperson who, at the time when the cause of actionalleged in suchsuit or process arose, was, in respect thereto, acting or professing to act, directly orindirectly underthe authorityof the United States.6 A copy of the complaint filed by theplaintiffs in the United States District Court for the Western District of Louisiana wasattachedto the defendant's motiontodismiss.The complaint inthe District Court casewas filed on April 29, 1965, or theday before the plaintiffs filed their petition in theCourt of Claims case. 7 The defendants in the DistrictCourt case werethe United States, the Louisiana AgriculturalStabilization andConservation Committee, andthe East Carroll Parish Agricultural Stabilization and Conservation Committee. The respective committees administer the rice program under the AgriculturalAdjustment Act of 1938, as amended,in the State of Louisiana and in EastCarroll Parish. The operative facts alleged in the District Court case are the same as the factsalleged in the petition in this court. However, inthe District Court case, the plaintiffs assertedalternatively (1) thatthe administrativeofficialsmisconstruedand misapplied the amendmentof June 4, 1958,in deprivingthe plaintiffs of 227.6 acres of therice acreageallotment previously allocated to their lands and, accordingly, that the plaintiffsareentitled to areinstatementof the full amount of the previous rice acreage allotment; or (2) that if the amendment of June 4, 1958, hasbeen properly construed andapplied by theadministrative officials, then the provisions ofthe amendment, as so construed andapplied, havedeprived the plaintiffs of their property without just compensation, inviolation ofthe Fifth Amendment to the Constitution oftheUnited States.In either event (according to the plaintiffs' allegations in the District Court case),they havebeen wrongfullydeprived of 227.6 acres of their riceacreageallotment for5 years, and they are entitled to recover compensation at the rate of$6,828 per year for each of the 5 years. The plaintiffs further saidin the DistrictCourt case thatthey are asserting a separate claim for each year (doubtless having in mind the $10,000 limitation imposed by 28 U.S.C. § 1346(a) (2)(1964) on the jurisdictionof District Courts with respect to suits against the United States). 8 On October 1, 1965, this court, notingthat "plaintiffs have previously filedsuit inthe U.S.District Court for the Western District of Louisiana, Monroe Division, seeking, as one alternative relief, just compensationfor the takingof their property which claim isidentical in substance to that assertedin thepetitionin this court and which claim remains pending in the said District Court" [emphasis added], dismissed the petition, without prejudice, on the basis of 28 U.S.C. § 1500, supra. 9 Plaintiffs movedforrehearing (in October 1965) on the ground that, in the District Court, theGovernment had moved todismiss the alternative claim for just compensation as beyond that court's jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the District Court, on December 9, 1965, had sustained the Government's motion andhad dismissedon jurisdictional grounds the plaintiffs' claim for compensation. This court hasascertained that no appeal hasbeen taken from that ruling and that theperiod for appeal hasnow expired. At the present time, therefore, the onlyclaim for just compensation pending in a court is that stated in the plaintiffs'petition in this court. 10 In these circumstanceswegrant the motionsfor rehearing, vacate ourprior order dismissing the petition, and now deny the defendant's motion to dismiss. Our earlier order of dismissal was predicated onthefact that the other "claim remains pending in thesaid DistrictCourt."That is no longer true, and the claim is no longer "pending in any other court." In this situation, we do not believe that 28 U.S.C. § 1500 requires us to deprive plaintiffs of the only forum they have inwhich to test their demand for just compensation. The District Court has decided that this claimis beyond its jurisdiction and plaintiffs have acquiesced in that ruling. Unless they can proceed in this court they willbeunable to attemptto obtain a determination of the merits of this monetary claim.Section 1500 was designed to require an election between two forums both of whichcould presumably grantthe same typeof relief. See Casman v. UnitedStates, 135 Ct.Cl. 647 (1956); TeconEngineers, Inc. v. United States, 343 F.2d 943, 945 ff., 170Ct.Cl. 389, 393 ff. (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). But Section 1500 wasnot intendedto compelclaimants toelect, at their peril, between prosecuting their claim in this court (with conceded jurisdiction, aside from Section 1500) and in another tribunal whichis without jurisdiction.Once the claim has been rejected by theother court for lack of jurisdiction,there is no basis in the policy or wording of the statute fordismissal of the claim pending here. The plaintiffs could undoubtedly file a newpetition,without any bar through Section 1500; it does not seem fair or makesense to insist that that must be done — with the limitations difficulties itmay well entail. Tecon Engineers, Inc., supra, teaches thatthe section should be given a reasonable and just construction	358 F.2d 1002 Martha W. BROWN, _Individually_ and as Agent and Attorney for _William_ D. Brown, III, Grady W. Brown, _Philip_ _B._ Brown and Martha _Brown_ _Wilsonv.The_ UNITED STATES. _No._ 141-65. United States Court of Claims. April 15, 1966. William D. _Brown,_ Monroe, La., attorney of record, for plaintiffs. Theus, Grisham, Davis, Leigh & Brown, _Monroe,_ La., of counsel. Edward L. Metzler, _Washington,_ D. _C.,_ with whom was Asst. _Atty._ Gen., John W. Douglas, for _defendant._ Before _COWEN,_ _Chief_ Judge, _and_ LARAMORE, DURFEE, DAVIS and COLLINS, Judges. PER CURIAM:* 1 According to _the_ petition, which was filed on _April_ 30, 1965, the plaintiffs are _the_ widow and surviving children of William Dennis Brown, Jr., and, as such, _they_ are the owners through inheritance of farmlands situated _in_ East Carroll _Parish,_ Louisiana. The lands _in_ question are suitable for _the_ production of rice; _and_ prior _to_ _and_ during the crop year 1958, such lands received a rice acreage allotment of 307.5 acres _in_ accordance _with_ the provisions of _the_ Agricultural Adjustment Act of 1938, as amended. This statute, prior to 1958 and during _the_ early part _of_ that year, provided (among other things) for the establishment _by_ the Secretary of Agriculture, on a _calendar_ year basis, of a national acreage allotment for rice (7 U.S.C. § _1352_ (1952)), _for_ the apportionment _of_ _the_ national acreage _allotment_ among _the_ several rice-producing States (7 U.S.C. § 1353(a) (1952)), and for the _allocation_ _of_ each State acreage allotment "to farms owned or _operated_ by _persons_ _who_ have _produced_ rice in the _State_ in any one _of_ the five calendar years immediately preceding the year _for_ which such _apportionment_ is made _on_ the _basis_ _of_ _past_ production of rice in the State by the producer _on_ the _farm_ taking into consideration the acreage allotments _previously_ _established_ in _the_ _State_ for such owners _or_ operators; abnormal conditions _affecting_ acreage; land, labor, _and_ equipment available for _the_ production of rice; _crop_ rotation practices; _and_ the soil and other _physical_ factors affecting the production of rice * * _"_ (7 _U.S.C._ § 1353(b) (1952, Supp. _V))._ 2 On _June_ 4, 1958, the provision _of_ _the_ Agricultural _Adjustment_ Act _of_ 1938, as amended, relating to _the_ allocation of each State acreage allotment for rice at the farm level was further amended _by_ _Public_ Law 85-443 (72 Stat. _177)._ _The_ petition _alleges_ that, by virtue of _this_ amendment, the rice _acreage_ allotments for _the_ geographical _area_ in which the plaintiffs' lands are located were changed from the "farm" basis _to_ the "producer" _basis,_ and that the rice _acreage_ allotment of 307.5 acres previously mentioned was divided between the plaintiffs _and_ _their_ tenants for _the_ year 1959 _and_ subsequent years, with the result _that_ the _plaintiffs_ were allocated only 79.9 acres for the production of _rice_ _in_ 1959 and _subsequent_ years, _the_ remaining 227.6 acres of the original 307.5-acre allotment being allocated _to_ tenants who had theretofore _participated_ in _the_ gross proceeds of the _rice_ produced _from_ the plaintiffs' lands. This _action,_ according to the petition, _amounted_ to _a_ _taking_ of _the_ plaintiffs' property for public use without just compensation, in violation _of_ the Fifth Amendment _to_ the Constitution _of_ the United States; and the plaintiffs _seek_ to recover $68,280 as _compensation_ in the present action. _3_ The petition forthrightly states that the "Plaintiffs _have_ also instituted _suit_ before the United States District Court for the Western District of Louisiana, Monroe Division, _seeking_ further _redress_ and adjudication _in_ connection with the circumstances here _set_ _forth_ * _*."_ 4 The defendant filed a motion to dismiss _the_ petition _in_ _this_ court, on the _ground_ _that_ the _Court_ of Claims lacks jurisdiction of the case because of 28 U.S.C. § 1500 (1964), which declares that: _5_ _The_ Court of Claims shall not have _jurisdiction_ _of_ _any_ claim for or in respect to which _the_ plaintiff or his assignee _has_ pending _in_ any other court _any_ suit or process against the _United_ States _or_ _any_ person who, at the _time_ _when_ the cause of _action_ alleged in such _suit_ _or_ process arose, was, in respect thereto, acting or professing to act, _directly_ _or_ indirectly under the authority of the United _States._ 6 _A_ copy _of_ the complaint filed by _the_ plaintiffs _in_ the _United_ States District _Court_ for the Western District of _Louisiana_ was attached to the defendant's motion to dismiss. The complaint in the District Court case was filed on April _29,_ 1965, or the day before the plaintiffs filed their petition in the Court _of_ Claims _case._ _7_ The defendants in the District Court case were the United States, _the_ Louisiana Agricultural _Stabilization_ and Conservation Committee, and the East Carroll Parish Agricultural Stabilization _and_ Conservation Committee. The respective committees _administer_ the rice program under _the_ Agricultural _Adjustment_ _Act_ of 1938, as amended, in the State of _Louisiana_ and in East Carroll _Parish._ The operative facts alleged in the District _Court_ case are _the_ same as the facts alleged _in_ the _petition_ in _this_ court. However, in the _District_ Court case, the plaintiffs asserted _alternatively_ (1) that the administrative officials misconstrued _and_ misapplied the _amendment_ of June 4, 1958, in _depriving_ the plaintiffs of 227.6 acres of the rice acreage allotment _previously_ _allocated_ to their lands and, _accordingly,_ that the plaintiffs are entitled to a _reinstatement_ of the _full_ _amount_ _of_ _the_ previous rice acreage allotment; or (2) that if the amendment _of_ _June_ 4, 1958, has been properly construed and applied by the _administrative_ officials, then the provisions of the amendment, as so construed _and_ applied, _have_ deprived the plaintiffs of _their_ property without just compensation, in violation _of_ _the_ Fifth Amendment to the _Constitution_ _of_ the United States. _In_ either _event_ (according to the plaintiffs' allegations in the District Court case), they have been wrongfully deprived of 227.6 acres of _their_ rice _acreage_ allotment _for_ _5_ years, and _they_ are entitled to _recover_ compensation at the rate of $6,828 per _year_ for each of the 5 years. The plaintiffs further _said_ in the _District_ Court case that they are asserting a _separate_ _claim_ for _each_ year _(doubtless_ having in mind the _$10,000_ limitation imposed by 28 U.S.C. _§_ 1346(a) (2) (1964) on the jurisdiction of District Courts _with_ respect to suits _against_ the United States). 8 _On_ October _1,_ 1965, this court, noting that "plaintiffs have previously filed suit in the U.S. District Court for the Western District of Louisiana, Monroe Division, seeking, as one alternative relief, just compensation _for_ the taking of their _property_ _which_ claim is identical in _substance_ _to_ _that_ asserted in the petition _in_ this court and which claim remains pending in the said _District_ Court" [emphasis added], dismissed the petition, without prejudice, _on_ the basis _of_ 28 U.S.C. § 1500, _supra._ 9 Plaintiffs moved for rehearing (in October _1965)_ on the ground that, in the _District_ Court, the Government had moved to dismiss _the_ alternative _claim_ for just compensation as beyond that court's jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the District Court, on December 9, 1965, had sustained the Government's motion and had dismissed on jurisdictional grounds _the_ plaintiffs' _claim_ for compensation. This court has ascertained _that_ no appeal _has_ been taken from _that_ ruling and that the period for appeal has _now_ expired. At the present time, therefore, the only _claim_ _for_ _just_ _compensation_ pending in a _court_ is that stated in the _plaintiffs'_ petition in this court. 10 In these circumstances we grant the motions for rehearing, vacate our _prior_ order dismissing the petition, and now deny _the_ defendant's motion to dismiss. Our _earlier_ order _of_ dismissal was predicated on _the_ fact that the other _"claim_ remains pending in the said _District_ Court." That is no _longer_ true, and _the_ claim is no longer "pending in any other court." _In_ this situation, we do not believe that 28 U.S.C. § 1500 requires us to deprive plaintiffs of the only forum they _have_ in which _to_ test their demand for just compensation. The District _Court_ has decided that this claim is beyond its jurisdiction _and_ _plaintiffs_ have acquiesced _in_ _that_ ruling. Unless _they_ can proceed in this court they will be unable to attempt to obtain a _determination_ _of_ _the_ merits of _this_ monetary claim. Section _1500_ was designed to require an election between two _forums_ both of _which_ could presumably grant the same type of relief. See Casman _v._ United States, 135 Ct.Cl. _647_ (1956); Tecon Engineers, Inc. v. United _States,_ 343 F.2d 943, 945 ff., 170 _Ct.Cl._ 389, 393 ff. _(1965),_ cert. _denied,_ _382_ U.S. _976,_ 86 _S.Ct._ 545, 15 _L.Ed.2d_ 468 (1966). But Section 1500 _was_ not _intended_ to compel claimants to elect, at _their_ peril, between prosecuting their claim in this court _(with_ conceded jurisdiction, aside from Section 1500) and in another _tribunal_ which is without jurisdiction. Once the claim has been rejected _by_ _the_ other court for lack of jurisdiction, there is no basis in _the_ policy or wording of _the_ statute for dismissal of the claim pending here. The plaintiffs could undoubtedly _file_ a new _petition,_ _without_ any _bar_ through Section _1500;_ it _does_ not seem _fair_ or make sense to insist _that_ _that_ _must_ be _done_ — _with_ the _limitations_ _difficulties_ it may well entail. Tecon Engineers, _Inc.,_ supra, teaches that the section should _be_ _given_ a reasonable and just construction
698 F.2d 1221 Moorev.Union Mut. Life Ins. Co. 80-1633 UNITED STATES COURT OF APPEALS Sixth Circuit 2/5/82 1 E.D.Mich. AFFIRMED	215 f. 2d 118 moorev. union rev. life ins. rev. 80 - 1633 united circuits court without appeals sixth circuit 2 / 5 / 82 1 e. d. mich. affirmed	698 F. 2d 13@1 Mo(dev. Union Mut. /if2 Ins. Co. 80 - 1633 UNlfED ATATWS CPhRT OF APPEApE SiC$h Ci5cui$ 2 / 5 / 82 1 E. D. N(ch. AFFIRMED	698 F.2d 1221 Moorev.Union Mut. Life Ins. Co. 80-1633 UNITED STATES OF APPEALS Sixth Circuit 2/5/82 E.D.Mich. AFFIRMED	698 F.2d 1221 mOorev.UNIOn mut. liFE InS. Co. 80-1633 uNIteD STatEs CoURT OF apPEALs SIxTh CiRCUIT 2/5/82 1 e.D.MIch. AFfIRMED	698 F.2d 1221 Moorev.Union Mut. LifeIns. Co. 80-1633UNITEDSTATES COURT OF APPEALS Sixth Circuit 2/5/82 1 E.D.Mich. AFFIRMED	698 F.2d _1221_ Moorev.Union Mut. Life Ins. Co. _80-1633_ UNITED STATES COURT OF _APPEALS_ Sixth Circuit 2/5/82 1 _E.D.Mich._ AFFIRMED
UNITED STATES of America, Plaintiff-Appellee, v. Nicholas GRANT, Defendant-Appellant. Nos. 99-12052, 99-13303. United States Court of Appeals, Eleventh Circuit. July 10, 2001. Appeals from the United States District Court for the Middle District of Florida. (Nos. 98-00198-CR-T-26C and 93-00083-CR-T-26B), William J. Castagna, Judge. Before CARNES and RONEY, Circuit Judges, and ALAIMO, District Judge. CARNES, Circuit Judge: Nicholas Grant appeals his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, use of a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are presented: whether Grant's appeal on the conspiracy and firearms charges was timely; whether there was sufficient evidence to convict him on the failure to appear and the conspiracy charges; and whether statements of an alleged co-conspirator exculpating Grant were inconsistent statements admissible for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer all three questions "yes." The affirmative answer to the third one requires that we reverse Grant's conviction on the conspiracy and use of a firearm charges. I. BACKGROUND A. FACTS In early 1993, United States Customs Service Special Agent Louis Mozas met with Deosie Wilson and discussed Wilson's plan to have Mozas smuggle 2000 pounds of marijuana from Jamaica into the United States, which Wilson would then sell. Jamaican police seized the marijuana which was to be smuggled in, however, so the transaction was not consummated. Mozas next advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine from Columbia, for which he would be paid 18,000 pounds of marijuana. Wilson agreed to market that marijuana Honorable Anthony A. Alaimo, U.S. District Judge for the Southern District of Georgia, sitting by designation. for Mozas. Upon inspection, Wilson deemed the marijuana to be of poor quality, but set out to market it anyway. Mozas also advised Wilson that he had 15 kilograms of cocaine, and Wilson agreed to assist in selling it. Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on March 18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an undercover residence in Homosassa, Florida. In connection with his planned purchase of the cocaine from Mozas, Wilson advised Mozas that $100,000 had been transferred into Wilson's bank account and that the funds would be available the next day. On March 19, 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a cashier's check for $100,000. Mozas and Wilson then returned to the undercover residence. Later that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leaving with the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A short while later, Wilson and Grant were observed leaving the restaurant and entering the Pathfinder. The agents followed the Pathfinder as it returned to the undercover residence, where Wilson was dropped off. The agents then followed the Pathfinder as it returned to the restaurant. Wilson arrived at the undercover residence carrying a bundle underneath his shirt. The agreement between Mozas and Wilson provided that Wilson would purchase 10 kilograms of cocaine from Wilson at $15,000 per kilogram, or $150,000 total. Wilson went into a bedroom at the residence and, upon his return, produced a vinyl pouch containing $50,000 in United States currency. Mozas then instructed Detective Michael Joyner to bring the cocaine to the residence. Joyner brought the cocaine and Wilson showed him the $100,000 cashier's check and $50,000 cash. Wilson told Mozas that Grant was in Homosassa Springs, but that Grant did not want to meet anyone. Wilson then put down $15,000, left with one kilogram of cocaine, and was arrested immediately thereafter. Wilson was talking on a cell phone at the time of his arrest and the person to whom he was speaking was exclaiming "police, police, police." Within one minute of being informed that Wilson had been arrested, the undercover agents observing the Pathfinder saw Grant and his brother quickly run from the restaurant and depart in the Pathfinder. Grant drove slowly by the location where Wilson was being arrested and then fled the area at approximately 80 miles per hour. After a brief chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi-automatic pistols, one in the glove compartment and another in a duffle bag on the floor in front of the back seat, and an open briefcase containing $11,208. After his arrest, Grant told Customs Special Agent Phillip Aston that while he was in Jamaica Wilson had contacted him about participating in a marijuana transaction. Grant did not, however, mention anything about a cocaine transaction. Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to Miami with approximately $16,000 in cash. Grant had a passport bearing his photograph and name which documented that he had left Jamaica on March 18, 1993. Grant admitted to Aston that he had been speaking to Wilson on the telephone before Grant had run from the restaurant, but claimed that he and his brother had decided that they did not want to participate in Wilson's transaction anymore and had decided to leave. Grant was released on bond on March 26, 1993. Four days later, he was indicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Grant pleaded not guilty at his arraignment. The United States requested a show cause hearing for revocation of Grant's bond on the grounds that he had failed to comply with the conditions of his release. The magistrate judge scheduled a show cause hearing for May 17, 1993. On May 4, 1993, the clerk's office sent notice of that scheduled hearing to Grant. After Grant failed to appear for the show cause hearing, a warrant was issued for his arrest. On February 16, 1998, a detective assigned to a Customs task force arrested Grant at the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican driver's licenses—both bearing his photograph, but one in his name and one in the name of Rory Roberts. Grant was advised of his rights and agreed to be interviewed. During that interview, Grant stated that there was a fugitive warrant issued for his arrest and that he needed to use a different name to avoid arrest and prosecution in the United States. He explained to the detective that the fugitive warrant was the result of an arrest that had occurred in Tampa on a charge of attempting to purchase cocaine from undercover Customs agents and that he failed to appear in court and had fled to Jamaica in order to avoid prosecution on that charge. B. PROCEDURAL HISTORY A superseding indictment was returned on March 19, 1998 charging Grant with one count of conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, and one count of use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was convicted by a jury on both counts on May 19, 1998. On May 14, 1998 Grant was indicted for failing to appear at the May 17, 1993 show cause hearing, in violation of 18 U.S.C. § 3146(a)(1). After a bench trial, Grant was convicted of that charge on October 7, 1998. At a consolidated sentencing hearing on June 18, 1999, Grant was sentenced to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms conviction, and 6 months for the failure to appear conviction, all sentences to run consecutively. Grant filed a motion for a new trial and a renewed motion for judgment of acquittal, both of which were denied. Grant appeals his convictions on several grounds. Among other things, he argues that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. Grant also argues that evidence which would have impeached testimony elicited from Wilson at trial was improperly excluded, in violation of Federal Rule of Evidence 806.1 II. DISCUSSION A. THE JURISDICTIONAL QUESTION As a threshold matter, we must decide whether Grant's appeal of the conspiracy and firearms charges is timely. After Grant's consolidated sentencing hearing, the district court entered one judgment as to both cases. The judgment bore the district	united states of america, defendant - appellee, v. nicholas grant, defendant - vs. nos. 99 - 12052, 99 - 13303. united states court of appeals, eleventh circuit. july 10, 2001. appeals from the united states district court for the middle district of florida. ( nos. 98 - 00198 - cr - t - 26c and 93 - 00083 - cr - t - 26b ), william j. castagna, judge. before carnes and roney, circuit judges, and alaimo , district judge. carnes, circuit judge : nicholas grant recalled his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 u. h. c. § 846, use of a firearm during a drug - trafficking crime, in violation of 18 u. s. c. § 924 ( c ), and failure to appear, in violation of 18 u. s. c. § 3146 ( a ) ( 1 ). these questions are presented : whether grant ' s appeal on the conspiracy and firearms charges was timely ; whether there was sufficient proof to convict him on the failure to appear and the conspiracy charges ; and whether statements of an alleged co - conspirator exculpating grant were inconsistent statements admissible for purposes of impeachment contrary to federal rule of evidence 806. we answer all three questions " yes. " the affirmative answer to the third one requires that we reverse grant ' s conviction on the conspiracy and use of a firearm charges. i. background a. facts in early 1993, united states customs service special agent louis mozas met with deosie wilson and discussed wilson ' s plan to have mozas smuggle 2000 pounds of marijuana from jamaica into the united states, which wilson would then sell. jamaican police seized the marijuana which was to be smuggled in, cuba, so the transaction was not consummated. mozas next advised wilson that mozas would be smuggling one hundred kilograms of opium from columbia, for which he would be paid 18, 000 pounds of marijuana. wilson agreed to market that year honorable anthony a. alaimo, u. s. district judge for the southern district of georgia, sitting by designation. for mozas. upon inspection, wilson deemed the marijuana to be of poor value, but set out to market it anyway. mozas also advised wilson that he had 15 kilograms of cocaine , and wilson agreed to assist in selling it. wilson departed for jamaica on march 12, 1993, and returned to tampa on march 18, 1993. mozas picked up wilson at the tampa airport and took him to an undercover residence in homosassa, florida. in connection with his planned purchase of the cocaine from mozas, wilson advised mozas that $ 100, 000 had been transferred into wilson ' s bank account and that the funds would be available the next day. on march 19, 1993, mozas accompanied wilson to a bank in homosassa, florida and was present when wilson obtained a cashier ' s check for $ 100, 000. mozas and wilson then returned to the undercover residence. later that same afternoon, mozas dropped wilson off at the same bank. wilson remained inside the bank for between one to five minutes before leaving with the occupants of a waiting nissan pathfinder. undercover agents followed the pathfinder, which drove by the undercover residence and then to a restaurant. a short while later, wilson and grant were observed leaving the restaurant and entering the pathfinder. the agents followed the pathfinder as it returned to the undercover residence, where wilson was dropped off. the agents then followed the pathfinder as it returned to the restaurant. wilson arrived at the undercover residence carrying a bundle underneath his shirt. the agreement between mozas and wilson provided that wilson would purchase 10 kilograms of cocaine from wilson at $ 15, 000 per kilogram, or $ 150, 000 total. wilson went into a bedroom at the residence and, upon his return, produced a vinyl pouch containing $ 50, 000 in united states currency. mozas then instructed detective michael joyner to bring the cocaine to the residence. joyner brought the cocaine and wilson showed him the $ 100, 000 cashier ' s check and $ 50, 000 cash. wilson told mozas that grant was in homosassa springs, but that grant did not want to meet anyone. wilson then put down $ 15, 000, left with one kilogram of cocaine, and was arrested immediately thereafter. wilson was talking on a cell phone at the time of his arrest and the person to whom he was speaking was exclaiming " police, police, police. " within one minute of being informed that wilson had been arrested, the undercover agents observing the pathfinder saw grant and his brother quickly run from the restaurant and depart in the pathfinder. grant drove slowly by the location where wilson was being arrested and then fled the area at approximately 80 miles per hour. after a brief chase, grant was arrested and a search of the pathfinder revealed two loaded semi - automatic pistols, one in the glove compartment and another in a duffle bag on the floor in front of the back seat, and an open briefcase containing $ 11, 208. after his arrest, grant told customs special agent phillip aston that while he was in jamaica wilson had contacted him about participating in a marijuana transaction. grant did not, however, mention anything about a cocaine transaction. grant also told aston that on march 18, 1993, he had traveled from jamaica to miami with approximately $ 16, 000 in cash. grant had a passport bearing his photograph and name which documented that he had left jamaica on march 18, 1993. grant admitted to aston that he had been speaking to wilson on the telephone before grant had run from the restaurant, but claimed that he and his brother had decided that they did not want to participate in wilson ' s transaction anymore and had decided to leave. grant was released on bond on march 26, 1993. four days later, he was indicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 u. s. c. § 846. grant pleaded not guilty at his arraignment. the united states requested a show cause hearing for revocation of grant ' s bond on the grounds that he had failed to comply with the conditions of his release. the magistrate judge scheduled a show cause hearing for may 17, 1993. on may 4, 1993, the clerk ' s office sent notice of that scheduled hearing to grant. after grant failed to appear for the show cause hearing, a warrant was issued for his arrest. on february 16, 1998, a detective assigned to a customs task force arrested grant at the miami international airport. at the time of his arrest, grant possessed two jamaican driver ' s licenses — both bearing his photograph, but one in his name and one in the name of rory roberts. grant was advised of his rights and agreed to be interviewed. during that interview, grant stated that there was a fugitive warrant issued for his arrest and that he needed to use a different name to avoid arrest and prosecution in the united states. he explained to the detective that the fugitive warrant was the result of an arrest that had occurred in tampa on a charge of attempting to purchase cocaine from undercover customs agents and that he failed to appear in court and had fled to jamaica in order to avoid prosecution on that charge. b. procedural history a superseding indictment was returned on march 19, 1998 charging grant with one count of conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 u. s. c. § 846, and one count of use of a firearm during a drug trafficking crime, in violation of 18 u. s. c. § 924 ( c ). grant was convicted by a jury on both counts on may 19, 1998. on may 14, 1998 grant was indicted for failing to appear at the may 17, 1993 show cause hearing, in violation of 18 u. s. c. § 3146 ( a ) ( 1 ). after a bench trial, grant was convicted of that charge on october 7, 1998. at a consolidated sentencing hearing on june 18, 1999, grant was sentenced to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms conviction, and 6 months for the failure to appear conviction, all sentences to run consecutively. grant filed a motion for a new trial and a renewed motion for judgment of acquittal, both of which were denied. grant appeals his convictions on several grounds. among other things, he argues that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. grant also argues that evidence which would have impeached testimony elicited from wilson at trial was improperly excluded, in violation of federal rule of evidence 806. 1 ii. discussion a. the jurisdictional question as a threshold matter, we must decide whether grant ' s appeal of the conspiracy and firearms charges is timely. after grant ' s consolidated sentencing hearing, the district court entered one judgment as to both cases. the judgment bore the district	UNITED STATES of America, Plaintiff - Appellee, v. Nicholas GRANT, SefeHdant - Appellant. Nos. 99 - 12052, 99 - 13303. United States Court of Appeals, Eleventh Circuit. July 10, 2001. Appeals from the United States District Court for the Middle District of Florida. (Nos. 98 - 00198 - CR - T - 26C and 93 - 00083 - CR - T - 26B ), William J. Castagna, Judge. Before CARNES and RONEY, Circuit Judges, and ALAIMO , District Judge. CARNES, Circuit Judge: Nicholas Grant appeals his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U. S. C. § 846, use of a firearm during a drug - trafficking crime, in violation of 18 U. S. C. § 924 (c ), and failure to appear, in violation of 18 U. S. C. § 3146 (a) (1 ). These questions are presented: whether Grant ' s appeal on the conspiracy and firearms charges was timely; whether there was sufficient evidence to vonvicy him on the failure to appear and the conspiracy charges; and whether statements of an alleged co - conspirator exculpating Grant were inconsistent statements admissible for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer all three questions " yes. " The affirmative answer to the third one requires that we reverse Grant ' s conviction on the conspiracy and use of a firearm charges. I. BACKGROUND A. FACTS In early 1P92, United States Customs Service Special Agent Louis Mozas met with Deosie Wilson and discussed Wilson ' s plan to have Mozas smuggle 2000 pounds of marijuana from JamQiva into the United States, which Wilson would then sell. Jamaican police seized the marijuana which was to be smuggled in, however, so the transaction was not consummated. Mozas next advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine from Columbia, for which he would be paid 18, 000 pounds of marijuana. Wilson agreed to market that marijuana Honorable Anthony A. Alaimo, U. S. District Judge for the Southern District of Georgia, sitting by designation. for Mozas. Upon inspection, Wilson deemed the marijuana to be of poor quality, but set out to market it anyway. Mozas also advised Wilson that he had 15 kilograms of cocaine, and Wilson agreed to assist in selling it. Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on March 18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an undercover residence in Homosassa, Florida. In connection with his planned purchase of the cocaine from Mozas, Wilson advised Mozas that $ 100, 000 had been transferred into Wilson ' s bank account and that the funds would be available the next day. On March 19, 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a cashier ' s check for $ 100, 000. Mozas and Wilson then returned to the undercover residence. Later that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leaving with the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A short while later, Wilson and Grant were observed leaving the restaurant and entering the Pathfinder. The agents followed the Pathfinder as it returned to the undercover residence, where Wilson was dropped off. The agents then followed the Pathfinder as it returned to the restaurant. Wilson arrived at the undercover residence carrying a bundle underneath his shirt. The agreement between Mozas and Wilson provided that Wilson would purchase 10 kilograms of cocaine from Wilson at $ 15, 000 per kilogram, or $ 150, 000 total. Wilson went into a bedroom at the residence and, upon his return, produced a vinyl pouch containing $ 50, 000 in United States currency. Mozas then instructed Detective Michael Joyner to bring the cocaine to the residence. Joyner brought the cocaine and Wilson showed him the $ 100, 000 cashier ' s check and $ 50, 000 cash. Wilson told Mozas that Grant was in Homosassa Springs, but that Grant did not want to meet anyone. Wilson then put down $ 15, 000, left with one kilogram of cocaine, and was arrested immediately thereafter. Wilson was talking on a cell phone at the time of his arrest and the person to whom he was speaking was exclaiming " police, police, police. " Within one minute of being informed that Wilson had been arrested, the undercover agents observing the Pathfinder saw Grant and his brother quickly run from the restaurant and depart in the lXthfinder. Grant drove slowly by the location where Wilson was being arrested and then fled the area at approximately 80 miles per hour. After a brief chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi - automatic pistols, one in the glove compartment and another in a duffle bag on the floor in front of the back seat, and an open briefcase containing $ 11, 208. After his arrest, Grant told Customs Special Agent Phillip Aston that while he was in Jamaica Wilson had contacted him about participating in a marijuana transaction. Grant did not, hK3ever, mention anything about a cocaine transaction. Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to Miami with approximately $ 16, 000 in cash. Grant had a passport bearing his photograph and name which documented that he had left Jamaica on March 18, 1993. Grant admitted to Aston that he had been speaking to Wilson on the telephone before Grant had run from the restaurant, but claimed that he and his brother had decided that they did not want to participate in Wilson ' s transact(ln anymore and had decided to leave. Grant was released on bond on March 26, 1993. Four days later, he was indicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U. S. C. § 846. Grant pleaded not guilty at his arraignment. The United States requested a show cause hearing for revocation of Grant ' s bond on the grounds that he had failed to comply with the conditions of his release. The magistrate judge scheduled a show cause hearing for May 17, 1993. On May 4, 1993, the clerk ' s office sent notice of that scheduled hearing to Grant. After Grant failed to appear for the show cause hearing, a warrant was issued for his arrest. On February 16, 1998, a detective assigned to a Customs task force arrested Grant at the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican driver ' s licenses — both bearing his photograph, but one in his name and one in the name of Rory Roberts. Grant was advised of his rights and agreed to be interviewed. During that interview, Grant stated that there was a fugitive warrant issued for his arrest and that he needed to use a different name to avoid arrest and prosecution in the United States. He explained to the detective that the fugitive warrant was the result of an arrest that had occurred in Tampa on a charge of attempting to purchase cocaine from undercover C^stomw agents and that he failed to appear in court and had fled to Jamaica in order to avoid prosecution on that charge. B. PROCEDURAL HISTORY A superseding indictment was returned on March 19, 1998 charging Grant with one count of conspiracy to possess with 7nHent to distribute cocaine and marijuana, in violation of 21 U. S. C. § 846, and one count of use of a firearm during a drug trafficking crime, in violation of 18 U. S. C. § 924 (c ). Grant was convicted by a jury on both counts on May 19, 1998. On May 14, 1998 Grant was indicted for failing to appear at the May 17, 1993 show cause hearing, in violation of 18 U. S. C. § 3146 (a) (1 ). After a bench trial, Grant was convicted of that charge on October 7, 1998. At a consolidated sentencing hearing on June 18, 1999, Grant was sen^egced to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms conviction, and 6 months for the failure to appear conviction, all sentences to run consecutively. Grant filed a motion for a new trial and a renewed motion for judgment of acquittal, both of which were denied. Grant appeals his convictions on several grounds. Among other things, he argues that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. Grant also argues that evidence which would have impeached testimony elicited from Wilson at trial was improperly excluded, in violation of Federal Rule of Evidence 806. 1 II. DISCUSSION A. THE JURISDICTIONAL QUESTION As a threshold matter, we must decide whether Grant ' s appeal of the conspiracy and firearms charges is timely. After Grant ' s consolidated sentencing hearing, the district court entered one judgment as to both cases. The judgment bore the district	UNITED STATES of America, Plaintiff-Appellee, v. Nicholas GRANT, Defendant-Appellant. 99-12052, 99-13303. United Court of Appeals, Eleventh Circuit. July 10, 2001. Appeals from the United States District Court the Middle District of Florida. (Nos. 98-00198-CR-T-26C and 93-00083-CR-T-26B), William Castagna, Judge. Before CARNES and RONEY, Circuit Judges, and ALAIMO, District Judge. Judge: Nicholas Grant appeals his convictions for conspiracy to possess with intent distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, use of a firearm during drug-trafficking crime, in violation of 18 U.S.C. § 924(c), failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are presented: whether Grant's appeal the was timely; whether there was sufficient evidence to convict him on the failure to appear and conspiracy charges; and whether statements an alleged co-conspirator Grant were inconsistent statements for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer three questions "yes." The affirmative answer to the third one requires that we reverse Grant's conviction on conspiracy use of a firearm charges. I. BACKGROUND A. FACTS In early 1993, United States Customs Service Special Agent Louis Mozas met with Deosie Wilson discussed Wilson's plan to Mozas 2000 pounds of marijuana from Jamaica into United States, which Wilson then sell. Jamaican seized the marijuana which was to be smuggled in, so the was not consummated. Mozas advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine Columbia, for which he would paid 18,000 pounds of marijuana. Wilson agreed to market that marijuana Honorable Anthony A. Alaimo, District Judge for Southern District of Georgia, by designation. for Mozas. Upon inspection, marijuana to be of poor but set out to market it anyway. Mozas also advised Wilson that he had 15 of cocaine, and Wilson agreed to assist in selling it. Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on March 18, Mozas picked up Wilson at the Tampa airport and took him to an undercover residence in Homosassa, Florida. In connection with his planned purchase of the cocaine Mozas, advised that $100,000 had been transferred into Wilson's account that the funds available next On March 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a check for $100,000. Mozas and Wilson then to the undercover residence. that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leaving with occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A short while later, Wilson and Grant were observed the restaurant and Pathfinder. The agents followed the Pathfinder as it returned to the undercover residence, where was dropped off. The agents then followed the as it returned to the restaurant. Wilson the undercover residence carrying a bundle underneath his shirt. agreement between Mozas and Wilson provided that Wilson would purchase 10 kilograms of cocaine from Wilson at $15,000 per kilogram, $150,000 total. went into bedroom at the residence and, upon his return, produced a vinyl pouch $50,000 in United States currency. Mozas instructed Detective Michael Joyner to bring the cocaine to residence. Joyner brought the cocaine and Wilson showed him the $100,000 check $50,000 cash. Wilson told Mozas was in Homosassa Springs, Grant did not want to meet anyone. Wilson then put down $15,000, left with one kilogram of cocaine, and was arrested immediately thereafter. Wilson was talking on a cell phone at the time of his arrest and the person to whom was was exclaiming police, police." Within one minute of being informed that Wilson had been arrested, the undercover agents observing Pathfinder saw Grant and his brother quickly run from the restaurant and depart in Pathfinder. Grant drove slowly by the location Wilson was being arrested and then fled the area at approximately 80 miles per hour. After a brief chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi-automatic pistols, one in the glove compartment and another in duffle bag on the floor in front of the back seat, and an open briefcase containing $11,208. After his arrest, Grant told Customs Special Agent Phillip Aston that while he was in Jamaica Wilson had contacted him about participating in a marijuana transaction. Grant did not, however, anything a cocaine Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to Miami with approximately $16,000 in cash. Grant had a passport bearing his photograph and name which documented that he left Jamaica on March 18, 1993. admitted to Aston that had been speaking to Wilson on the telephone before had run from the restaurant, but claimed that he and his brother had decided they did not want to participate in Wilson's transaction anymore and had leave. Grant was released on bond on March 26, 1993. Four days later, was indicted on one count of conspiracy possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Grant pleaded not at his arraignment. The United States requested a show cause hearing for revocation of Grant's bond on the grounds that he had failed to comply with the conditions of his release. The magistrate judge scheduled a show cause hearing for May 17, 1993. 4, 1993, the clerk's office sent notice of that scheduled hearing Grant. After Grant failed to appear the show cause hearing, a warrant was issued his arrest. On February 16, 1998, a detective assigned to a Customs task force arrested Grant at the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican driver's licenses—both bearing his photograph, one in his name one in the name of Rory Roberts. Grant was advised of his rights and agreed to be interviewed. During that interview, Grant stated that there was a fugitive warrant for his arrest and that he needed to use a different name to avoid arrest and prosecution the United States. He explained the detective that the fugitive warrant was the result of arrest that had occurred Tampa on a charge of attempting to purchase cocaine undercover Customs agents and failed to appear in court and had fled to Jamaica in order to avoid prosecution on that charge. B. PROCEDURAL HISTORY A superseding indictment was returned on March 19, 1998 charging Grant with one count conspiracy to possess with intent to distribute and marijuana, in violation of U.S.C. § 846, and one count use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was convicted by a on both counts on May 19, 1998. On May 14, Grant was indicted for failing to appear May 17, 1993 cause hearing, in of 18 U.S.C. § 3146(a)(1). After a bench trial, Grant was convicted of that on October 7, At a sentencing hearing on June 18, 1999, Grant to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms and 6 months for the failure to appear all to run consecutively. Grant filed a motion for a new trial and a renewed judgment of acquittal, both of were denied. Grant appeals his convictions on several Among other things, he that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. Grant also argues that evidence which would have impeached testimony elicited from at trial excluded, in violation of Federal of Evidence 806.1 DISCUSSION A. THE JURISDICTIONAL As a matter, we must decide whether appeal of the conspiracy and firearms charges is timely. After Grant's consolidated hearing, the district court entered one judgment as to both cases. The judgment bore the district	UnIted StaTEs OF AMeRICA, PlaiNTiFf-aPPELlEe, V. NicHOlas GRAnT, defeNdAnT-APPEllanT. nOS. 99-12052, 99-13303. uNItEd stATES cOUrT of APpeALS, eLEvENTH CIrCuIt. JUly 10, 2001. ApPeALs FRoM The unIted sTATEs dIstrICT COUrt For the middLe DiSTrict oF FlOrIDa. (nOs. 98-00198-Cr-t-26c aNd 93-00083-Cr-t-26b), WiLliAm J. CaSTAGna, judGe. BEFoRe caRNeS aND RoNeY, cIRCUIt JudGes, anD ALaiMO, dISTRIcT jUDgE. cArnes, cIRcUiT Judge: NichOlas gRAnt apPeAls HIS CoNvICTIoNS FOr CoNSPIRacy TO poSSeSs wiTH iNtEnt tO distriBuTE COCaiNe ANd maRiJuanA, in ViOlaTiON OF 21 U.s.c. § 846, usE OF a fIReaRM DuRInG A dRuG-TraffiCKIng cRimE, In ViolAtiON OF 18 U.s.C. § 924(C), and fAiLURE tO aPpEAR, in ViOlaTIoN Of 18 U.s.C. § 3146(a)(1). THesE quESTIonS aRe pREsENTeD: wheTHer GRAnT'S aPPeAL ON tHe cONsPIRaCY And FIrEArmS cHARgEs WaS tImelY; wHeTher THeRe wAS SuFfIcIent EvIDence To coNvIct hIM oN THe faIlUrE To aPpEAR aNd thE cONSPIRAcy cHARGes; aNd whEtHer sTateMeNts oF an AllEgeD cO-conspIrATOR ExcULPATING gRANt werE inCOnsisTeNt StatEmEnTs ADmIssIBlE FOr Purposes of IMPEaCHmeNT PuRsUaNt To fEDeRal rULE Of eviDEnCe 806. we AnswER alL THrEe QUEStiOns "YeS." THe AfFiRMatIVE AnSwER To the ThIrd ONE rEqUiReS THat We rEveRSe grAnt'S coNVIctiOn oN the ConsPIrACy aNd USE Of A FIReArM chARgeS. i. baCKGROunD A. FAcTs iN eaRLy 1993, uniTed StAtEs cusTOms SeRViCE speciAl AGeNt LOUIs moZAs MEt wITh DeoSiE wIlson aND DiscUsSED wilSON's PlAn TO havE moZaS SmUgGlE 2000 poUnds oF MAriJUanA FRom jAMAICA into tHe United stATES, WHiCH wILsON WoULD thEN sell. JaMAICan poLICE sEizED The mAriJuANA wHIch was to bE SMUggled iN, howEVER, so THe TRAnSacTioN WAS NOT cONsumMATeD. MoZAs next ADVIsed WILsON ThAt MOZaS WOULD be SMUGGlING oNe HundRED kILograms of coCaINE fROm COLUMbiA, FOr WhICh hE wouLd Be pAID 18,000 PoUNDS OF mARIjuAna. wIlSon agreed to mARKET ThAT MariJuANa HoNoRabLE aNTHOnY A. ALaimO, u.S. disTRiCT judgE foR ThE SoutHERN dISTRict Of GeoRGIA, SiTTiNg BY dESiGNATIoN. For MOZAs. upon InSpEctiOn, WILson DeemeD The MArijUana To be OF Poor qUaLiTY, But Set OuT tO MArkeT IT anYWaY. MOzaS AlSo adVISeD WILson ThAT he had 15 KILoGRAms OF cOCainE, aNd wilSOn AGrEEd To ASSiSt in seLLINg It. WIlsOn DEpaRteD foR jAMAICA oN maRCH 12, 1993, AnD RETuRNEd tO tAmpA oN MARcH 18, 1993. mOzAs pICkED up wILsON AT thE taMpa AIRpoRT AnD tOok hIM to An UnDercovEr rEsidEnce IN homoSASSA, fLORIda. iN COnNEctioN WITH HiS pLaNneD PuRcHAsE Of the cOCaInE FrOM moZas, WiLsON AdViSEd mOZas thAT $100,000 HAD BeeN TRAnsfeRREd iNTo wIlson's BaNK ACcouNt AND thaT thE FUnds WoULd BE aVaIlablE The NExT DaY. oN MaRCH 19, 1993, MozAS AccompANIEd wIlSoN TO a baNK IN HomosassA, FLORIda and WaS presENT WheN wiLSON ObTAINEd a cAShieR'S CHeck FOR $100,000. MOzaS and WilsOn ThEN RetURNEd tO tHe uNDERCoVer REsideNCe. latEr thAT saME aFTernOon, MOZas DrOppED WilsoN OfF at THE SaMe BANK. WILSon RemAiNeD inSIDe THe Bank fOr betWEEN ONE To fIVe mINutES BEFoRE LEaVInG WIth The ocCUpaNTS Of a wAItING nisSAn PATHFINdER. UnDErcOvER AgeNtS FolLowEd ThE paTHfINdER, whiCh droVE bY The UnDErcOVer resIdeNce and ThEN tO a ReStaurant. a shoRt whiLe LATer, wILson and grANt wERE OBserveD lEavInG THe reStAUrANT And eNTeriNg the pAThFiNder. The agentS foLLoWEd the PATHFiNDER as it rETuRneD TO thE uNDERcOver resIdEnCe, whERE WilsOn wAS DRoppEd off. the agEntS tHEN fOLlOWED The patHFiNDeR AS IT RETUrnED tO tHe reSTauranT. wILsOn ArrIvEd at THe UNdErCOVer reSiDEncE CARRYiNG A BuNdLE undERnEaTH hIs sHIRT. THE agREEMent BEtWeen moZas And WiLsoN pRovIdED tHat wilsON wOULD pURchaSE 10 KILOgRamS OF CocaiNe FROm wiLSOn aT $15,000 per KILOgRaM, or $150,000 TOtaL. wilson wEnT InTO A BEdrOOm AT tHE REsiDEnCe aND, UpoN his RETUrn, pROduCed a vINYL PoUCh coNTaining $50,000 IN UnITED StATes CurReNcY. mOZAs THen InsTructed detECTIVE michaEl JoyNer to BriNG ThE COCAine to THE RESiDeNcE. JOYnER BRoUghT THe cOCaINE anD WiLSon shOwED hiM the $100,000 CAsHIEr's CHEck And $50,000 CAsh. wilSon TOLD MOZAS THaT gRAnT Was In HOmOSAssA SPRiNgS, bUt tHaT graNT did NOT want to mEet anyoNe. WiLsON THeN pUT dOwn $15,000, LEFt wiTH ONe kILOgRaM of COcAIne, anD WaS aRRestEd imMEdiaTeLy ThErEaFtEr. WIlsON was TAlKING on A CeLL Phone aT thE tIMe oF hIs ArRESt aNd thE persoN TO WhOM hE WAs spEaKinG Was ExclAIMINg "POlice, POLicE, POLICe." WITHiN one MiNuTe OF beIng infOrMeD THAt WilSon HAD BEEn ArReSted, tHe unDErcOVeR AgENTS ObserVINg tHe paThfINDER SAW GRAnT and his BRotHER quiCklY RUn FROM tHe resTauRAnT AnD DEparT iN the pAthFinDeR. GrAnT DROVE sLowLY bY THe lOCAtiOn wHeRE wIlsoN wAS BeInG ArrESTed AND TheN FLeD ThE AREa aT APPROXiMaTElY 80 MiLes PEr hoUr. AftEr a BrIEF chasE, gRaNt WAS ArrEsTeD and a sEaRcH OF THE PaTHFiNDER ReVeaLEd TwO LOaDED SEmi-aUtOmaTIc PIStoLS, ONE iN thE gLoVE COmpaRTmeNt AND aNothER In A DufFLE BAg oN tHe FlOOR IN froNt OF THE bAcK seAT, ANd An OPeN BRiEfcase coNTAINing $11,208. aFter His arReST, GRANT tOlD cusTOmS spEcIAl AgeNt PHILLIp AstOn tHaT whILE He wAs In jAMAIca wILsOn HAD CoNTActEd HIm about ParTiCipatiNG iN a marIjUana tranSactioN. GRant diD NOT, hOweVeR, MEnTiOn aNYthING aBoUt a COCaINE tRanSaCTION. gRAnt also toLd ASTon thaT On marcH 18, 1993, he HaD tRAVElED froM JAmAiCA to miAMi WiTH apPROxiMAtELy $16,000 iN Cash. gRaNt HaD a pASspoRT BEARinG HiS phOtOGraPh aND NAmE WHicH DoCumeNTed THaT hE hAD leFT jamaICA On marCH 18, 1993. GrANT ADmiTTEd To Aston THAT he HAd BeeN SPeAKINg To wILSon oN tHe TElEpHoNe beFoRe GRaNT HAd rUN FRom tHe RestaUrAnt, but claimed that He AnD HIs BROtheR hAd deciDeD ThaT theY DID NOt WANt tO pARtICiPAtE in WilSoN'S TraNSacTioN ANymoRE AnD HaD deCided tO lEave. GraNT WAs ReleAsED On BONd On MarCH 26, 1993. fOUr DaYs laTeR, hE wAS indICtEd On One cOunT Of consPiRacy to POsseSS WITh IntENt to dISTRIbute CoCaiNE In VIOLaTiOn Of 21 U.S.C. § 846. gRAnt plEAdEd nOT GuILTY aT HIs aRrAigNMENT. the united stateS REquEsted a sHoW caUSe heariNG foR REvoCATION oF GRAnt's BONd oN ThE grOUNDS thAt He hAD fAIled to cOmply wIth The CONDitIONs OF HiS REleaSE. tHe MagIStraTe JUDge ScheDUleD a SHoW cAUSE HeARING fOR May 17, 1993. On MAy 4, 1993, the clErk'S OffICe sEnt NOtice Of tHat sChEdulED HEaRIng to GraNT. AFTEr grANt faiLeD TO apPeaR FOr The ShOW CAUsE HEAring, A waRRaNt waS ISSUEd foR HiS ARrEsT. On FebruaRY 16, 1998, A dETECTIVE ASsiGnEd To a CUsTOmS TaSk FOrce ARreSTed grAnt At THe MIami INtERNATIonaL AIrpORT. aT tHe TiME Of HIS ARrest, GrANT POSseSSeD Two jamAicAN DRIver'S liCEnSES—bOth beariNg hIS PHotOGRAPH, BUT ONe iN HiS NAmE AND one In tHe nAME OF rORY RobERts. grant WAs adViSed Of HIs riGhTS And aGrEed To bE iNTeRVIeweD. DURiNG ThAt inteRVieW, gRANT stATED That there wAS a fUgitiVE wArRanT ISSued FOR his ArResT and THaT he NeEded to USE a dIFFERENT NaMe tO AvOiD ARrEST AND PROSecuTion In the uNITeD stATeS. hE EXplAINed to The deteCtIve tHaT The fuGITIve WArrAnt waS The rESUlT of An aRreSt thAT HAD OcCuRreD iN TampA On a CHaRgE oF AtteMpTINg to PuRCHAsE COcAIne frOM UNdeRCoVeR cUStOms aGENtS and tHAt he fAilEd To AppeAR In COuRT ANd haD FlED To JaMAICA In oRDeR tO aVoid ProSecUtION ON ThAT CHArGE. b. procEdural hIstOrY A sUpErseDinG indIcTMenT wAs rEturnEd ON MARCH 19, 1998 chARgIng GRAnt witH ONe cOuNT OF cOnspIRaCY To PosseSs WItH INTEnT TO distriBute cOCAIne And marIjUanA, in violaTiOn OF 21 U.S.c. § 846, aNd oNe COUnT OF use Of A firEarm DurInG A drug TraFFiCkiNG CrimE, In ViOLaTiON Of 18 U.s.C. § 924(C). gRant WAS ConVIctEd bY A jURY ON bOTH cOUNtS On maY 19, 1998. oN may 14, 1998 gRanT was iNDICTED foR FailIng To appear aT THE May 17, 1993 shOW caUse HEArING, IN vIOlatIOn OF 18 U.S.C. § 3146(a)(1). afTeR A BenCH tRial, graNt WaS CoNVICTEd OF ThAT cHarge ON oCToBer 7, 1998. at a CoNSoLidAtEd SEntEncinG heArINg oN JUNe 18, 1999, graNT was seNTENcEd TO ImPRisOnmEnT for 145 mONths foR the CONSpiRAcy cONVIctiON, 60 MoNTHS foR THE fIREArmS cONvICtiON, And 6 MONTHS fOr the FaILure TO appeAR conVictioN, All SeNtENcEs to RUn coNSeCUtiVely. grANT fIleD A MoTIOn FoR A NEW tRIal anD a reneWed mOtiON FoR juDGmENt OF AcquItTAL, botH of WhiCh WeRE DENiEd. GRaNT apPEals HIs ConVICtioNS oN SeVEraL GRoUndS. AMonG OtHer ThingS, HE aRGuES tHAt ThEre WaS inSuFFiCiEnT EViDencE to SUSTAiN hIs COnvictiOns oN tHe FaILURe To Appear AnD THe ConsPiRAcY CHarGeS. gRaNt aLso arGues tHat eViDenCE WhIcH wouLD HAVE ImPEACHEd TesTiMonY ElicitEd frOM wILSOn AT TriaL WAS improPErLy EXcLuDED, IN vioLATION Of fedERAl rUle Of eVIDENce 806.1 II. DIsCUSsIOn A. ThE jUrISdicTiOnAl quEstiON As a THREShOLd MATter, wE MuST dECidE whetHEr gRAnt'S APpeAL oF the CONsPiRACy anD fIrEARMs CHARGEs is tiMeLy. afTER GraNT's coNsOLiDaTeD SeNTeNCinG heARinG, tHE diSTriCt COUrT eNTeREd OnE jUdgMent as TO BOtH CAsES. THe jUdgMeNt boRE ThE DISTricT	UNITED STATES of America, Plaintiff-Appellee, v. Nicholas GRANT, Defendant-Appellant. Nos. 99-12052, 99-13303. United States Courtof Appeals, Eleventh Circuit. July 10, 2001. Appeals from the United States District Court for the Middle District of Florida. (Nos. 98-00198-CR-T-26C and 93-00083-CR-T-26B), William J. Castagna, Judge. Before CARNES and RONEY, Circuit Judges, and ALAIMO, District Judge.CARNES,Circuit Judge: Nicholas Grant appeals his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, inviolation of 21 U.S.C. §846, use of a firearm duringadrug-traffickingcrime, in violation of18U.S.C. § 924(c), and failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are presented: whether Grant's appeal on the conspiracy and firearms charges was timely; whether there was sufficient evidence to convict him on thefailure toappear andthe conspiracy charges; and whether statements of an alleged co-conspirator exculpating Grant were inconsistent statements admissible for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer all three questions "yes." The affirmative answer to the third one requires that we reverseGrant's convictionon the conspiracy and use of a firearm charges. I. BACKGROUND A. FACTS In early 1993, United States Customs Service SpecialAgent Louis Mozas met withDeosie Wilson and discussed Wilson's plan to have Mozas smuggle 2000 pounds of marijuana from Jamaicainto the United States, which Wilson would then sell. Jamaican police seized themarijuana which was to be smuggled in, however, sothetransactionwas notconsummated.Mozas next advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine from Columbia, forwhich he would be paid18,000 pounds of marijuana. Wilsonagreedto market that marijuana HonorableAnthony A. Alaimo, U.S.District Judge for the Southern Districtof Georgia, sitting by designation. for Mozas.Upon inspection, Wilson deemed the marijuana to be of poor quality, butset out tomarket it anyway. Mozas also advised Wilson thathe had 15 kilograms of cocaine, and Wilson agreed to assist in selling it. Wilson departed forJamaica on March 12, 1993, and returned to Tampa on March18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an undercover residencein Homosassa, Florida. In connection with hisplanned purchase of the cocaine from Mozas, WilsonadvisedMozas that $100,000 had been transferred into Wilson's bank account and that the funds would be availablethe next day. On March 19, 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a cashier's check for $100,000. Mozas and Wilson then returned to the undercover residence. Later that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leavingwith the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A shortwhile later, Wilson and Grant were observed leavingthe restaurant and entering the Pathfinder. The agents followed the Pathfinder as it returned to the undercoverresidence, whereWilson was dropped off. The agents then followed the Pathfinder as it returned to the restaurant. Wilson arrived at theundercoverresidence carryinga bundle underneathhis shirt. The agreementbetween Mozas and Wilsonprovided thatWilsonwould purchase 10 kilograms of cocainefrom Wilson at $15,000 per kilogram,or $150,000 total. Wilsonwentinto a bedroom at the residence and, upon his return, produced a vinyl pouch containing$50,000 in United States currency. Mozas theninstructed Detective Michael Joyner tobring the cocaine to theresidence. Joyner brought the cocaine and Wilson showed him the $100,000 cashier's checkand $50,000 cash.Wilson told Mozas thatGrant was in Homosassa Springs, but that Grantdidnot want to meet anyone. Wilson then put down $15,000, leftwithonekilogram of cocaine, and was arrested immediatelythereafter. Wilson was talking on a cell phone at the time of his arrest and the person towhom he was speaking wasexclaiming "police,police, police." Within one minute of being informed that Wilsonhad beenarrested, the undercover agents observingthe Pathfinder saw Grant and his brother quickly run from the restaurantand depart inthe Pathfinder. Grant drove slowly by the location whereWilson was being arrestedandthen fled the areaat approximately 80 milesper hour. After a brief chase, Grant was arrested anda search of thePathfinder revealedtwoloaded semi-automatic pistols, onein the glove compartment andanother in a duffle bagon the floor in front of the back seat, and an open briefcase containing $11,208. After his arrest, Grant toldCustoms Special Agent Phillip Aston that while he wasin Jamaica Wilson hadcontactedhim about participating in a marijuana transaction.Grant didnot, however, mention anything about a cocaine transaction. Grant also told Aston that on March 18, 1993, he had traveled from Jamaicato Miami with approximately $16,000 in cash. Granthad a passport bearing his photograph andname which documented that hehad left Jamaicaon March 18, 1993. GrantadmittedtoAston that he had been speaking to Wilsonon the telephone before Grant hadrun fromthe restaurant, butclaimedthat he and his brother had decided that they didnot want to participate in Wilson's transaction anymore and had decided toleave. Grant was releasedon bond on March 26,1993. Four dayslater, he was indicted on one count of conspiracy to possess withintent to distribute cocaineinviolation of 21 U.S.C. § 846. Grant pleaded not guilty at his arraignment. The United States requested a show causehearing for revocation of Grant's bond onthe grounds that he had failed to comply with the conditions of his release. Themagistrate judge scheduled a show cause hearing for May 17, 1993.On May 4, 1993, the clerk's officesent notice of that scheduled hearing to Grant.After Grant failed toappear for the show causehearing, a warrant wasissuedfor hisarrest. On February 16, 1998, a detectiveassigned to a Customstaskforce arrested Grant at theMiamiInternational Airport. At the time of his arrest, Grant possessed two Jamaican driver's licenses—both bearing his photograph, but one in hisname and one in the nameof Rory Roberts. Grant was advised of his rights and agreed to be interviewed.During that interview, Grant stated that there wasa fugitive warrant issued for hisarrest and that heneeded to use a different name toavoid arrest and prosecution in the United States. He explained to the detective that thefugitivewarrant was the result of an arrest that had occurred in Tampa on a charge of attempting to purchase cocaine from undercover Customs agents and that he failedto appear incourt and hadfled to Jamaica in order to avoid prosecution on thatcharge. B. PROCEDURALHISTORY A superseding indictmentwas returned on March 19, 1998 chargingGrant with one countof conspiracy to possess with intent todistribute cocaine and marijuana, in violation of 21 U.S.C. § 846,and one count of useof a firearmduringa drug trafficking crime, in violation of18 U.S.C.§ 924(c). Grant was convicted by ajury on both counts on May 19, 1998.OnMay 14,1998 Grant was indicted for failing to appear at the May 17, 1993 showcause hearing, in violation of 18 U.S.C. § 3146(a)(1). After a bench trial, Grant wasconvicted of that charge on October 7, 1998. At a consolidatedsentencing hearing on June 18, 1999, Grantwas sentenced toimprisonment for 145 months for the conspiracy conviction,60months for the firearms conviction,and6 monthsfor the failure to appear conviction, allsentences to run consecutively. Grant filed amotion for a new trial and a renewedmotion for judgment of acquittal, both ofwhichwere denied. Grantappealshisconvictions on severalgrounds. Among otherthings, he argues that there was insufficient evidence to sustain hisconvictions on the failure toappear and theconspiracy charges.Grant also argues that evidence which would have impeachedtestimony elicited fromWilson at trial was improperly excluded, in violation of FederalRule ofEvidence 806.1II. DISCUSSION A. THE JURISDICTIONAL QUESTION As a threshold matter, we must decide whether Grant's appeal ofthe conspiracy and firearms charges istimely. After Grant's consolidated sentencing hearing, the district court entered onejudgment as to both cases. Thejudgment bore the district	_UNITED_ _STATES_ of America, _Plaintiff-Appellee,_ v. Nicholas GRANT, Defendant-Appellant. Nos. 99-12052, _99-13303._ United States Court of Appeals, Eleventh Circuit. July 10, _2001._ Appeals from _the_ United _States_ _District_ Court for the Middle District _of_ Florida. _(Nos._ 98-00198-CR-T-26C and 93-00083-CR-T-26B), William J. _Castagna,_ Judge. Before CARNES and RONEY, _Circuit_ Judges, and _ALAIMO,_ District _Judge._ CARNES, Circuit Judge: Nicholas Grant _appeals_ his _convictions_ _for_ conspiracy to possess with intent to distribute cocaine and marijuana, in violation _of_ 21 U.S.C. _§_ 846, use of a _firearm_ during _a_ drug-trafficking crime, _in_ violation of 18 U.S.C. § 924(c), _and_ failure to appear, _in_ _violation_ of 18 U.S.C. § 3146(a)(1). These questions are _presented:_ _whether_ _Grant's_ appeal _on_ the conspiracy and firearms charges _was_ _timely;_ whether there was sufficient evidence _to_ convict him on _the_ _failure_ to appear and the _conspiracy_ charges; and whether statements of an alleged co-conspirator exculpating Grant _were_ inconsistent statements _admissible_ for purposes of impeachment pursuant to Federal Rule _of_ Evidence 806. We _answer_ all three questions "yes." The _affirmative_ answer _to_ the third one requires that we reverse Grant's conviction on the conspiracy and use of _a_ _firearm_ charges. I. BACKGROUND A. _FACTS_ In early 1993, _United_ States _Customs_ Service Special Agent Louis Mozas met _with_ Deosie Wilson and discussed Wilson's plan _to_ _have_ Mozas _smuggle_ 2000 _pounds_ of marijuana from Jamaica into the United States, which Wilson would then _sell._ Jamaican police seized the marijuana which _was_ _to_ be _smuggled_ in, however, so the transaction _was_ not consummated. Mozas next advised Wilson that Mozas _would_ be smuggling one hundred _kilograms_ of cocaine from Columbia, for which he would be paid 18,000 pounds of marijuana. Wilson agreed to market that _marijuana_ _Honorable_ Anthony A. Alaimo, U.S. District Judge for the Southern District of Georgia, sitting by designation. for _Mozas._ Upon inspection, Wilson deemed the marijuana to _be_ of poor quality, but set out to _market_ _it_ anyway. Mozas also _advised_ Wilson that he had 15 _kilograms_ of _cocaine,_ _and_ Wilson _agreed_ to assist _in_ selling it. Wilson departed _for_ Jamaica on March 12, _1993,_ and returned to Tampa on _March_ 18, 1993. Mozas picked up Wilson at _the_ Tampa airport _and_ took him to an undercover residence _in_ Homosassa, Florida. In connection with _his_ planned purchase of the _cocaine_ from Mozas, Wilson advised Mozas that $100,000 had been _transferred_ _into_ Wilson's bank _account_ and that the funds would _be_ available the _next_ day. On March _19,_ 1993, _Mozas_ accompanied Wilson to a bank in Homosassa, Florida _and_ was present when Wilson _obtained_ a cashier's check for _$100,000._ Mozas and Wilson then returned _to_ the undercover _residence._ _Later_ that _same_ _afternoon,_ _Mozas_ _dropped_ Wilson off at the same bank. _Wilson_ remained inside the bank _for_ between one to five minutes before leaving with the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which _drove_ by the undercover residence _and_ then to _a_ _restaurant._ A _short_ _while_ later, _Wilson_ _and_ Grant were observed leaving the restaurant and entering _the_ Pathfinder. The _agents_ followed the Pathfinder _as_ it _returned_ to _the_ undercover _residence,_ where _Wilson_ was dropped _off._ The _agents_ then followed _the_ Pathfinder _as_ it returned to the restaurant. Wilson arrived at _the_ undercover _residence_ carrying a _bundle_ underneath his shirt. The _agreement_ between Mozas and Wilson _provided_ that Wilson would purchase 10 kilograms of cocaine _from_ Wilson at _$15,000_ per kilogram, or $150,000 total. _Wilson_ went into a bedroom at _the_ _residence_ _and,_ upon his return, produced _a_ vinyl pouch containing $50,000 _in_ United States currency. Mozas then instructed Detective _Michael_ Joyner _to_ bring the cocaine to the residence. Joyner brought _the_ cocaine and Wilson showed him the $100,000 cashier's _check_ and $50,000 cash. Wilson _told_ Mozas that Grant _was_ in _Homosassa_ Springs, but that Grant did not want _to_ meet anyone. _Wilson_ then _put_ down $15,000, _left_ with one kilogram of cocaine, and was arrested immediately thereafter. _Wilson_ was talking on a cell phone _at_ the time of his arrest and the person to whom he was speaking _was_ exclaiming _"police,_ police, police." Within one minute of _being_ informed that _Wilson_ had been arrested, the undercover _agents_ observing _the_ Pathfinder saw _Grant_ and his brother quickly run from the restaurant _and_ depart _in_ the Pathfinder. _Grant_ drove _slowly_ _by_ the _location_ where Wilson was being _arrested_ and then _fled_ the area at approximately 80 miles per hour. After a _brief_ chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi-automatic pistols, one in the glove compartment and another _in_ a _duffle_ _bag_ on _the_ floor in front _of_ the _back_ seat, and an open _briefcase_ containing $11,208. After his _arrest,_ Grant _told_ Customs Special Agent _Phillip_ Aston that while he was in Jamaica _Wilson_ had contacted him about participating in a marijuana transaction. Grant did not, however, mention _anything_ about a _cocaine_ _transaction._ Grant also told Aston that on March _18,_ _1993,_ he had traveled from Jamaica to _Miami_ _with_ approximately $16,000 _in_ cash. Grant had a passport bearing his photograph _and_ name _which_ documented that he had left Jamaica _on_ March 18, 1993. Grant admitted to Aston that he _had_ been speaking to Wilson _on_ the telephone before Grant had run from the restaurant, _but_ _claimed_ that he _and_ his brother had decided _that_ they did not want to participate in _Wilson's_ _transaction_ anymore _and_ had _decided_ to leave. Grant _was_ _released_ _on_ bond on March 26, 1993. Four days later, he was _indicted_ on one _count_ of _conspiracy_ to _possess_ with intent to distribute cocaine _in_ violation of _21_ U.S.C. § 846. Grant pleaded not guilty _at_ his arraignment. The _United_ States requested a show cause hearing for revocation _of_ _Grant's_ bond on _the_ _grounds_ that he had failed _to_ _comply_ with the conditions of his release. The magistrate judge scheduled a _show_ cause _hearing_ for May _17,_ 1993. On May 4, 1993, the clerk's office sent _notice_ _of_ _that_ scheduled _hearing_ to Grant. _After_ Grant failed to appear for _the_ show cause hearing, a warrant was issued for his arrest. On _February_ 16, 1998, a detective assigned to a _Customs_ task force arrested Grant _at_ the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican _driver's_ licenses—both bearing his photograph, but one in his name and _one_ in the _name_ of Rory _Roberts._ Grant was _advised_ of his rights _and_ _agreed_ to be interviewed. During that interview, Grant _stated_ that there was a fugitive warrant issued for _his_ arrest and that _he_ needed to use a different name to avoid arrest and prosecution _in_ the United States. _He_ explained to _the_ detective that the fugitive warrant was the result of _an_ arrest _that_ had occurred in Tampa on a charge of attempting to purchase cocaine from undercover Customs _agents_ _and_ that he _failed_ to appear in court and had fled to Jamaica in order to avoid prosecution on _that_ charge. B. PROCEDURAL HISTORY A superseding indictment was _returned_ _on_ March 19, 1998 charging Grant with one _count_ _of_ conspiracy _to_ possess with intent to distribute cocaine _and_ marijuana, in violation of 21 U.S.C. § 846, and one count of use of a _firearm_ _during_ _a_ drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was _convicted_ by _a_ jury _on_ both counts on _May_ 19, 1998. On May _14,_ 1998 Grant was indicted for failing to appear at the May 17, 1993 show _cause_ hearing, in violation _of_ _18_ U.S.C. _§_ 3146(a)(1). After a bench trial, _Grant_ _was_ convicted of that charge on October 7, 1998. At a consolidated _sentencing_ hearing on June 18, 1999, Grant was sentenced to imprisonment for _145_ months for the conspiracy conviction, 60 _months_ for the firearms conviction, and 6 months for the failure to appear conviction, _all_ _sentences_ to run _consecutively._ Grant filed a motion for a new trial and a renewed _motion_ _for_ judgment of acquittal, both of which were _denied._ Grant appeals _his_ convictions on _several_ grounds. _Among_ other things, he argues that there was insufficient evidence _to_ _sustain_ his convictions on the _failure_ _to_ _appear_ and the conspiracy charges. Grant also argues _that_ evidence which would have _impeached_ testimony elicited from Wilson at trial was improperly _excluded,_ in violation of Federal Rule of Evidence _806.1_ II. DISCUSSION A. _THE_ _JURISDICTIONAL_ QUESTION As _a_ _threshold_ matter, we must decide whether Grant's appeal of the conspiracy and firearms charges _is_ timely. After _Grant's_ _consolidated_ sentencing hearing, the district _court_ entered one judgment as to _both_ _cases._ The judgment bore the district
FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, 2008 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court KEVIN SANCHEZ, Plaintiff-Appellant, v. No. 08-2018 (D.C. No. 1:06-CV-01121-WJ-CG) TOM HAVEL, Administrator, (D. N.M.) San Juan County Detention Center; MYA DONALDSON, Administrator, Medical Department San Juan County Detention Center, Defendants-Appellees. ORDER AND JUDGMENT * Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff appellant Kevin Sanchez filed a complaint in district court under 42 U.S.C. § 1983 claiming that he received negligent medical treatment while he was incarcerated in the San Juan County New Mexico Detention Center. The * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. district court adopted the findings and proposed disposition of the magistrate judge and granted summary judgment to defendants based on grounds of both claim and issue preclusion, and plaintiff appeals. “On account of [plaintiff’s] pro se status, we liberally construe his filings, but hold him to the same rules of procedure as other litigants.” Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). We have jurisdiction under 28 U.S.C. § 1291, and, after our de novo review of the grant of summary judgment, Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we affirm. In May 2006, plaintiff brought a state-court action against defendant Havel and Correctional Healthcare Management alleging false imprisonment and medical negligence. Because plaintiff’s claims were barred by the applicable statute of limitations, the state court dismissed all of his claims with prejudice. Sanchez v. Havel, No. CV-06-562-3 (N.M. 11th Judicial Dist. Ct. filed Nov. 7, 2006) (Sanchez I). Plaintiff then filed the instant action in federal court making substantially the same allegations regarding medical negligence that he did in state court but including Mya Donaldson as an additional defendant. With regard to the claims against defendant Havel, the district court correctly concluded that the doctrine of claim preclusion barred plaintiff’s attempt to relitigate the issues he raised in Sanchez I. It also correctly determined that issue preclusion similarly barred the claims against defendant Donaldson. We -2- therefore affirm the judgment of the district court for substantially the reasons stated by that court. Plaintiff’s argument that the district court erred in failing to order defendants to produce pertinent medical records is unavailing because plaintiff cannot proceed with this action in the first instance. Further, there is no factual support for plaintiff’s charge that the court was biased against him because of his inmate status or because he was not a state or city employee. Plaintiff’s charge in his “closeing [sic] statement and facts” that certain individuals conspired to intercept his outgoing legal mail was not included in the complaint and thus not before the district court. As such, it will not be considered on appeal. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). To the extent plaintiff asserts error in the court’s denial of his motion to reopen the case, construed as a Fed. R. Civ. P. 59(e) motion, we find no abuse of discretion in that decision. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Plaintiff’s motion for judgment in his favor is DENIED. Plaintiff’s motion for leave to proceed on appeal without prepayment of costs or fees is GRANTED. Plaintiff is reminded of his obligation to continue making partial payments pursuant to 28 U.S.C. § 1915(b) until the filing fee is paid in full. -3- The judgment of the district court is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge -4-	filed united territory court of appeals tenth circuit united states court of appeals october 9, 2008 for the tenth circuit elisabeth a. shumaker clerk of court kevin sanchez, plaintiff - appellant, v. no. 08 - 2018 ( d. c. no. 1 : 06 - cv - 01121 - wj - cg ) tom havel, administrator, ( p. n. m. ) san juan county detention center ; mya donaldson, administrator, medical department san juan county detention center, defendants - capt. order and judgment * before tacha, porfilio, and tymkovich, circuit judges. plaintiff appellant kevin sanchez filed a complaint in district court under 42 u. s. c. section 1983 claiming that he received negligent medical treatment while he was incarcerated in the san juan county new mexico detention center. the * after examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. see fed. r. app. p. 34 ( e ) ( 2 ) ; 10th cir. r. 34. 1 ( g ). the case is therefore ordered thereafter without oral argument. this order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. it may be cited, however, for its persuasive value consistent with fed. rd. app. p. 32. 1 and 10th cir. pp. 32. 1. district court adopted the findings and proposed disposition of the magistrate judge and granted summary judgment onto defendants based on grounds of both claim and issue preclusion, and plaintiff appeals. “ on account of [ plaintiff ’ s ] pro default status, we liberally construe his filings, but hold him to the same rules of procedure as other litigants. ” davis v. kan. dep ’ t of corrs., 507 f. 3d 1246, 1247 n. 1 ( 10th cir. 2007 ). we have jurisdiction under 28 u. s. c. § 1291, and, after our de novo review of the grant of summary judgment, simms v. okla. ex rel. dep ’ t of mental health & substance abuse servs., 165 f. 3d 1321, 1326 ( 10th cir. 1999 ), we affirm. in may 2006, plaintiff brought a state - court action against defendant havel and correctional healthcare management alleging false imprisonment and medical negligence. because plaintiff ’ s claims were barred by the applicable statute of limitations, the state court dismissed all of his claims with prejudice. sanchez v. havel, no. cv - 06 - 562 - 3 ( n. m. 11th judicial dist. ct. filed nov. 7, 2006 ) ( sanchez i ). plaintiff then filed the instant action in federal court making substantially the same allegations regarding medical negligence that he did in state court but including mya donaldson as an additional defendant. with regard to the claims against defendant havel, the district court correctly concluded that the doctrine of claim preclusion barred plaintiff ’ s attempt to relitigate the issues he raised in sanchez i. it also correctly determined that issue preclusion similarly barred the claims against defendant donaldson. we - 2 - therefore affirm the judgment of the district court for substantially the reasons stated by that court. plaintiff ’ s argument that the district court erred in failing to order defendants to produce pertinent medical records is unavailing because plaintiff cannot proceed with this action in the first instance. further, there is no factual support for plaintiff ’ s charge that the court was biased against him because of his inmate status or because he was not a state or city employee. plaintiff ’ s charge in his “ closeing [ sic ] statement and facts ” that certain individuals conspired to intercept his outgoing legal mail was not included in the complaint and thus not before the district court. as such, it will not be considered on appeal. walker v. mather ( in re walker ), 959 f. 2d 894, 896 ( 10th cir. 1992 ). to the extent plaintiff asserts error in the court ’ s denial of his motion to reopen the case, construed as a fed. r. civ. p. 59 ( e ) motion, we find no abuse of discretion in that decision. see butler v. kempthorne, 532 f. 3d 1108, 1110 ( 10th cir. 2008 ). plaintiff ’ s motion for judgment in his favor is denied. plaintiff ’ s motion for leave to proceed on appeal without prepayment of costs or fees is granted. plaintiff is reminded of his obligation to continue making partial payments pursuant to 28 u. s. c. § 1915 ( b ) until the filing fee is paid in full. - 3 - the judgment of the district court is affirmed. entered for the court timothy m. tymkovich circuit judge - 4 -	FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, 2008 FOR THE TENTH CIRCUIT Elisavetu A. Shumaker Clerk of Court KEVIN SANCHEZ, Plaintiff - Appellant, v. No. 08 - 2018 (D. C. No. 1: 06 - CV - 01121 - WJ - CG) TOM HAVEL, Administrator, (D. N. M.) San Juan County Detention Center; MYA DONALDSON, Administrator, Medical Department San Juan County Detention Center, Defendants - Appelieew. ORDER AND JUDGMENT * Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff appellant Kevin Sanchez filed a complaint in district court under 42 U. S. C. § 1983 claiming that he received negligent medical treatment while he was incarcerated in the San Juan County New Mexico Detention Center. The * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially aasiXt the determination of this appeal. See Fed. R. App. P. 34 (a) (2 ); 10th Cir. R. 34. 1 (G ). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32. 1. district court adopted the findings and proposed disposition of the magistrate judge and granted summary judgment to defendants based on grounds of both claim and issue preclusion, and plaintiff appeals. “ On account of [plaintiff ’ s] pro se status, we liberally construe his filings, but hold him to the same rules of procedure as oth@4 litigants. ” Davis v. Kan. Dep ’ t of Corrs. , 507 F. 3d 1246, 1247 n. 1 (10th Cir. 2007 ). We have jurisdiction under 28 U. S. C. § 1291, and, after our de novo review of the grant of summary judgment, Simms v. Okla. ex rel. Dep ’ t of M$nYal Health & Substance Abuse Servs. , 165 F. 3d 1321, 1326 (10th Cir. 1999 ), we affirm. In May 2006, plaintiff brought a state - court action against defendant Havel and Correctional Healthcare Management alleging false imprisonment and medical negligence. Because plaintiff ’ s claims were barred by the applicable statute of limitations, the state court dismissed all of his claims with prejudice. Sanchez v. Havel, No. CV - 06 - 562 - 3 (N. M. 11th Judicial Dist. Ct. filed Nov. 7, 2006) (Sanchez I ). Plaintiff then filed the instant action in federal court making substantially the same allegations regarding medical negligence that he did in state court but including Mya Donaldson as an additional defendant. With regard to the claims against defendant Havel, the district court correctly concluded that the doctrine of claim preclusion barred plaintiff ’ s attempt to relitigate the issues he raised in Sanchez I. It also correctly determined that issue preclusion similarly barred the claims against defendant Donaldson. We - 2 - therefore affirm the judgment of the district court for substantially the reasons stated by that court. Plaintiff ’ s argument that the district court erred in fai;(ng to order defendants to produce pertinent medical records is unavailing because plaintiff cannot proceed with this action in the first instance. Further, there is no factual supOorh for plaintiff ’ s charge that the court was biased against him because of his inmate status or because he was not a state or city employee. Plaintiff ’ s charge in his “ closeing [sic] statement and facts ” that certain individuals conspired to intercept his outgoing legal mail was not included in the complaint and thus not before the district cou$^. As such, it will not be considered on WppFal. Walker v. Mather (In re Walker ), 959 F. 2d 894, 896 (10th Cir. 1992 ). To the extent plaintiff asserts error in the court ’ s denial of his motion to reopen the case, construed as a Fed. R. Civ. P. 59 (e) motion, we find no abuse of discretion in that decision. See Butler v. Kempthorne, 532 F. 3d 1108, 1110 (10th Cir. 2008 ). Plaintiff ’ s motion for judgment in his favor is DENIED. Plaintiff ’ s m(4ion for leave to proceed on appeal without prepayment of costs or fees is GRANTED. Plaintiff is reminded of his obligation to continue making partial payments pursuant to 28 U. S. C. § 1915 (b) until the filing fee is paid in full. - 3 - The judgment of the district court is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge - 4 -	FILED United States of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, 2008 FOR THE TENTH CIRCUIT Elisabeth A. Clerk of Court KEVIN SANCHEZ, Plaintiff-Appellant, v. No. 08-2018 (D.C. 1:06-CV-01121-WJ-CG) TOM Administrator, (D. N.M.) San Juan Detention Center; MYA DONALDSON, Administrator, Medical Department San Juan County Detention Defendants-Appellees. AND JUDGMENT * Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff appellant Kevin Sanchez filed a complaint district court under 42 U.S.C. § 1983 claiming that he received negligent medical treatment while he was incarcerated in the San Juan County New Mexico Center. The * After examining the briefs and appellate record, this has unanimously that oral argument would not assist determination of this appeal. See Fed. R. App. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is binding precedent, except under the doctrines of law of the case, res judicata, and estoppel. It may be cited, however, for persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. district court adopted the findings and proposed disposition of magistrate judge and granted summary to defendants based on grounds of both claim and issue preclusion, and plaintiff appeals. “On of [plaintiff’s] pro se we liberally construe his filings, but hold him to the same rules of as other litigants.” Davis v. Kan. Dep’t of Corrs., 507 1246, 1247 (10th Cir. 2007). We have jurisdiction under 28 U.S.C. § 1291, and, after our de review the grant of summary judgment, Simms Okla. ex Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we affirm. In plaintiff brought a state-court action against defendant Havel and Correctional Healthcare Management alleging false and medical negligence. Because plaintiff’s claims were barred the applicable statute of limitations, the state court dismissed all of his claims with prejudice. Sanchez Havel, No. CV-06-562-3 (N.M. 11th Judicial Dist. Ct. filed Nov. 7, 2006) (Sanchez I). Plaintiff then filed the instant action in federal court substantially the same allegations regarding medical negligence that he did in state court but including as an additional defendant. With regard to the claims defendant Havel, the district court correctly concluded that the doctrine of claim preclusion plaintiff’s attempt to relitigate the issues he raised in Sanchez I. It also correctly determined that issue preclusion similarly barred the claims defendant Donaldson. We -2- therefore affirm the judgment the district court for substantially the reasons stated by that court. Plaintiff’s argument that the district court erred in failing to order defendants to produce pertinent medical records is unavailing because plaintiff proceed with this in the first instance. Further, there no factual support for plaintiff’s charge that court was biased against him because of his inmate status or because he not or city employee. charge “closeing [sic] statement and facts” that certain individuals conspired to his outgoing legal mail was not included in the complaint and thus not before the district court. As such, it will not be considered on appeal. Walker v. Mather re Walker), 959 F.2d 894, 896 (10th Cir. 1992). To the extent plaintiff asserts error the court’s denial his motion to case, as a Fed. R. Civ. P. 59(e) motion, we find no abuse discretion in that decision. See Butler v. Kempthorne, 532 1108, 1110 (10th Cir. 2008). Plaintiff’s motion for judgment in his is DENIED. Plaintiff’s for leave to proceed on appeal without prepayment of costs or fees is GRANTED. Plaintiff is his obligation continue partial payments pursuant to 28 U.S.C. § 1915(b) until the filing fee is paid -3- judgment of the district court is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge -4-	FIlEd UniTEd sTAtes court Of aPPEalS tEntH CiRcUit UNitED stAtEs cOUrt Of Appeals ocTOBeR 9, 2008 foR ThE TENTh CiRCuiT ElISABeTh A. sHUMAkER clerK of couRT KEVIN saNCheZ, PlaInTIFF-APPellAnT, V. nO. 08-2018 (D.C. No. 1:06-Cv-01121-wj-cG) tOm havEL, ADMINIstratOR, (d. n.M.) SaN jUaN cOunty detEntIon CeNTeR; Mya DONAldSon, aDMINisTRAtoR, MeDICaL dEpaRtMEnT sAN JUaN cOUNTy deTENtiON CeNTER, dEFeNDaNTs-APpElLEeS. OrdEr And JUDGMent * BeForE tacha, PorfILIO, AND tymkoVICH, ciRCuiT JuDGEs. PLAINtiFf APPELlAnt keVin sAncHeZ FIled a coMPlaINt in dIstricT couRT undER 42 U.S.C. § 1983 clAIMing tHat HE recEivED nEGlIgenT MEdIcal treaTMeNT whilE He waS IncARcerAteD IN tHE sAN jUAN cOUNtY NeW MeXIco DETENTiON cENtEr. THe * aftER EXAMiNINg the BrIeFs anD aPpelLAtE reCoRd, THiS PanEl HaS deterMInED unanImOuSlY THAT oRAL aRGUment WOuld Not materiALLy aSsisT ThE deTeRMinATION OF ThIS aPpEAL. sEe FEd. R. aPp. p. 34(a)(2); 10th CIR. r. 34.1(G). tHE Case Is ThEREFOrE OrDEred SubmiTTED wITHoUT ORAL ArgUMenT. THIS ORdER AnD judGmEnT iS not binDING pRecEdENt, ExCEpt undER ThE DOCTrINeS OF Law Of the Case, res JudiCata, and cOLLaTeRAL EstOppel. it mAy BE ciTed, HOWeVeR, fOr iTs peRsUASIVe VaLUe CoNsistenT WiTh Fed. R. app. p. 32.1 anD 10tH ciR. R. 32.1. dIsTrIct CouRt ADOPTeD tHe findinGS AnD pRoposED dISPOsItioN of ThE magistRATE jUDgE aND gRANTed sumMAry JudGMent to deFEnDaNtS BASeD On grOUNdS Of boTh CLaiM and iSSUE PRECLUSion, aND PLaiNTifF APpEalS. “on acCOunT Of [pLAiNtiff’S] Pro Se stATus, we liBeRALLY coNSTrUE HIS FiLinGs, but HOld hIm to the SAme ruLeS oF ProcEDURE as OtHER LiTIGAnTs.” DAvIS v. Kan. dep’T OF corRs., 507 f.3d 1246, 1247 n.1 (10Th cir. 2007). WE Have jurisdictIoN UnDeR 28 u.s.c. § 1291, AND, afTER OUR DE NOVO reVIEW oF ThE gRAnt OF SuMMarY jUdGmenT, SImMs v. Okla. ex Rel. deP’T OF meNtal heaLTh & SubstANCe aBusE SERvs., 165 F.3d 1321, 1326 (10tH CiR. 1999), We affiRM. In MAy 2006, plAinTIFf BROUght a stAtE-cOuRt ACtIoN agaInST DefEnDANt havel aNd cORrecTiOnAL HeALThcarE maNAGEmENt aLlEginG faLsE imPrIsOnmEnT AND meDICAL neGLigencE. beCaUSE plAiNTifF’S ClaImS wERE bArRed By tHE apPlICaBlE sTaTUtE OF LIMiTAtiONS, The STate cOURT dISmissEd AlL Of hIs claIMS with preJUDICe. sANChEZ v. hAVEl, NO. Cv-06-562-3 (n.M. 11TH JuDICIAL Dist. Ct. FiLED NOV. 7, 2006) (SANCHEz I). pLAiNTiff tHEn FIled tHe INStANt Action In FEDERal COURt makinG SubStantiALLY thE Same AlLEGATioNS regardIng mEdIcAL nEglIGENcE thaT He DId In stAte COurt but IncLUdING MYa DONaLdsOn as aN aDDItIoNAL DEFeNdAnt. wITh REgARd TO the CLaiMs AGAInst DEfEndanT hAVEl, tHE DiSTrict cOuRt cORrecTLY cOnCLuDeD tHAT The doCtrInE OF claIM prEclusIoN BARrEd PLaiNTIFF’s aTTeMpT To rElItIgAte The issueS HE RaIsED IN SanCHEz i. IT alSO CORREctLY detERMiNEd tHAT iSSUE PREClUSIoN SIMiLARly bARRed THE cLAimS agaInsT defENDAnt dONAldSoN. wE -2- tHereFORE aFfIRM The juDGMENT oF tHe disTriCt COURT FOR subSTaNtIAlLy tHE reasONS STateD BY THAt couRT. PlAinTiFF’s ARguMENt ThaT THE dIStRIct courT ERRed IN fAILiNG TO ordER defENDantS to pROduCE peRtineNt MEDIcal RECords iS unavAILing becAuSe PlaINTIFf CAnnOt PRocEEd WitH THIS ACtIoN iN tHE fIrSt INsTance. furTHEr, tHERe Is no fACtUal sUpPoRt FOR plAIntiFF’S chARgE thaT The cOURT WAS bIaSED AgAInsT hIM BecAuse oF his inmaTe stAtUs or BECauSe HE WAs Not A sTaTe Or city emPlOyee. plAinTiff’S CHaRGe in hIs “closEiNg [siC] sTATement and FACTS” ThAt ceRtAIN INDivIduaLS COnSPIRED To inTERcEpt HIs oUTgoing LeGaL mAiL waS not inCluDED In tHE CompLAiNT And THUs NOt befoRe tHE DiStrICt CourT. AS sucH, it WILl Not be COnSIderED oN apPEAl. waLKeR v. mAThEr (in RE WaLKER), 959 f.2D 894, 896 (10TH cIr. 1992). TO thE ExteNt plAINTIFF aSseRtS eRROr IN ThE CouRT’s DEniAL OF hIS MotIoN to reOPEN thE CASE, CONStRueD aS A fED. R. ciV. p. 59(E) mOTIon, wE fInD No aBUse oF DiSCRetIon IN thaT dECiSIOn. sEE BUTler v. KeMptHoRne, 532 f.3d 1108, 1110 (10tH CiR. 2008). PLaIntiff’S MotiON for JUDgMenT In HIs FavoR IS DEniED. PLaIntIfF’S motioN FOr LEAvE to PROceed oN ApPEal wIThOUT prePayMENt Of CosTS Or fEeS IS Granted. plAintIFf is REMInDED oF hiS ObLIGATioN To CoNtINUE makiNg PARtIal PAYMENTS pUrSUANt tO 28 u.s.c. § 1915(B) UntIl the FILING fee Is Paid In fuLL. -3- thE jUDGMEnT Of the diStrICt couRt iS afFirmed. eNtered FOr THE COuRT tIMOthY M. tYMkoVicH CIrCuit JUDgE -4-	FILED United States Courtof Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, 2008 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court KEVIN SANCHEZ, Plaintiff-Appellant, v. No. 08-2018(D.C. No. 1:06-CV-01121-WJ-CG) TOM HAVEL, Administrator, (D. N.M.)San Juan County Detention Center;MYA DONALDSON,Administrator, Medical Department San Juan County DetentionCenter, Defendants-Appellees. ORDER ANDJUDGMENT * Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff appellant KevinSanchez filed a complaint in district court under 42 U.S.C. § 1983 claiming that he received negligent medicaltreatment while he was incarcerated in the San Juan County New Mexico Detention Center. The * After examining the briefs and appellate record, this panel has determined unanimouslythat oral argument would notmaterially assist the determination ofthis appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is thereforeordered submittedwithout oral argument. This orderand judgment is not binding precedent, except underthedoctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent withFed. R. App. P. 32.1 and 10thCir.R. 32.1. district court adopted the findings and proposed disposition of the magistrate judge and granted summary judgment to defendants based on grounds of bothclaim and issuepreclusion, andplaintiff appeals.“On account of [plaintiff’s] pro se status, weliberally construe his filings, but hold him tothe same rules of procedure as other litigants.”Davis v.Kan. Dep’t of Corrs.,507 F.3d 1246, 1247 n.1 (10thCir. 2007).We have jurisdiction under 28 U.S.C. §1291,and, after our de novo review ofthe grant of summary judgment, Simms v.Okla. exrel. Dep’t of Mental Health& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we affirm. In May 2006, plaintiff brought a state-court actionagainst defendant Havel and Correctional Healthcare Management alleging false imprisonment and medical negligence. Because plaintiff’sclaims were barred by the applicable statute of limitations, the state court dismissed all of his claims with prejudice. Sanchez v. Havel, No. CV-06-562-3(N.M. 11th Judicial Dist. Ct. filed Nov. 7, 2006)(Sanchez I). Plaintiff then filed the instant action infederal courtmaking substantially the same allegations regarding medical negligencethathe did in state court but includingMya Donaldson as an additionaldefendant. With regard to the claims against defendant Havel,the district court correctlyconcluded that the doctrine of claim preclusion barred plaintiff’sattempttorelitigate the issues he raised in Sanchez I. It also correctly determined that issue preclusion similarly barredthe claims against defendant Donaldson. We -2- therefore affirm the judgmentof the district court for substantially the reasonsstatedbythat court.Plaintiff’s argument that the district court erred in failing to order defendants to produce pertinent medical records is unavailing becauseplaintiff cannot proceed with this action in the firstinstance. Further, there is no factual support for plaintiff’s charge thatthe court was biased against him because of his inmate status or because he was not a state or city employee. Plaintiff’s charge in his “closeing [sic] statement and facts” that certain individuals conspired to intercept his outgoing legal mail was not included inthe complaint and thus not beforethe district court. As such, it will not be considered on appeal. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). To theextent plaintiff asserts error in thecourt’s denial of his motion to reopen the case,construedas a Fed. R. Civ. P. 59(e) motion, we find no abuse of discretion in that decision. See Butler v. Kempthorne, 532 F.3d1108, 1110 (10th Cir. 2008). Plaintiff’s motion for judgmentin his favor is DENIED. Plaintiff’s motion for leave to proceed on appeal without prepaymentof costs or fees is GRANTED. Plaintiff is reminded of hisobligation to continue making partial payments pursuant to 28U.S.C.§ 1915(b) until the filing fee is paid in full. -3- The judgment of the district court is AFFIRMED. Entered for theCourt Timothy M. Tymkovich Circuit Judge -4-	FILED United _States_ Court _of_ Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, _2008_ FOR THE TENTH CIRCUIT Elisabeth A. Shumaker _Clerk_ _of_ Court KEVIN SANCHEZ, Plaintiff-Appellant, v. No. 08-2018 (D.C. No. _1:06-CV-01121-WJ-CG)_ _TOM_ HAVEL, Administrator, (D. N.M.) _San_ Juan _County_ _Detention_ Center; MYA DONALDSON, Administrator, _Medical_ Department _San_ _Juan_ County Detention Center, Defendants-Appellees. _ORDER_ _AND_ JUDGMENT * Before _TACHA,_ PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff _appellant_ Kevin Sanchez _filed_ a complaint _in_ district court under 42 U.S.C. _§_ 1983 _claiming_ that he received negligent medical treatment while _he_ was _incarcerated_ in the San Juan County _New_ Mexico Detention Center. The * After examining the _briefs_ _and_ appellate _record,_ _this_ panel has determined unanimously _that_ oral argument would not _materially_ _assist_ the determination _of_ this _appeal._ See Fed. R. App. P. 34(a)(2); 10th _Cir._ _R._ 34.1(G). _The_ case _is_ _therefore_ ordered submitted without oral argument. This order and judgment is not binding _precedent,_ except under the doctrines of law of _the_ case, res judicata, and collateral _estoppel._ It may be cited, however, for its persuasive value consistent with Fed. _R._ App. P. _32.1_ and 10th Cir. R. 32.1. district court adopted the findings _and_ _proposed_ disposition _of_ the magistrate judge and granted summary judgment to _defendants_ based on grounds of _both_ claim and issue preclusion, and _plaintiff_ appeals. “On account of [plaintiff’s] pro se _status,_ _we_ _liberally_ construe his _filings,_ but hold him to the same rules of procedure _as_ other litigants.” Davis v. Kan. Dep’t of Corrs., _507_ F.3d 1246, 1247 _n.1_ (10th _Cir._ _2007)._ We have _jurisdiction_ under _28_ _U.S.C._ § 1291, and, _after_ our _de_ _novo_ review _of_ _the_ grant of summary judgment, Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., _165_ F.3d _1321,_ 1326 (10th Cir. 1999), we affirm. In May 2006, plaintiff _brought_ _a_ state-court action against defendant _Havel_ and Correctional Healthcare _Management_ alleging false imprisonment and medical _negligence._ Because plaintiff’s _claims_ were barred _by_ the applicable statute of limitations, the state court _dismissed_ all of _his_ claims with prejudice. Sanchez _v._ Havel, _No._ CV-06-562-3 _(N.M._ _11th_ Judicial Dist. Ct. filed Nov. 7, 2006) (Sanchez I). _Plaintiff_ then filed _the_ _instant_ _action_ in federal court making substantially the same allegations _regarding_ _medical_ _negligence_ that he did _in_ state court but _including_ _Mya_ Donaldson as _an_ additional defendant. _With_ _regard_ _to_ the _claims_ against defendant Havel, _the_ district court correctly concluded _that_ the doctrine _of_ claim _preclusion_ _barred_ _plaintiff’s_ attempt to relitigate the issues he raised in Sanchez I. _It_ also correctly determined that _issue_ preclusion similarly _barred_ the claims _against_ defendant _Donaldson._ We -2- therefore affirm the judgment of the district court for substantially the _reasons_ stated by that court. Plaintiff’s argument that the district court erred in failing _to_ order defendants to produce pertinent medical records is _unavailing_ because plaintiff cannot proceed with this action _in_ the first _instance._ Further, there is no factual support for plaintiff’s _charge_ that the court was biased against him because of _his_ inmate status or because he was _not_ a state or city employee. _Plaintiff’s_ charge in his “closeing [sic] statement and facts” that certain individuals conspired to intercept _his_ outgoing legal mail was _not_ included in the complaint and thus not before the district court. As such, it will not be considered on appeal. Walker v. Mather (In _re_ Walker), _959_ F.2d 894, 896 (10th Cir. 1992). To the extent _plaintiff_ asserts error in the court’s denial of _his_ motion _to_ reopen the case, construed as a _Fed._ R. Civ. _P._ 59(e) motion, _we_ _find_ no abuse _of_ discretion in that decision. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Plaintiff’s motion _for_ judgment in his favor is DENIED. Plaintiff’s motion for leave to proceed on _appeal_ without prepayment of costs _or_ _fees_ _is_ GRANTED. Plaintiff _is_ reminded of his obligation to _continue_ making partial payments pursuant to 28 U.S.C. _§_ 1915(b) until the filing fee is paid in full. -3- The judgment _of_ the district court _is_ AFFIRMED. Entered for the Court _Timothy_ _M._ Tymkovich Circuit Judge -4-
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00077-CV IN RE KEY SAFETY SYSTEMS, RELATOR INC. ------------ ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION1 ------------ The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, relator’s petition for writ of mandamus is denied. Relator shall pay all costs of this original proceeding, for which let execution issue. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ. MCCOY, J. would request a response. DELIVERED: March 14, 2011 1 See Tex. R. App. P. 47.4, 52.8(d).	court of appeals second district of texas filing worth no. 02 - 07 - 00077 - cv in re key safety systems, sierra inc. - - - - - - - - - - - - original petition - - - - - - - - - - - - memorandum opinion1 - - - - - - - - - - - - the court has considered relator ’ s petition for writ of mandamus and is of the opinion that application should be denied. accordingly, relator ’ s petition for writ of mandamus is denied. relator shall pay all costs of this initial proceeding, for which let execution issue. lee gabriel justice panel : livingston, c. j. ; mccoy and gabriel, l. mccoy, j. would receive a response. delivered : march 14, 2011 1 see tex. r. sci. p. 47. 114, 52. 8 ( d ).	COURT OF qPPEALe SECOND DISTRlCH OF TEAXS FORT WORTH NO. 02 - 11 - 00077 - CV IN RE KEY SAFETY XtSTEMS, RELATOR INC. - - - - - - - - - - - - ORIGINAL PROCEEDING - - - - - - - - - - - - MEMORANDUM OPINION1 - - - - - - - - - - - - The co TrG has considered relator ’ s petition for writ of mandamus and is of the opinion tJWt relief should be d2n(ed. qccordingPy, relator ’ s petition for writ of mandamus is denied. Relator shall pay all costs of this original proceeding, for which let execution issue. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C. J. ; kCVOY and GABRIEL, JJ. MCCOY, J. would request a response. DELIVERED: jarcJ 14, 2011 1 See Tex. R. App. P. 47. 4, 52. 8 (d ).	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00077-CV IN RE KEY SAFETY SYSTEMS, RELATOR INC. ------------ ORIGINAL ------------ OPINION1 The court has considered relator’s petition writ of mandamus and is the opinion that relief should be denied. Accordingly, relator’s petition for writ of mandamus denied. shall pay all costs of this original proceeding, for which let execution issue. LEE GABRIEL JUSTICE PANEL: C.J.; MCCOY and GABRIEL, JJ. MCCOY, J. would request a DELIVERED: March 14, 2011 1 See Tex. R. App. P. 47.4, 52.8(d).	cOurT Of apPealS SeCOnd DiSTRICt oF TExas foRt WOrTH No. 02-11-00077-cv in RE KEy SafeTY sYsTEms, reLatoR inC. ------------ oRIGiNAL PROcEEdInG ------------ memOraNdUM oPinion1 ------------ ThE coUrT HAS CoNsIdERed RElATOr’s PEtItIOn For wRit OF MaNDamUs and IS OF tHe OPInioN ThaT rElIEF sHould be DeNieD. aCCOrDINgLy, RelAtOR’S pEtItion For WRIt Of maNDaMus iS DEnIED. RELatoR shalL pAy aLL COstS Of THIS origiNAl PRoceEdinG, fOR WhIch Let ExeCutiOn ISSuE. leE GABrIEl JUSTIcE pAnEL: LiVingSTON, C.j.; McCoY AND gaBriel, Jj. mCCOy, j. wOulD ReqUEsT A rESpoNse. DElIVeReD: mArcH 14, 2011 1 SEe teX. R. App. p. 47.4, 52.8(D).	COURT OFAPPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00077-CV IN REKEY SAFETY SYSTEMS, RELATOR INC. ------------ ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION1 ------------ The court has consideredrelator’s petition for writ of mandamus and is oftheopinion that relief should be denied. Accordingly, relator’s petition for writof mandamus isdenied. Relator shall pay all costsof this original proceeding, forwhichlet execution issue. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ. MCCOY,J.would request a response. DELIVERED: March14, 2011 1 SeeTex. R. App. P. 47.4, 52.8(d).	COURT _OF_ _APPEALS_ _SECOND_ _DISTRICT_ OF TEXAS FORT WORTH NO. 02-11-00077-CV IN RE KEY SAFETY SYSTEMS, RELATOR INC. ------------ ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION1 ------------ The court has considered relator’s petition for _writ_ of mandamus and is of the _opinion_ _that_ relief _should_ be denied. Accordingly, _relator’s_ petition for writ of mandamus is denied. Relator _shall_ pay all costs of this original proceeding, for which let _execution_ issue. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ. MCCOY, _J._ _would_ request a _response._ DELIVERED: _March_ 14, 2011 1 See _Tex._ R. App. _P._ 47.4, _52.8(d)._
45 Md. App. 489 (1980) 413 A.2d 1365 CARLTON G. BEALL v. CECELIA M. BEALL. No. 1065, September Term, 1979. Court of Special Appeals of Maryland. Decided May 8, 1980. 490 The cause was argued before MOORE, LOWE and COUCH, JJ. J. Frederick Garner, with whom was C. Calvert Lancaster on the brief, for appellant. Steven Rosen, with whom were Willoner, Calabrese & Rosen, P.A. on the brief, for appellee. MOORE, J., delivered the opinion of the Court. This appeal concerns an alleged option agreement and a suit by Carlton G. Beall for the specific performance thereof. The Circuit Court for Prince George's County (Melbourne, J.) found the agreement unsupported by consideration and dismissed plaintiff's bill of complaint pursuant to Maryland Rule 535. From that order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, purchased a farm in Prince George's County from Pearl Beall. At that time, the property was farmed by Pearl's son, Calvin Beall. The record discloses that Carlton, the plaintiff, and Calvin were second cousins. Calvin was married to Cecelia M. Beall, the defendant herein. Carlton agreed that Calvin could continue to farm the property if he would pay the annual property taxes. Calvin and Cecelia owned and resided on a parcel of about one-half acre that was bordered on three sides by the farm bought by the plaintiff; and it is that parcel that is the subject of this dispute. On the day that plaintiff contracted to buy Pearl's farm, he obtained a three-year option to purchase Calvin's and 491 Cecelia's parcel for $28,000.00. The option recited a consideration of $100.00 which was paid by check. In 1971, the parties executed a new option, for five years, but on the same terms and reciting an additional $100.00 consideration. This 1971 option was never exercised by the plaintiff, but prior to its expiration the following language was appended at the bottom of the page: "As of October 6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agree to continue this option agreement three more years Feb. 1, 1976 to Feb. 1, 1979. /s/ Calvin E. Beall /s/ Cecelia M. Beall." It is this purported extension that forms the basis for plaintiff's bill of complaint seeking specific performance of the agreement. Calvin died in August 1977, and Cecelia now holds the fee simple title by right of survivorship. In letters dated May 24, 1978 and September 14, 1978, the plaintiff advised Cecelia that he was electing to exercise the option. He scheduled settlement for October 5, 1978. As the chancellor found: "It is undisputed in this case that Mr. Carlton Beall did eventually hire attorneys to search the title, set a settlement date, attend the settlement, and was ready, willing and able to perform the contract." Cecelia refused to attend settlement, and this suit for specific performance ensued. At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted the motion because she felt that the option agreements were not supported by consideration in that "no benefit ... flowed to Cecelia Beall." In addition, as to the 1975 alleged option, the chancellor ruled: "[T]here is no consideration recited in that extension or purported extension of the original 492 option contract. And the one extension that had occurred in the interim, even then would also fail because there is no consideration stated in the extension. It is clear that consideration must pass for the extension each time, in some form of consideration. None is stated within the written four lines." On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to oral transactions with Calvin, the deceased husband of the defendant. II Under Maryland law it is clear that "an option is not a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance, but a binding agreement if supported by consideration." Blondell v. Turover, 195 Md. 251, 256, 72 A.2d 697, 699 (1950). In other words, an option is an agreement to keep an offer open that requires consideration to give it its irrevocable character. Goldman v. Connecticut General Life Insurance Co., 251 Md. 575, 581, 248 A.2d 154, 158 (1968). Once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding specific performance. Diggs v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, 727 (1968); Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. It is apparent, then, that an option must be supported by consideration in order to be irrevocable for the period provided in the option. When, however, the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes "a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance...." Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. The failure of consideration destroys the irrevocability of the option; it nonetheless retains its essential characteristic as an offer to buy or sell for the 493 period stated in the option or until revoked. It has been recognized that equity will enforce a resulting contract despite lack of consideration for the option: "While the rule that equity will enforce a contract consummated by the acceptance of an option within the time and upon the terms of the option is often stated in such a way as to suggest or imply the necessity of consideration for the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed in the option within which acceptance could be made." 71 Am.Jur.2d, Specific Performance § 143 (1973) (footnotes omitted). See 1A Corbin on Contracts § 263 (1963). See generally Kahn v. General Development Corp., 40 Del. Ch. 83, 92, 174 A.2d 307, 312 (1961) (failure of consideration "destroyed the irrevocability of the option"). Burkhead v. Farlow, 266 N.C. 595, 597, 146 S.E.2d 802, 804 (1966) (option without consideration was "mere offer to sell which defendants might have withdrawn at any time before acceptance"); Rose v. Minis, 41 N.J. Super. 538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is "simply a naked revocable authority"). Assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $28,000. The offer was open until February 1, 1979, but it was revocable at any time by action of Calvin and Cecelia Beall. As stated in the case of Holifield v. Veterans' Farm & Home Board, 218 Miss. 446, 450, 67 So.2d 456, 457 (1953): "It is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn. Since there was no consideration paid by the Veterans' Farm and Home Board and *494 Mauldin for the option, it could have been revoked by the Holifields at any time before the Veterans' Farm and Home Board and Mauldin notified them that they intended to buy the land; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the consideration of the mutual promises." (Emphasis added.) This statement is generally in accord with the Maryland cases, supra. The chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer to sell the property in dispute and whether or not there was a proper acceptance of that offer sufficient to create a contract specifically enforceable in equity.[1] These issues of offer and acceptance primarily involve factual determinations that initially must be evaluated by the chancellor. As an appellate court, we are limited to a review of the chancellor's findings under the "clearly erroneous" standard. Md. Rule 1086. But our review is dependent upon the existence of factual findings on the issues material to the case. Such findings were not made below. It was error for the chancellor to dismiss plaintiff's bill of complaint at the close of his case. A new trial, in accordance with this opinion, is necessitated. Order reversed; cause remanded for a new trial in accordance with this opinion; costs to abide the final result. NOTES [1] We express no opinion concerning the validity of the chancellor's finding that there was no consideration for the option.	45 md. app. 489 ( 1980 ) 413 a. 2d 1365 carlton g. beall v. cecelia m. beall. no. 1065, september term, 1979. court of special appeals of maryland. decided may 8, 1980. * 490 the cause was argued before moore, lowe and couch, jj. j. frederick garner, with whom was c. calvert lancaster on the brief, for appellant. steven rosen, with whom were willoner, calabrese & rosen, p. a. on the brief, for appellee. moore, j., delivered the opinion of district court. this appeal concerns an alleged option agreement and a suit by carlton g. beall for the specific terms thereof. the circuit court for prince george ' s county ( melbourne, j. ) found the agreement unsupported by consideration and dismissed plaintiff ' s bill of complaint pursuant to maryland rule 535. from that order, he appeals to this court. i in 1968, the plaintiff, carlton g. beall, purchased a farm in prince george ' s county from pearl beall. at that time, the house was farmed by pearl ' s son, calvin beall. the record discloses that carlton, the plaintiff, and calvin were second cousins. calvin was married to cecelia m. beall, the defendant herein. carlton agreed that calvin could continue to farm the property if he would pay the annual property taxes. calvin and cecelia shared and resided on a parcel of about one - half acre that was bordered throughout three sides by the farm bought by the tenants ; and it is that parcel that is the subject of this dispute. on the day that plaintiff contracted to sue pearl ' s farm, he obtained a three - year option to purchase calvin ' s and * 491 cecelia ' s parcel for $ 28, 000. 00. the option recited a consideration of $ 100. 00 which was paid by check. in 1971, the parties executed a new option, for five years, but on the same conditions and reciting an existing $ 100. 00 consideration. this 1971 option was never exercised by the plaintiff, but prior to its expiration the following language was appended at the bottom of the page : " evening of october 6, 1975, we, calvin e. beall and cecelia m. beall, agree to continue this option agreement three more years feb. 1, 1976 to feb. 1, 1979. / s / calvin e. beall / s / cecelia m. beall. " it is this purported extension that forms the basis for plaintiff ' s bill of complaint seeking specific performance of the agreement. calvin died in august 1977, and cecelia now holds the fee simple title by right of survivorship. in letters dated may 24, 1978 and september 14, 1978, the plaintiff advised cecelia that he was electing to exercise the option. he scheduled settlement for october 5, 1978. as the chancellor found : " it is undisputed in this case that mr. carlton beall did eventually hire attorneys to search the title, set a settlement date, attend the settlement, and was ready, willing and able to perform the contract. " cecelia refused to attend settlement, and this suit for specific performance ensued. at trial, after plaintiff presented his evidence, cecelia moved to dismiss the bill of complaint. the chancellor granted the motion because she felt that the option agreements were not supported by consideration in that " no benefit... flowed to cecelia beall. " in addition, as to the 1975 alleged option, the chancellor ruled : " [ t ] here is no consideration recited in that extension or purported extension of the original * 492 option contract. and the one extension that had occurred in the interim, even then would also fail because there is no consideration stated in the extension. it is clear that consideration must pass for the extension each time, in some form of consideration. none is stated within the written four lines. " on appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to oral transactions with calvin, the deceased husband of the defendant. ii under maryland law it is clear that " an option is not a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance, but a binding agreement if supported by consideration. " blondell v. turover, 195 md. 251, 256, 72 a. 2d 697, 699 ( 1950 ). in other words, an option is an agreement to keep an offer open that requires consideration to give it its irrevocable character. goldman v. connecticut general life insurance co., 251 md. 575, 581, 248 a. 2d 154, 158 ( 1968 ). once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding specific performance. diggs v. siomporas, 248 md. 677, 681, 237 a. 2d 725, 727 ( 1968 ) ; blondell v. turover, supra, 195 md. at 256, 72 a. 2d at 699. it is apparent, then, that an option must be supported by consideration in order to be irrevocable for the period provided in the option. when, however, the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes " a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance.... " blondell v. turover, supra, 195 md. at 256, 72 a. 2d at 699. the failure of consideration destroys the irrevocability of the option ; it nonetheless retains its essential characteristic as an offer to buy or sell for the * 493 period stated in the option or until revoked. it has been recognized that equity will enforce a resulting contract despite lack of consideration for the option : " while the rule that equity will enforce a contract consummated by the acceptance of an option within the time and upon the terms of the option is often stated in such a way as to suggest or imply the necessity of consideration for the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed in the option within which acceptance could be made. " 71 am. jur. 2d, specific performance § 143 ( 1973 ) ( footnotes omitted ). see 1a corbin on contracts § 263 ( 1963 ). see generally kahn v. general development corp., 40 del. ch. 83, 92, 174 a. 2d 307, 312 ( 1961 ) ( failure of consideration " destroyed the irrevocability of the option " ). burkhead v. farlow, 266 n. c. 595, 597, 146 s. e. 2d 802, 804 ( 1966 ) ( option without consideration was " mere offer to sell which defendants might have withdrawn at any time before acceptance " ) ; rose v. minis, 41 n. j. super. 538, 543, 125 a. 2d 535, 538 ( 1956 ) ( option which is mere offer is " simply a naked revocable authority " ). assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $ 28, 000. the offer was open until february 1, 1979, but it was revocable at any time by action of calvin and cecelia beall. as stated in the case of holifield v. veterans ' farm & home board, 218 miss. 446, 450, 67 so. 2d 456, 457 ( 1953 ) : " it is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn. since there was no consideration paid by the veterans ' farm and home board and * 494 mauldin for the option, it could have been revoked by the holifields at any time before the veterans ' farm and home board and mauldin notified them that they intended to buy the land ; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the consideration of the mutual promises. " ( emphasis added. ) this statement is generally in accord with the maryland cases, supra. the chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer to sell the property in dispute and whether or not there was a proper acceptance of that offer sufficient to create a contract specifically enforceable in equity. [ 1 ] these issues of offer and acceptance primarily involve factual determinations that initially must be evaluated by the chancellor. as an appellate court, we are limited to a review of the chancellor ' s findings under the " clearly erroneous " standard. md. rule 1086. but our review is dependent upon the existence of factual findings on the issues material to the case. such findings were not made below. it was error for the chancellor to dismiss plaintiff ' s bill of complaint at the close of his case. a new trial, in accordance with this opinion, is necessitated. order reversed ; cause remanded for a new trial in accordance with this opinion ; costs to abide the final result. notes [ 1 ] we express no opinion concerning the validity of the chancellor ' s finding that there was no consideration for the option.	45 Md. App. 489 (1980) 413 A. 2d 1365 CARLTON G. BEALL v. CECELIA M. BEALL. No. 1065, September Term, 1979. Court of Special Appeals of Maryland. Decided May 8, 1980. * 490 The cause was argued before MOORE, LOWE and COVH, JJ. J. Frederick Garner, with whom was C. Calvert Lancaster on the brief, for appellant. Steven Rosen, with whom were Willoner, Calabrese & Rosen, P. A. on the brief, for appellee. MOORE, J. , delivered the opinion of the Court. This appeal concerns an alleged option agreement and a suit by Carlton G. Beall for the specific performance thereof. The Circuit Court for Prince George ' s County (Melbourne, J.) found the agreement unsupported by consideration and dismissed plaintiff ' s bill of complaint pursuant to Maryland Rule 535. From that order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, purchased a farm in Prince George ' s County from Pearl Beall. At that time, the Oropefty was farmed by Pearl ' s son, Calvin Beall. The record discloses that Carlton, the plaintiff, and Calvin were second cousins. Calvin was married to Cecelia M. Beall, the defendant herein. Carlton agreed that Calvin could continue to farm the property if he would pay the annual property taxes. Calvin and Cecelia owned and resided on a parcel of about one - half acre that was bordered on three sidfW by the farm bought by the plaintiff; and it is that parcel that is the subject of this dispute. On the day that plaintiff contracted to buy Pearl ' s farm, he obtained a three - year option to purchase Calvin ' s and 491 Cecelia ' s parcel for $ 28, 000. 00. The option recited a consideration of $ 100. 00 which was paid by check. In 1971, the parties executed a new option, for five years, but on the same terms and reciting an additional $ 100. 00 consideration. This 1971 option was never exercised by the plaintiff, but prior to its expiration the following language was appended at the bottom of the page: " As of October 6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agree to continue this option agreement three more years Feb. 1, 1976 to Feb. 1, 1979. / s / Calvin E. Beall / s / Cecelia M. Beall. " It is this purported extension that forms the basis for plaintiff ' s bill of complaint seeking specific performance of the agreement. Calvin died in August 1977, and Cecelia now holds the fee simple title by right of survivorship. In letters dated May 24, 1978 and September 14, 1978, the plaintiff adviQee Cecelia that he was electing to exercise the option. He scheduled settlement for October 5, 1978. As the chancellor found: " It is undisputed in this case that Mr. Carlton Beall did eventually hire attorneys to search the title, set a settlement date, attend the settlement, and was ready, willing and able to perform the contract. " Cecelia refused to attend settlement, and this suit for specific performance ensued. At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted the motion because she felt that the option agreements were not supported by consideration in that " no benefit. .. flowed to Cecelia Beall. " In addition, as to the 1975 alleged option, the chancellor ruled: " [T] here is no consideration recited in that extension or purported extension of the original * 492 option contract. And the one extension that had occurred in the interim, even then would also fail because there is no consideration stZteC in the extension. It is clear that consideration must pass for the extension each time, in some form of consideration. None is stated within the written four lines. " On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to oral transactions with Calvin, the deceased husband of the defendant. II Under Maryland law it is clear that " an option is not a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance, but a binding agreement if supported by consideration. " Blondell v. Turover, 195 Md. 251, 256, 72 A. 2d 697, 699 (160 ). In other words, an option is an agreement to keep an offer open that requires consideration to give it its irrevocable character. Goldman v. Connecticut General Life Insurance Co. , 251 Md. 575, 581, 248 A. 2d 154, 158 (1968 ). Once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding specific performance. Diggs v. Siomporas, 248 Md. 677, 681, 237 A. 2d 725, 727 (1968 ); Blondell v. Turover, supra, 195 Md. at 256, 72 A. 2d at 699. It is apparent, then, that an option must be supported by consideration in order to be irrevocable for the period provided in the option. When, however, the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes " a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance. .. . " Blondell v. Turover, supra, 195 Md. at 256, 72 A. 2d at 699. The failure of consideration destroys the irrevocability of the option; it nonetheless retains its essential characteristic as an offer to buy or sell for the 493 period stated in the option or until revoked. It has been recognized that equity will enforce a resulting contract despite lack of consideration for the option: " While the rule that equity will enforce a contract consummated by the acceptance of an option within the time and u(kn the terms of the option is often stated in such a way as to suggest or imply the necessity of consideration for the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed in the option within which acceptance could be made. " 71 Am. Jur. 2d, Specific Performance § 143 (1973) (footnotes omitted ). See 1A Corbin on Contracts § 263 (1963 ). See generally Kahn v. General Development Corp. , 40 Del. Ch. 83, 92, 174 A. 2d 307, 312 (1961) (failure of consideration " destroyed the irrevocability of the option " ). Burkhead v. Farlow, 266 N. C. 595, 597, 146 S. E. 2d 802, 804 (1966) (option without consideration was " mere offer to sell which defendants m7ghF have withdrawn at any time before acceptance " ); Rose v. Minis, 41 N. J. Super. 538, 543, 125 A. 2d 535, 538 (1956) (option which is mere offer is " simply a naked revocable authority " ). Assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $ 28, 000. The offer was open until February 1, 1979, but it was revocable at any time by action of Calvin and Cecelia Beall. As stated in the case of Holifield v. Veterans ' Farm & Home Board, 218 Miss. 446, 450, 67 So. 2d 456, 457 (1953 ): " It is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn. Since there was no consideration paid by the Veterans ' Farm and Home Board and * 494 Mauldin for the option, it could have Ve4n revoked by the Holifields at any time before the Veterans ' Farm and Home Board and Mauldin notified them that they intended to buy the land; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the consideration of the mutual promises. " (Emphasis added.) This statement is generally in accord with the Maryland cases, supra. The chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer to sell the property in dispute and whether or not there was a proper acceptance of that offer sufficient to create a contract specifically enforceable in equity. [1] These issues of offer and acceptance primarily involve factual determinations that initially must be evaluated by the chancellor. As an appellate court, we are limited to a review of the chancellor ' s findings under the " clearly erroneous " standard. Md. Rule 1086. But our review is dependent upon the existence of factual findings on the issues material to the case. Such findings were not made below. It was error for the chancellor to dismiss plaintiff ' s bill of complajn$ at the close of his case. A new trial, in accordance with this opinion, is necessitated. Order reversed; cause remanded for a new trial in accordance with this opinion; costs to abide the final result. NOTES [1] We express no opinion concerning the validity of the chancellor ' s finding that there was no consideration for the option.	45 Md. App. 489 (1980) 413 1365 CARLTON BEALL v. M. BEALL. 1065, September Term, 1979. Court of Special Appeals of Maryland. May 8, 1980. 490 cause was argued before MOORE, and JJ. J. Frederick Garner, with was C. Lancaster the brief, for Steven Rosen, with whom Willoner, Calabrese & Rosen, P.A. the brief, appellee. MOORE, J., delivered opinion the Court. This appeal concerns an alleged option agreement and a suit by Carlton Beall for specific performance thereof. The Circuit Court Prince George's County (Melbourne, J.) the agreement unsupported by consideration and dismissed plaintiff's bill of complaint pursuant to Maryland Rule 535. From that order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, purchased farm in Prince George's County from Pearl Beall. At that time, the property was farmed Pearl's son, Calvin Beall. The record discloses that Carlton, the plaintiff, and Calvin were cousins. was married to Cecelia M. Beall, defendant herein. Carlton agreed that Calvin could continue to farm the property if he would pay the annual property taxes. Calvin and Cecelia owned and resided on a parcel of about one-half acre that was bordered on three by the by the plaintiff; and is that parcel that is the of dispute. On the day that plaintiff contracted to buy Pearl's farm, he a option to purchase Calvin's and 491 Cecelia's parcel for $28,000.00. The option recited a of which was paid by check. In 1971, the parties executed a new option, for five years, but the terms reciting an additional $100.00 consideration. This 1971 option was exercised by the plaintiff, but prior to its expiration the following language was appended at the the page: "As of 6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agree to continue this option agreement three more years Feb. 1, 1976 to Feb. 1, 1979. /s/ Calvin E. /s/ Cecelia M. Beall." is this purported that forms the for complaint seeking performance of the agreement. Calvin in August 1977, and Cecelia now holds the fee simple by right of survivorship. In letters dated 24, 1978 and September 14, 1978, the plaintiff advised Cecelia he was electing to the option. He scheduled settlement for October 5, As the chancellor found: "It is undisputed in this case that Carlton Beall did eventually hire to search the title, set a settlement date, the settlement, and was ready, willing and to perform the contract." Cecelia refused to attend settlement, and suit for specific performance ensued. At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted the motion because she felt the option were not supported by consideration in that "no ... flowed to Cecelia Beall." addition, as to the 1975 alleged option, the chancellor ruled: "[T]here is no consideration recited in that extension or purported of the 492 option contract. And the one extension that had occurred in the interim, even then would also fail because there is no stated in the extension. It is clear that consideration must pass for the extension each time, in some form of consideration. None is stated within the written four lines." On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to transactions with Calvin, the deceased of the defendant. II Under Maryland law it is "an option is not a offer to which can be withdrawn by the at any time before acceptance, but a binding agreement if supported by consideration." Blondell v. 195 Md. 251, 256, 72 697, 699 (1950). In other words, an option is an agreement to keep an offer that requires consideration to give its irrevocable character. Goldman v. General Life Insurance Co., 251 Md. 575, 581, 248 154, 158 (1968). Once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding performance. Diggs v. Siomporas, 248 677, 237 A.2d 725, 727 (1968); Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. It is apparent, then, that an option must be supported by consideration order to be irrevocable for the period provided in the option. When, however, the consideration allegedly supporting an option or nonexistent, the option no irrevocable but rather it becomes "a mere offer to sell, which can be withdrawn by the at any time before acceptance...." Blondell v. Turover, supra, Md. at 72 A.2d at 699. The failure of consideration destroys the irrevocability of the option; it retains its essential characteristic as an offer to buy or sell for the 493 period stated in the option or until revoked. has been recognized that equity will enforce a resulting contract despite lack of consideration for the option: "While the rule that equity will enforce a contract consummated by the acceptance of an option within the time and upon the terms of the option is often stated such a way as to suggest or imply the necessity of consideration for the all that is meant most cases is that a is necessary to the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed the option within which acceptance could be 71 Am.Jur.2d, Specific Performance § 143 (1973) (footnotes omitted). 1A Corbin on Contracts § 263 (1963). generally Kahn General Development Corp., 40 Del. Ch. 83, 92, 174 A.2d 307, 312 (1961) (failure of consideration "destroyed the irrevocability of the option"). Burkhead Farlow, 266 N.C. 595, 597, 146 S.E.2d 802, 804 (1966) without consideration was "mere offer to which defendants might have withdrawn at any time before acceptance"); v. Minis, 41 N.J. Super. 538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is "simply a naked revocable authority"). Assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $28,000. The offer was open until 1, but it was revocable at any time by of Calvin and Cecelia Beall. As stated in the case Holifield v. Veterans' Farm & Home Board, 218 Miss. 446, 450, 67 So.2d 456, 457 (1953): "It is well settled that is not binding as a contract where there is no consideration, unless it is within limit and before the offer is withdrawn. Since there was consideration paid by the Veterans' Farm and Home Board and *494 Mauldin for the option, it could have been revoked by Holifields at any time before the Veterans' Farm and Home Board and Mauldin notified them that they intended to buy the land; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the of the mutual promises." added.) This statement is generally in accord with the Maryland cases, supra. The chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer sell the property in dispute whether or not there was a proper acceptance of that offer sufficient to create specifically enforceable in equity.[1] These issues of offer and acceptance involve factual that initially must be evaluated by the chancellor. As an appellate court, we are limited review of chancellor's findings under the "clearly standard. Md. Rule 1086. But our review is dependent existence of factual findings on the issues material the case. Such findings were not made below. It was for the chancellor to dismiss plaintiff's bill of at close of his case. A trial, in with this opinion, necessitated. Order reversed; cause remanded for a new trial in accordance with this opinion; costs to abide the final result. NOTES [1] We no concerning the validity of the chancellor's finding that there was no consideration for the	45 Md. APP. 489 (1980) 413 A.2D 1365 CARlTOn g. bEALl V. ceCELiA m. bealL. NO. 1065, sEpTEmBER tErM, 1979. COurT Of SPEciaL appeaLS oF MArYLAnd. DecideD mAy 8, 1980. 490 THe CausE Was ARgUeD beFoRe mOore, LOwE And couCH, Jj. J. fREdErIcK GarnER, WitH wHOm wAS c. cALverT laNCastER oN THe briEf, for ApPELlAnt. sTevEN RoseN, WITH wHom WeRe willONER, calAbReSe & ROSen, P.A. ON THe brieF, For AppeLlEE. mOOre, J., DELIvEreD THE OpINIon OF The COurT. thIs AppeaL COnCeRNS aN alleGed OpTIOn aGREemENt AnD a SuIt bY cArlTon G. BeAll for tHE SpeCifIc pErFoRmANcE THeREof. ThE cIRcuiT cOURt FoR priNCE GeORgE's cOUNTy (MELBoUrnE, j.) FoUND the aGREEMEnT unSUppOrTED by coNsIdERaTioN AND dIsmiSSEd pLAiNtIff'S BIlL of cOMPLaInt pUrSUANT tO MaRylaND RUlE 535. fROM That ordEr, HE APPEALS To thIS CoURT. i iN 1968, THE pLAiNtIff, CarLtOn G. BeAll, PURChAsed a fARM IN PrINcE GeOrgE'S CoUnTy from pEarL BEAlL. at That tImE, ThE property Was FarMed BY pEarl's sON, CALviN bEalL. THe RECORD DIsCLOseS THaT CaRLToN, tHe pLAInTiFf, AnD CALVin Were sEcoND couSiNS. cALvIn was MARrIED TO CeceLiA M. BeaLl, ThE DefenDant hErEIn. carLtON aGreeD THAt cALVin CoULD ConTInUe To FaRm tHE prOpeRTY IF HE WouLd pAY tHe anNUAl PrOPerty taXes. caLVIn ANd CEcelIA owNED anD resIDeD oN A PArCEl oF aBOUT onE-hALf aCre tHaT wAS bORdEREd On THreE siDEs BY tHE fArm bOUGHT by the plaintIFf; and It iS tHAT PARcEl THat IS tHE SUBjECT oF this dISpUTe. on THe dAy that plAiNtIff contrACTed To BuY pEaRL'S faRM, hE obtAinEd a ThREE-YEAr opTioN TO pUrchASe cALVIN's AnD 491 cEcELiA's pARcEl for $28,000.00. tHe OpTIon RECitED a COnSIDeRAtiOn of $100.00 WHIcH WAs PaID by CHEcK. in 1971, the pArTies ExeCuTeD a NEW option, fOR FiVe yEArs, BUt oN ThE sAme teRmS aND ReCitIng AN adDITIoNAl $100.00 CONSIDERAtion. This 1971 opTiOn Was NEvER ExERCISED BY tHe plAiNTIff, BUT PrIoR tO ItS ExpiRatiON tHE FolloWiNg LaNGuAgE Was AppeNDED at the bOtToM OF tHe pAgE: "aS of ocTobER 6, 1975, wE, CAlVIn e. BealL aNd cECELIA M. BealL, AgreE TO contINuE this OPTIoN AGREeMeNT THRee MoRE YEArs FEB. 1, 1976 To fEB. 1, 1979. /S/ calVIN E. BEaLl /S/ CECElIa M. beALl." IT iS This pUrPORtED ExtENSIOn ThAt FoRmS The bASiS fOR pLAInTiff's Bill OF cOMplaInt seEKiNg SpeCIfic PeRfORMAncE oF THE AGReeMENT. cAlVin dIEd IN AuGUSt 1977, aND CECELIa NOW holDs The fEe SiMplE TITle by rigHT Of SuRviVOrShIp. IN lEttERS DAtEd May 24, 1978 and sePTeMBER 14, 1978, ThE PlaIntIFf ADVISeD CECELia tHaT HE Was eLECtiNg TO EXeRcISe THE OpTIOn. hE SCheduLeD sETTlemeNt FOr oCTOBEr 5, 1978. as tHe cHancEllOR found: "iT is uNDiSpUTED iN tHIS cASe ThAT MR. CARlton bEaLl DiD eVENtuALLY hIRe atTOrneYS to SEARch The TITLE, set A sEtTleMENT dAtE, aTTenD thE sEtTLEMENt, ANd was ReadY, WILlINg and AbLE tO PErForM The CONTraCt." ceceLIA rEFuSEd to AtTEnD sETTLEMENT, anD ThIS suiT foR spEcIfIc pErfORMAnCE ENsued. AT TRiaL, afTEr PlAinTifF prEsenTED hIs evIdence, CEceLIA moVED TO DiSmIsS The bIll OF COmPLAINT. THe cHaNCELlOr granTEd the MOTIon BecauSE sHe FelT THaT THe OptIoN AgrEemENts wErE NOt SupPORted by CoNSIDERaTion iN thaT "NO beNefiT ... FLoWeD To CEcElia bEALL." In aDdiTIon, as To the 1975 allEged OPtiON, The CHancellOR rULEd: "[T]hERe is nO cONsIdERaTioN RECiTed In THAT exTENSIon or pURPOrtED EXTEnsion oF thE orIginAL 492 oPtiON COntract. anD ThE one ExTEnsion ThAT haD oCCurrEd iN tHE INteRiM, even ThEN WOulD AlSO FaIl beCAusE tHeRe iS NO CoNSIDeRaTION staTEd in thE eXTeNSion. it IS CLEar That cOnsIDeratiON mUst PaSs For the EXTEnSion eACh TIMe, in sOme ForM of CONsideRatIon. noNe is sTaTed wItHiN ThE WRIttEn FOuR lINes." on APPeaL, tHe plAIntIFf CoNtENdS THAT ThE ChAnCeLlor ErRed In dIsmISsiNG tHe bIll OF cOmplAiNt ANd in EXClUdinG CeRtAIN tEstiMoNy rElativE to Oral trAnSactiOnS WiTH CALVin, tHE deceaSEd husBAnD OF ThE DefeNdaNT. II uNdeR maryland law It iS CleAR THaT "An OpTION Is noT A mere oFfer tO SELL, whIch CaN be WITHDrAwN by THe oPtIONOR aT anY TiMe BefORe acceptaNce, but a BIndiNg agreeMEnT iF suPPORTEd by conSiDERAtIon." BLondeLl v. tUrover, 195 mD. 251, 256, 72 a.2D 697, 699 (1950). In oTHeR wORdS, AN opTIon IS AN aGREemeNt To kEeP aN OffeR opEn tHaT rEquIRes ConsIDeratIOn to giVe it ITS iRreVOcAblE chARAcTEr. golDMAn v. connEcTiCuT gEneral LIfE iNsuraNCE cO., 251 md. 575, 581, 248 A.2D 154, 158 (1968). Once The oPtioN is exercISED bY thE OPTIoneE A bINdINg CONtRaCt IS CrEaTED tHAt MaY be ENFOrCeD thRoUgH A DecrEE COMMANDinG specific pErformANCe. dIGGs v. SIoMPOrAS, 248 mD. 677, 681, 237 a.2d 725, 727 (1968); BlondEll V. tURovER, SUpra, 195 md. At 256, 72 a.2d at 699. iT is APPAReNT, THEn, THat an OpTIOn mUst Be suPPORTED bY CONSIderATIon In order to Be IrReVOcABle FOR thE pErIOD PROvideD iN thE oPTioN. WhEN, hOwever, the CONsIDeRAtion AlleGEdLY sUPpORtiNG An oPTION FAilS oR is NOnexiSTEnt, tHE OptIon iS No LonGeR iRREvOCabLe BuT RatHEr It bEcomEs "A mErE OffEr to seLL, WhIch CAn BE WiThDRAWn bY THe OPTIONOr at aNY TiME beFORe acceptANCe...." BlONDELL v. tUroveR, supRA, 195 mD. At 256, 72 A.2D At 699. THE FAiLUre OF ConsIDErAtIoN DEStroys tHE iRrevOcaBilIty Of tHE OPtION; It NOnETHEleSs reTAiNS Its EsseNtiAl cHARacTerIstic AS an oFfeR to BUy oR SeLl foR tHE 493 PeriOD StAteD iN The oPTiON or untiL ReVokeD. iT HAs BeEn ReCoGniZeD That eQUIty wILl enForcE A ReSUltING contrACT DEspITE LacK Of ConSIDeRATiOn FOR THe OpTioN: "whILe The rUle THat EQUITy WilL eNforCe a coNtRact cONsuMMATeD by thE accepTAncE Of an opTIOn WITHIN the tIMe AnD UPon the tERMS oF THe optiOn Is OftEN staTEd iN sUCh A way AS TO suggEST or implY tHE NeCESSitY of CONsiDEratIon for ThE OptIOn, aLl thaT is Meant in mosT caSES IS THaT A CoNsIDErAtioN is nEcEssArY tO prEvenT tHE DeFeNDAnT FROm assertiNg hiS WithdrawaL Of thE OptioN BefORe itS AccEPTANce bY ThE PlaINTiFF AnD bEFore THE EXPIRaTION Of The time FIxED in tHe OPTIoN wIthiN Which AcCepTANcE coulD be MADE." 71 aM.jUr.2d, sPecifIC peRFOrMaNce § 143 (1973) (FooTNoTES omITTEd). SeE 1A CorBIn oN COntRaCts § 263 (1963). See GEnerALLy kAHN v. gENErAL DEVELoPMEnt CorP., 40 dEL. ch. 83, 92, 174 a.2D 307, 312 (1961) (FaIlURE of cOnsIderATion "deSTrOyED tHe IrREvoCabILITY oF the OpTIOn"). BUrkHeAD v. FARloW, 266 N.C. 595, 597, 146 S.e.2d 802, 804 (1966) (OptIon WiTHOUt CONsiDeRAtion Was "mERe ofFer to SeLl wHIch DEFeNdANTs Might haVE witHdrawn aT aNy time bEFORe ACcEpTaNce"); rOsE v. miNIS, 41 n.J. SupER. 538, 543, 125 A.2d 535, 538 (1956) (OptIOn whiCh is MEre oFfER iS "SImPlY A nakED REvOCABlE aUtHorIty"). AssuMing, ArgUENDo, that thE 1975 OptIon waS UnSUpPOrTed bY CONSideRatION, iT REMaINed As an oFFER tO SeLL tHe paRcel For $28,000. The OfFer WAs OpeN uNtIL febRUarY 1, 1979, bUt It WaS REVoCAbLE at Any timE bY AcTIon OF cALViN And CeCELIa bEaLl. as STaTED in ThE cASe oF hOliFIELD v. VeTERAnS' fARM & home BOaRd, 218 MIss. 446, 450, 67 SO.2d 456, 457 (1953): "It IS weLL SeTTLEd tHat An Option iS NoT BiNdINg As a cONtRAcT WHERE THerE Is no CONsideRatioN, uNlEss IT Is ACcEpTed WIthIn THe tImE lImiT anD BefORE THE OFfER IS wIThdrawN. siNCe THeRE waS No cOnSideRaTION PaID BY THE vetEraNS' faRm ANd hOme boarD anD *494 mauLDIN fOR THe OptIOn, It COuLD HaVE bEEN ReVoKeD by thE hOLIfIeldS at ANY Time BeFORE the veteRANs' FARM and HoME bOaRd AnD MAulDin nOtIfied thEM thAt They inteNDed To bUY the lANd; bUT SiNcE ThE offeR WaS accEptED WIThiN the TiME LiMit AnD BEFoRE WIThdRaWaL, the coNTRact becaME BinDing uPoN all pArTIeS AS It was THereaFter suPporTeD by The conSIdeRaTiOn OF tHE mUTUAL promIseS." (emPHaSIS ADdEd.) This statemeNt is gEneraLLY in ACcoRD wITh tHe maRyLaNd CASes, SuPra. THe chAncEllOr ShOulD, tHErefOre, HAve DETERmiNeD WHETheR OR NOt THERE WaS A valID, UNrevoKED ofFEr to SelL thE PRoPErtY iN DiSPuTe aND wHeTHER or NoT There wAS A PrOpEr ACCEpTanCE Of that OFfer SuFFicienT To CrEaTE A CoNtraCt SPecIFICAlLY EnFoRCEAblE iN equITy.[1] THese ISSuES of oFfER AND accePTAnCE PRImaRily invOLvE fAcTUal dETermINAtions tHaT iniTiaLLy Must BE EVALUATEd bY tHE ChaNcELlOR. aS AN appeLLaTE CoUrT, wE ARE LImIteD to a REVIeW oF The ChAncEllor's FINdiNgS uNder The "CleaRlY ERroNeoUS" StaNdard. Md. rule 1086. bUt our reVIeW is DePenDENt upON ThE EXIStENCe OF FactUAl fiNDiNGs ON thE isSueS MatERiAL to The caSE. SucH FInDiNGS were not MADe BELOw. IT Was eRROr FOR THE cHaNcEllOr TO diSmISS PlAINtiFf'S BiLL Of cOmPLAiNT At THE CLOsE of His cAse. a nEW tRiAL, iN ACcORdANCE With thIS oPINiOn, Is NECessITATEd. oRdeR rEVeRsED; CAusE ReMAnDEd foR A NEW tRIal in AcCOrDANCe wiTh thiS OPInIon; COStS To aBIdE ThE FINAL RESult. nOTEs [1] We expREsS No OpiNIOn cONCERNING THE VALIditY of the ChANCElLOR's FiNdING that There waS nO ConsIDErAtiOn FoR the OPTioN.	45 Md. App. 489 (1980) 413 A.2d 1365CARLTON G. BEALL v. CECELIA M. BEALL. No.1065, September Term, 1979. Court of Special Appeals of Maryland. DecidedMay 8, 1980. 490 The cause was argued before MOORE, LOWE and COUCH,JJ. J. Frederick Garner, withwhomwas C. CalvertLancaster on the brief, for appellant. Steven Rosen, with whom wereWilloner, Calabrese &Rosen, P.A. on the brief, for appellee.MOORE, J., delivered the opinion of the Court. This appeal concernsan alleged option agreementand a suit by Carlton G. Beall for the specific performance thereof. The Circuit Court for PrinceGeorge's County (Melbourne, J.) found theagreement unsupported by consideration and dismissed plaintiff's bill of complaint pursuant to Maryland Rule 535. Fromthat order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, purchased a farm in Prince George's County from Pearl Beall. At that time,the property was farmed by Pearl's son, CalvinBeall. The record discloses that Carlton, the plaintiff, and Calvin were second cousins. Calvinwas marriedto Cecelia M. Beall,the defendant herein. Carlton agreed that Calvin could continue tofarm the property if he would pay the annualproperty taxes. Calvin and Cecelia owned and resided on a parcel of about one-half acre that was bordered on three sides by the farm bought by the plaintiff; andit is that parcel that is the subject of this dispute. On the day that plaintiff contracted to buy Pearl's farm, he obtained a three-year option to purchase Calvin's and 491 Cecelia's parcel for $28,000.00. The option recited a consideration of $100.00 which was paid by check. In 1971, the partiesexecuted a newoption, for five years, but onthe same terms and reciting an additional $100.00 consideration. This 1971 optionwas never exercised by the plaintiff, butprior to its expiration the following language was appended atthe bottomof thepage: "As of October6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agreeto continue this optionagreement three more years Feb. 1, 1976 toFeb. 1, 1979. /s/ CalvinE. Beall /s/ Cecelia M. Beall." It is this purported extension that forms the basis for plaintiff's bill of complaint seeking specific performance of the agreement. Calvin died in August 1977, and Cecelianow holdsthe fee simple title by right of survivorship. In letters datedMay 24, 1978and September 14, 1978, the plaintiff advised Cecelia that he waselecting to exercise the option. He scheduled settlementfor October 5, 1978. As the chancellor found:"It is undisputed inthis case that Mr. Carlton Beall dideventually hireattorneys to search the title,set asettlement date, attendthe settlement, and wasready, willing and able to perform the contract." Cecelia refused to attend settlement, and this suit forspecific performance ensued. At trial,after plaintiff presented his evidence, Cecelia moved todismiss the bill of complaint.The chancellor grantedthe motion because she felt that the option agreements werenot supported by consideration in that "no benefit ... flowedto Cecelia Beall."In addition, as to the 1975 alleged option, the chancellor ruled: "[T]here isno consideration recited in thatextension or purported extension of the original 492option contract. And the oneextension that hadoccurred in the interim, even then would also fail because there is no consideration statedin theextension. It is clear thatconsideration must pass forthe extension each time, in someform of consideration. None is stated within the writtenfour lines." On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relativeto oraltransactionswith Calvin,the deceased husband ofthe defendant. II Under Maryland law it is clearthat "an option isnot amere offer to sell, which can be withdrawn by the optionor at anytimebefore acceptance, but a binding agreementif supported byconsideration." Blondell v. Turover, 195 Md. 251, 256,72 A.2d 697, 699 (1950).In other words, an option is an agreement to keepan offer open thatrequires consideration to give it its irrevocablecharacter. Goldman v. ConnecticutGeneral Life Insurance Co.,251 Md. 575, 581, 248 A.2d 154, 158 (1968). Once the option is exercised bytheoptioneea bindingcontract is created that may be enforced througha decree commanding specific performance. Diggs v. Siomporas, 248 Md.677, 681,237 A.2d 725, 727 (1968); Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at699. It is apparent, then, that an option mustbe supported by consideration in order to be irrevocable for the period provided in the option. When, however,the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes "a mere offer to sell, which can be withdrawnby the optionor at any time before acceptance...." Blondell v. Turover, supra, 195Md. at 256, 72 A.2d at 699. The failure of consideration destroys theirrevocability of the option; it nonetheless retains its essential characteristic as an offer to buy or sell for the 493 period stated in the option or untilrevoked. It has beenrecognized that equity will enforce aresulting contract despite lack of consideration for the option: "While the rule thatequity will enforce a contractconsummated by the acceptance ofan option within the time and upon theterms of the option is often stated insucha way as to suggest or imply the necessity of considerationfor the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal ofthe option before its acceptance by the plaintiff and before theexpiration ofthe time fixed inthe option within whichacceptance could be made." 71 Am.Jur.2d, Specific Performance § 143 (1973) (footnotes omitted). See 1A Corbin on Contracts § 263 (1963). See generally Kahn v. GeneralDevelopment Corp., 40 Del. Ch. 83,92, 174 A.2d 307, 312 (1961) (failure ofconsideration"destroyedthe irrevocability of the option"). Burkhead v. Farlow, 266 N.C. 595, 597, 146 S.E.2d 802, 804 (1966) (option without consideration was "mere offer to sell which defendants mighthave withdrawn at any time before acceptance"); Rose v. Minis, 41 N.J. Super.538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is "simplyanaked revocable authority"). Assuming, arguendo, thatthe 1975 option was unsupported by consideration,it remained as an offer to sell the parcel for $28,000.The offer wasopen until February 1, 1979, but it was revocable at any time byaction of Calvin and Cecelia Beall. As stated in thecaseof Holifield v. Veterans' Farm & Home Board, 218 Miss. 446,450, 67 So.2d 456, 457 (1953): "It is well settled that an option is not binding as a contract where there is noconsideration,unless it is accepted withinthe time limit and before the offer is withdrawn. Since therewas noconsideration paid by the Veterans'FarmandHome Board and *494 Mauldin forthe option,it couldhavebeen revokedby the Holifields atany time before the Veterans' Farm and Home Board andMauldin notified them that they intended to buythe land; but since theoffer was accepted within the time limit andbefore withdrawal,the contract became binding upon allparties as it was thereafter supported by the consideration of themutual promises." (Emphasis added.) This statement is generally in accord with the Marylandcases, supra. The chancellor should, therefore,have determined whether or notthere was a valid, unrevoked offer to sell theproperty in dispute and whether ornot there was a proper acceptance of that offer sufficient to create a contract specificallyenforceable in equity.[1] These issues ofofferand acceptance primarily involve factual determinationsthat initially must be evaluated by the chancellor. As an appellate court, we are limited to a review of the chancellor's findings under the "clearly erroneous" standard. Md. Rule 1086. But our review is dependentuponthe existence offactual findings onthe issues material to the case. Such findings were not made below. It was error for the chancellor to dismissplaintiff's bill of complaint at the close of his case. A new trial, in accordance with this opinion, is necessitated. Order reversed; cause remanded for a new trialin accordance withthis opinion; costs toabide the finalresult. NOTES[1] We express no opinion concerning the validityof the chancellor's finding that there was noconsideration for the option.	45 Md. App. _489_ (1980) 413 A.2d _1365_ CARLTON _G._ BEALL v. CECELIA M. BEALL. _No._ 1065, September Term, 1979. Court _of_ Special _Appeals_ of Maryland. Decided May 8, 1980. 490 The _cause_ was argued before MOORE, LOWE and COUCH, JJ. J. Frederick _Garner,_ with whom was C. Calvert Lancaster on _the_ brief, for appellant. Steven Rosen, with whom were _Willoner,_ Calabrese _&_ Rosen, _P.A._ on the brief, for appellee. _MOORE,_ _J.,_ delivered the opinion of the Court. This _appeal_ concerns an alleged option _agreement_ _and_ a _suit_ by Carlton G. _Beall_ _for_ _the_ specific performance thereof. The Circuit _Court_ _for_ Prince George's _County_ (Melbourne, _J.)_ found the agreement unsupported _by_ consideration and dismissed plaintiff's bill of complaint _pursuant_ to Maryland _Rule_ 535. From _that_ order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, _purchased_ a farm in Prince George's County from Pearl Beall. At that _time,_ the property was _farmed_ by Pearl's son, Calvin Beall. The _record_ discloses that Carlton, the plaintiff, _and_ Calvin were second cousins. Calvin was married to Cecelia _M._ _Beall,_ the defendant _herein._ Carlton agreed _that_ _Calvin_ could continue to farm the property if he _would_ pay the annual property taxes. Calvin _and_ Cecelia owned _and_ _resided_ on a parcel _of_ about one-half acre that _was_ bordered _on_ _three_ sides by the _farm_ bought by _the_ plaintiff; and it is _that_ parcel that _is_ the subject of this dispute. On the day that _plaintiff_ contracted to buy Pearl's farm, he obtained a _three-year_ _option_ to purchase Calvin's _and_ 491 Cecelia's parcel for $28,000.00. The option recited a consideration of $100.00 _which_ was _paid_ by check. _In_ 1971, _the_ parties executed a new option, for five years, but _on_ the same _terms_ and reciting an additional $100.00 consideration. This 1971 option was never _exercised_ by the plaintiff, but prior to its expiration the _following_ _language_ was _appended_ at _the_ bottom of the page: "As of _October_ 6, _1975,_ we, _Calvin_ E. Beall and Cecelia M. Beall, agree _to_ continue this option agreement three _more_ years Feb. 1, 1976 to Feb. _1,_ 1979. /s/ Calvin E. Beall /s/ Cecelia M. Beall." _It_ is _this_ purported extension that forms the basis for plaintiff's bill of _complaint_ _seeking_ specific performance of the agreement. Calvin _died_ in August 1977, and Cecelia now _holds_ the fee simple title by right of survivorship. In letters dated May _24,_ 1978 and September 14, 1978, the plaintiff advised Cecelia _that_ he _was_ _electing_ to exercise the option. He scheduled settlement _for_ _October_ 5, 1978. As the chancellor found: "It _is_ undisputed _in_ _this_ case that Mr. Carlton _Beall_ _did_ _eventually_ hire attorneys to search the _title,_ _set_ a settlement date, _attend_ the settlement, and was ready, _willing_ and able to perform the contract." Cecelia refused to attend settlement, and _this_ suit for specific _performance_ ensued. At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted _the_ motion because she felt _that_ the _option_ agreements were _not_ supported by _consideration_ in _that_ "no _benefit_ ... flowed to Cecelia Beall." In addition, as to the 1975 alleged option, the chancellor _ruled:_ "[T]here is no consideration recited in that extension _or_ _purported_ extension _of_ _the_ original 492 option contract. And _the_ one extension that _had_ occurred _in_ the interim, even then would also fail because there is no consideration stated in _the_ extension. It is _clear_ that consideration _must_ pass for the extension _each_ time, _in_ some form of consideration. None is _stated_ _within_ the written four lines." _On_ appeal, the plaintiff _contends_ that the _chancellor_ erred in _dismissing_ _the_ _bill_ of complaint and in excluding certain testimony relative to oral transactions with Calvin, _the_ _deceased_ husband of the defendant. II Under Maryland law _it_ is clear that "an option _is_ not a mere offer to sell, _which_ can be withdrawn _by_ the optionor _at_ any time before acceptance, _but_ a binding agreement if supported by consideration." Blondell _v._ _Turover,_ 195 _Md._ 251, 256, _72_ A.2d 697, _699_ (1950). _In_ other _words,_ an option is _an_ agreement to keep an offer open that requires consideration to give it its irrevocable _character._ Goldman v. Connecticut _General_ Life Insurance Co., 251 Md. 575, _581,_ 248 A.2d 154, 158 (1968). _Once_ the option _is_ exercised by the optionee a _binding_ _contract_ is created that may be enforced _through_ _a_ decree commanding specific performance. _Diggs_ v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, _727_ _(1968);_ Blondell v. _Turover,_ supra, 195 Md. at 256, 72 _A.2d_ _at_ _699._ _It_ is _apparent,_ then, that an _option_ must be supported by consideration _in_ order to _be_ irrevocable for _the_ period provided in the option. When, _however,_ the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but _rather_ it becomes "a _mere_ _offer_ to sell, which can be withdrawn by the optionor at _any_ time before acceptance...." Blondell v. _Turover,_ supra, _195_ Md. at 256, 72 A.2d at 699. The _failure_ of consideration destroys the irrevocability of the option; it nonetheless retains its _essential_ characteristic as an offer to buy or sell for the 493 _period_ stated in _the_ option _or_ until revoked. It _has_ _been_ recognized that equity _will_ enforce a resulting contract despite _lack_ of consideration for _the_ option: "While the rule that equity will enforce a contract _consummated_ by the acceptance of an _option_ _within_ the time and _upon_ the terms of the option _is_ often stated in such a _way_ _as_ to _suggest_ or imply the _necessity_ of consideration for the option, all that is meant _in_ most cases _is_ that a _consideration_ is necessary to prevent _the_ defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time _fixed_ in _the_ option within which acceptance could be made." 71 Am.Jur.2d, Specific Performance § 143 (1973) (footnotes omitted). See 1A Corbin on Contracts _§_ 263 (1963). See generally Kahn v. General _Development_ Corp., 40 Del. Ch. _83,_ _92,_ 174 _A.2d_ 307, 312 (1961) (failure _of_ consideration "destroyed the irrevocability of _the_ option"). Burkhead v. _Farlow,_ _266_ _N.C._ 595, 597, 146 _S.E.2d_ 802, 804 _(1966)_ (option _without_ consideration was "mere offer to sell which defendants might _have_ withdrawn at _any_ time _before_ acceptance"); Rose v. Minis, 41 _N.J._ Super. 538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is _"simply_ a naked revocable authority"). _Assuming,_ arguendo, _that_ _the_ 1975 option was unsupported by consideration, it remained as an _offer_ _to_ sell the parcel for _$28,000._ The offer was open until February 1, _1979,_ but it was revocable _at_ any time by action of Calvin and Cecelia _Beall._ As stated in the case _of_ Holifield v. Veterans' Farm _&_ Home _Board,_ 218 Miss. _446,_ 450, 67 So.2d 456, 457 (1953): "It is _well_ settled that an _option_ is not binding as a contract where there _is_ no consideration, unless it is _accepted_ within the time limit _and_ before the _offer_ is _withdrawn._ Since there was no consideration paid by the Veterans' Farm and Home Board _and_ *494 _Mauldin_ for _the_ option, it could have been revoked _by_ _the_ Holifields at _any_ time before _the_ Veterans' Farm and Home Board and _Mauldin_ notified them _that_ _they_ intended to buy the _land;_ but _since_ the _offer_ _was_ accepted _within_ the time limit and _before_ withdrawal, the contract became binding upon all parties as it was thereafter _supported_ by the consideration _of_ the mutual _promises."_ (Emphasis added.) This statement is generally _in_ accord with _the_ Maryland cases, supra. _The_ chancellor should, therefore, _have_ determined whether or _not_ there was a valid, unrevoked offer to _sell_ the property in dispute _and_ whether or not there was a proper _acceptance_ of that offer _sufficient_ to create _a_ contract specifically enforceable _in_ equity.[1] _These_ issues of offer and acceptance primarily involve factual determinations that initially must be _evaluated_ _by_ the chancellor. As _an_ appellate court, we are limited to a _review_ of the chancellor's findings _under_ the "clearly erroneous" standard. _Md._ Rule _1086._ But our _review_ is dependent upon _the_ existence of factual findings on the issues material to the case. _Such_ findings _were_ not made below. It _was_ error for the chancellor _to_ _dismiss_ plaintiff's bill of complaint at the close of his case. A new trial, _in_ _accordance_ with this opinion, is necessitated. Order reversed; cause remanded for a new _trial_ in accordance with this opinion; costs to abide the final result. NOTES _[1]_ We express no _opinion_ _concerning_ the validity of the chancellor's _finding_ that _there_ was no consideration for the option.
927 F.Supp. 171 (1996) Ernest HALFHILL, d/b/a Halfhill Trucking, Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant. Civil Action No. 95-484. United States District Court, W.D. Pennsylvania. March 7, 1996. 172 173 Stephen I. Richman, Ceisler, Richman & Smith, Washington, PA, Gerald P. Duff, Lodge L. Hanlon, John G. Paleudis, Todd M. Kildow, Hanlon, Duff, Paleudis & Estadt, St. Clairsville, OH, for plaintiff. Michelle O. Gutzmer, United States Attorney's Office, Pittsburgh, PA, Charles M. Flesch, Robert S. Attardo, United States Department of Justice, Tax Division, Washington, DC, for United States of America Internal Revenue Service. MEMORANDUM OPINION BLOCH, District Judge. Presently before the Court is defendant's motion for partial summary judgment. For the reasons set forth in this opinion, the Court will grant the defendant's motion. I. Background The facts of record are as follows. In 1978, plaintiff purchased a tractor trailer and started a trucking company called Halfhill Trucking (HT), a sole proprietorship. Plaintiff operated HT as a leasing venture; that is, plaintiff leased HT's truck to various interstate commerce carriers and also provided a truck driver who hauled loads for the carriers. During 1978 and the first half of 1979, plaintiff's son, Ken Halfhill (Halfhill), was HT's sole truck driver. Although Halfhill's primary duty was to drive the truck, Halfhill also had the authority to negotiate with the carriers regarding future leasing of HT's truck. HT, via plaintiff, paid Halfhill based on a percentage of what the carriers paid to lease the truck. During the 1978-1979 period, plaintiff treated Halfhill as his employee and issued him federal Form W-2's. Plaintiff also paid the required federal employment taxes, including social security and unemployment taxes, on Halfhill's earnings. In the middle of 1979, however, Halfhill left HT and became an employee of Sentle Trucking (Sentle). Plaintiff thus decided to modify HT's business, leasing HT's truck to only one carrier Sentle. Subsequently, in late 1981, Sentle's business was deteriorating and Sentle's exclusive lease with plaintiff expired. Plaintiff did not renew this lease; rather, plaintiff purchased another truck and in 1982 began operating HT in a manner more similar to when plaintiff had started the company. Specifically, HT's trucks were leased to different carriers and Halfhill, who had left Sentle, as well as other individuals, drove HT's trucks for the carriers. All of the drivers of HT's trucks had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on a percentage of what the carriers paid to lease the trucks, as Halfhill was paid in the past. From 1982 until mid-1990, however, plaintiff did not treat the individuals who drove HT's trucks as employees. Rather, plaintiff considered the drivers, including Halfhill, to be independent contractors for federal tax purposes and, therefore, plaintiff did not pay employment taxes on the drivers' compensation. Eventually, in light of tax assessments levied by the Internal Revenue Service, plaintiff paid employment taxes for his drivers for the second half of 1990 in the amount of $49.24. After paying this amount, plaintiff filed an administrative claim seeking a refund of the same. The IRS denied the plaintiff's administrative claim, and plaintiff instituted the instant action seeking a refund of the employment taxes that he had paid. Plaintiff claims that he is entitled to this refund on the ground that HT's drivers are independent contractors, not his employees. Moreover, plaintiff contends that even if the drivers are his employees, plaintiff is entitled to protection under § 530 of the Revenue Act of 1978 which exempts certain employers from tax liability when they have in good faith misclassified their employees as independent contractors. Defendant contests plaintiff's entitlement to a refund, asserting that HT's drivers are, in fact, employees of plaintiff and that plaintiff is not entitled to protection under § 530 of the Revenue Act of 1978. Moreover, defendant filed a counterclaim against plaintiff seeking to recover $222,720.45 of unpaid employment taxes assessed against plaintiff for 174 the 1988 through 1990 tax years. Plaintiff denies liability with regard to the defendant's counterclaim for the same reason that he asserts that he is entitled to a refund. At this time, defendant has moved for summary judgment with regard to the single issue of whether plaintiff is entitled to relief under § 530 of the Revenue Act of 1978.[1] II. Discussion Summary judgment may be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). Thus, where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's evidence as true. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that "the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Id.; Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The non-moving party "must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or ... vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). If the non-moving party does produce contradictory evidence, however, then the "believability and weight of the evidence remains the province of the factfinder." Big Apple, 974 F.2d at 1363. In this case, defendant asserts that it is entitled to summary judgment with regard to plaintiff's claim that he qualifies for relief from tax liability under § 530 of the Revenue Act of 1978. More specifically, defendant asserts that plaintiff is not entitled to protection under § 530 because he cannot meet § 530's "consistency requirement." Plaintiff, on the other hand, contends that there are material issues of fact in dispute with regard to this claim that preclude a grant of summary judgment. A. Federal employment taxes and § 530 of the Revenue Act of 1978 Under the Internal Revenue Code, "employers must pay social security and unemployment taxes on behalf of their employees." Hospital Resource Personnel, Inc. v. United States, 68 F.3d 421, 424 (11th Cir.1995).[2] "These taxes are known collectively as `employment taxes.'" Id. "Employers are only required to ... pay these 175 employment taxes, however, in regard to payments to `employees,' not to `independent contractors.'" Id. "In connection with payments to `independent contractors,' employers only have to send annual information returns, on Form 1099 to the worker and on Forms 1096 and 1099 to the IRS, indicating the income paid [to the independent contractor] during the year." Id.; see also Boles Trucking, Inc. v. United States, No. 95-1826, 77 F.3d 236, 238-39 (8th Cir.1996). In light of these tax consequences, their proper characterization of the employment relationship is vital. Under certain circumstances, however, an employer who has mistakenly treated its employees as independent contractors and has thus failed to pay the required employment taxes may be relieved of its tax liability pursuant to § 530 of the Revenue Act of 1978. Congress created the "safe harbor" provisions of § 530 in order to alleviate "what was perceived as overly zealous pursuit	927 f. supp. 171 ( 1996 ) ernest halfhill, d / b / a halfhill trucking, plaintiff, v. united states of america internal revenue service, defendant. civil action vol. 95 - 1. united states district court, w. d. pennsylvania. march 7, 1996. * 172 * 173 stephen i. richman, ceisler, richman & smith, washington, pa, gerald p. duff, james l. hanlon, john g. paleudis, todd m. kildow, hanlon, duff, paleudis & estadt, st. clairsville, oh, for plaintiff. michelle o. gutzmer, united states attorney ' s office, pittsburgh, pa, charles m. flesch, robert s. attardo, united states department of justice, tax division, washington, dc, for united states of america internal revenue service. memorandum opinion bloch, district judge. presently before the court is defendant ' s motion for partial summary judgment. for the reasons set forth in this opinion, the court will grant the defendant ' s motion. i. background regarding circumstances of record are as follows. in 1978, plaintiff purchased a tractor trailer and started a trucking company called halfhill trucking ( ht ), a sole proprietorship. plaintiff ran ht as a leasing venture ; that is, plaintiff leased ht ' s truck to various interstate freight carriers and also provided a truck driver who hauled loads for the carriers. during 1978 and the first half of 1979, plaintiff ' s son, ken halfhill ( halfhill ), was ht ' s sole truck driver. although defendant ' s primary duty was to drive the truck, halfhill also had the authority to negotiate with the carriers regarding future leasing of ht ' s truck. ht, via plaintiff, paid halfhill based on a sum of what the carriers paid to lease the truck. during the 1978 - 1979 period, plaintiff treated halfhill as his employee and issued him federal form w - 2 ' s. plaintiff also paid the required federal employment taxes, including social security and unemployment taxes, on halfhill ' s earnings. in the middle of 1979, however, halfhill left ht and became an employee of sentle trucking ( sentle ). plaintiff thus decided to modify ht ' s contract, leasing ht ' s truck to only one carrier sentle. subsequently, in late 1981, sentle ' s business was deteriorating and sentle ' s exclusive lease with plaintiff expired. plaintiff did not renew this lease ; rather, plaintiff purchased another truck and in 1982 began operating ht in a manner more similar to when plaintiff had started the company. specifically, ht ' s trucks were leased to different carriers and halfhill, who had left sentle, as well as other individuals, drove ht ' s trucks for the carriers. all of the drivers of ht ' s trucks had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on a percentage of what the carriers paid to lease the trucks, as halfhill was paid in the past. from 1982 until mid - 1990, however, plaintiff did not treat the individuals who drove ht ' s trucks as employees. rather, plaintiff considered the drivers, including halfhill, to be independent contractors for federal tax purposes and, therefore, plaintiff did not pay employment taxes on the drivers ' compensation. eventually, in light of tax assessments levied by the internal revenue service, plaintiff paid employment taxes for his drivers for the second half of 1990 in the amount of $ 49. 24. after paying this amount, plaintiff filed an administrative claim seeking a refund of the same. the irs denied the plaintiff ' s administrative claim, and plaintiff instituted the instant action seeking a refund of the employment taxes that he had paid. plaintiff claims that he is entitled to this refund on the ground that ht ' s drivers are independent contractors, not his employees. moreover, plaintiff contends that even if the drivers are his employees, plaintiff is entitled to protection under § 530 of the revenue act of 1978 which exempts certain employers from tax liability when they have in good faith misclassified their employees as independent contractors. defendant contests plaintiff ' s entitlement to a refund, asserting that ht ' s drivers are, in fact, employees of plaintiff and that plaintiff is not entitled to protection under § 530 of the revenue act of 1978. moreover, defendant filed a counterclaim against plaintiff seeking to recover $ 222, 720. 45 of unpaid employment taxes assessed against plaintiff for * 174 the 1988 through 1990 tax years. plaintiff denies liability with regard to the defendant ' s counterclaim for the same reason that he asserts that he is entitled to a refund. at this time, defendant has moved for summary judgment with regard to the single issue of whether plaintiff is entitled to relief under § 530 of the revenue act of 1978. [ 1 ] ii. discussion summary judgment may be granted if " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " fed. r. civ. p. 56 ( c ). " rule 56 ( c ) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party ' s case, and on which that party will bear the burden of proof at trial. " celotex corp. v. catrett, 477 u. s. 317, 322, 106 s. ct. 2548, 2552, 91 l. ed. 2d 265 ( 1986 ). in considering a motion for summary judgment, this court must examine the facts in a light most favorable to the party opposing the motion. big apple bmw, inc. v. bmw of north america, inc., 974 f. 2d 1358, 1363 ( 3d cir. 1992 ), cert. denied, 507 u. s. 912, 113 s. ct. 1262, 122 l. ed. 2d 659 ( 1993 ) ; international raw materials, ltd. v. stauffer chemical co., 898 f. 2d 946, 949 ( 3d cir. 1990 ). thus, where the non - moving party ' s evidence contradicts the movant ' s, the court must accept the non - movant ' s evidence as true. country floors, inc. v. partnership composed of gepner and ford, 930 f. 2d 1056, 1061 ( 3d cir. 1991 ). the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. chipollini v. spencer gifts, inc., 814 f. 2d 893, 896 ( 3d cir. ) ( en banc ), cert. dismissed, 483 u. s. 1052, 108 s. ct. 26, 97 l. ed. 2d 815 ( 1987 ). where the non - moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that " the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non - movant ' s burden of proof at trial. " id. ; celotex, 477 u. s. at 322, 106 s. ct. at 2552. the non - moving party " must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or... vague statements. " quiroga v. hasbro, inc., 934 f. 2d 497, 500 ( 3d cir. ), cert. denied, 502 u. s. 940, 112 s. ct. 376, 116 l. ed. 2d 327 ( 1991 ). if the non - moving party does produce contradictory evidence, however, then the " believability and weight of the evidence remains the province of the factfinder. " big apple, 974 f. 2d at 1363. in this case, defendant asserts that it is entitled to summary judgment with regard to plaintiff ' s claim that he qualifies for relief from tax liability under § 530 of the revenue act of 1978. more specifically, defendant asserts that plaintiff is not entitled to protection under § 530 because he cannot meet § 530 ' s " consistency requirement. " plaintiff, on the other hand, contends that there are material issues of fact in dispute with regard to this claim that preclude a grant of summary judgment. a. federal employment taxes and § 530 of the revenue act of 1978 under the internal revenue code, " employers must pay social security and unemployment taxes on behalf of their employees. " hospital resource personnel, inc. v. united states, 68 f. 3d 421, 424 ( 11th cir. 1995 ). [ 2 ] " these taxes are known collectively as ` employment taxes. ' " id. " employers are only required to... pay these * 175 employment taxes, however, in regard to payments to ` employees, ' not to ` independent contractors. ' " id. " in connection with payments to ` independent contractors, ' employers only have to send annual information returns, on form 1099 to the worker and on forms 1096 and 1099 to the irs, indicating the income paid [ to the independent contractor ] during the year. " id. ; see also boles trucking, inc. v. united states, no. 95 - 1826, 77 f. 3d 236, 238 - 39 ( 8th cir. 1996 ). in light of these tax consequences, their proper characterization of the employment relationship is vital. under certain circumstances, however, an employer who has mistakenly treated its employees as independent contractors and has thus failed to pay the required employment taxes may be relieved of its tax liability pursuant to § 530 of the revenue act of 1978. congress created the " safe harbor " provisions of § 530 in order to alleviate " what was perceived as overly zealous pursuit	927 F. Supp. 171 (1996) Ernest HALFHILL, d / b / a HalfYilo Trucking, Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant. Civil Action No. 95 - 484. United States District Court, W. D. Pennsylvania. March 7, 1996. * 172 * 173 Stephen I. Richman, Ceisler, Richman & Smith, Washington, PA, Gerald P. Duff, Lodge L. Hanlon, John G. Paleudis, Todd M. Kildow, Hanlon, Duff, Paleudis & Estadt, St. Clairsville, OH, for plaintiff. Michelle O. Gutzmer, United States Attorney ' s Office, Pittsburgh, PA, Charles M. Flesch, Robert S. Attardo, United States Department of Justice, Tax Division, Washington, DC, for United States of America Internal Revenue Service. MEMORANDUM OPINION BLOCH, District Judge. Presently before the Court is defendant ' s motion for partial summary judgment. For the reasons set forth in this opinion, the Court will grant the defendant ' s motion. I. Background The facts of record are as follows. In 1978, plaintiff purchased a tractor trailer and started a trucking company called Halfhill Trucking (HT ), a sole proprietorship. Plaintiff operated HT as a leasing venture; that is, plaintiff leased HT ' s truck to various interstate commerce carriers and also provided a truck driver who hauled loads for the carriers. During 1978 and the first half of 1979, plaintiff ' s son, Ken Halfhill (Halfhill ), was HT ' s sole truck driver. Although Halfhill ' s primary duty was to drive the truck, Halfhill also had the authority to negotiate with the carriers regarding future leasing of HT ' s truck. HT, via plaintiff, paid Halfhill based on a percentage of what the carriers pZKd to lease the truck. During the 1978 - 1979 period, plaintiff treated Halfhill as his employee and issued him federal Form W - 2 ' s. Plaintiff also paid the required federal employment taxes, including social security and unemployment taxes, on Halfhill ' s earnings. In the middle of 1979, BowSver, Halfhill left HT and became an employee of Sentle Trucking (Sentle ). Plaintiff thus decided to modify HT ' s business, leasing HT ' s truck to only one carrier Sentle. Subsequently, in late 1981, Sentle ' s business was deteriorating and Sentle ' s exclusive lease with plaintiff expired. Plaintiff did not renew this lease; rather, plaintiff purchased another truck and in 1982 began operating HT in a manner more similar to when plaintiff had started the company. Specifically, HT ' s trucks were leased to different carriers and Halfhill, who had left Sentle, as well as other individuals, drove HT ' s trucks for the carriers. All of the drivers of HT ' s trucks had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on a percentage of what the carriers paid to lease the trucks, as Halfhill was paid in the past. From 1982 until mid - 1990, however, plaintiff did not treat the individuals who drove HT ' s trucks as employees. Rather, plaintiff considered the drivers, including Halfhill, to be independent contractors for federal tax purposes and, therefore, plaintiff did not pay employment taxes on the drivers ' compensation. Eventually, in light of tax assessments levied by the Internal Revenue Service, plaintiff paid employment taxes for his drivers for the second half of 1990 in the amount of $ 49. 24. After paying this amount, plWinfiff filed an administrative claim seeking a refund of the same. The IRS denied the plaintiff ' s administrative claim, and plaintiff instituted the instant action seeking a refund of the employment taxes that he had paid. Plaintiff claims that he is entitled to this refund on the ground that HT ' s drivers are independent contractors, not his employees. Moreover, plaintiff contends that even if the drivers are his employees, plaintiff is entitled to protection under § 530 of the Revenue Act of 1978 which exempts certain employers from tax liability when they have in good faith misclassified their employees as independent contractors. Defendant contests plaintiff ' s entitlement to a refund, asserting that HT ' s drivers are, in fact, employees of plaintiff and that plaintiff is not entitled to protection under § 530 of the Revenue Act of 1978. Moreover, defendant filed a counterclaim against plaintiff seeking to recover $ 222, 720. 45 of unpaid employment taxes assessed against plaintiff for * 174 the 1988 through 1990 tax years. Plaintiff denies liability with regard to the defendant ' s counterclaim for the same reason that he asserts that he is entitled to a refund. At this time, defendant has moved for summary judgment with regard to the single issue of whether plaintiff is entitled to relief under § 530 of the Revenue Act of 1978. [1] II. Discussion Summary judgment may be granted if " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " Fed. R. Civ. P. 56 (c ). " Rule 56 (c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party ' s case, and on which that party will bear the burden of proof at trial. " Celotex Corp. v. Catrett, 477 U. S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986 ). In considering a motion for summary judgment, this C8ur% must examine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, Inc. v. BMW of North America, Inc. , 974 F. 2d 1358, 1363 (3d Cir. 1992 ), cert. denied, 507 U. S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993 ); International Raw Materials, Ltd. v. Stauffer Chemical Co. , 898 F. 2d 946, 949 (3d Cir. 1990 ). Thus, where the non - moving party ' s evidence contradicts the movant ' s, the Court must accept the non - movant ' s evidence as true. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F. 2d 1056, 1061 (3d Cir. 1991 ). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc. , 814 F. 2d 893, 896 (3d Cir.) (en banc ), cert. dismissed, 483 U. S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987 ). Where the non - moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that " the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non - movant ' s burden of proof at trial. " Id. ; Celotex, 477 U. S. at 322, 106 S. Ct. at 2552. The non - moving party " must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or. .. vague statements. " Quiroga v. Hasbro, Inc. , 934 F. 2d 497, 500 (3d Cir. ), cert. denied, 502 U. S. 940, 112 S. Ct. 376, 116 L. Ed. 2d 327 (1991 ). If the non - moving party does produce contradictory evidence, however, then the " believability and weight of the evidence remains the 0Tovince of the factfinder. " Big Apple, 974 F. 2d at 1363. In this case, defendant asserts that it is entitled to summary judgment with regard to plaintiff ' s claim that he qualifies for relief from tax liability under § 530 of the Revenue Act of 1978. More specifically, defendant asserts that plaintiff is not entitled to protection under § 530 because he cannot meet § 530 ' s " consistency requirement. " Plaintiff, on the other hand, contends that there are material issues of fact in dispute with regard to this cKaij that preclude a grant of summary judgment. A. Federal employment taxes and § 530 of the Revenue Act of 1978 Under the Internal Revenue Code, " employers must pay social security and unemployment taxes on behalf of their employees. " Hospital Resource Personnel, Inc. v. United States, 68 F. 3d 421, 424 (11th Cir. 1995 ). [2] " These taxes are known collectively as ` employment taxes. ' " Id. " Employers are only 5eq7ired to. .. pay these * 175 employment taxes, however, in regard to payments to ` employees, ' not to ` independent contractors. ' " Id. " In connection with payments to ` independent contractors, ' employers only have to send annual information returns, on Form 1099 to the worker and on Forms 1096 and 1099 to the IRS, indicating the income paid [to the independent contractor] during the year. " Id. ; see also Boles Trucking, Inc. v. United States, No. 95 - 1826, 77 F. 3d 236, 238 - 39 (8th Cir. 1996 ). In light of these tax consequences, their proper characterization of the employment relwtipnship is vital. Under certain circumstances, however, an emLioyer who has mistakenly treated its employees as independent contractors and has thus failed to pay the required employment taxes may be relieved of its tax liability pursuant to § 530 of the Revenue Act of 1978. Congress created the " safe harbor " provisions of § 530 in order to alleviate " what was perceived as overly zealous pursuit	927 171 (1996) Ernest HALFHILL, d/b/a Halfhill Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant. Civil Action No. 95-484. United States District Court, W.D. Pennsylvania. March 7, 1996. 172 173 Stephen I. Richman, Ceisler, Richman & Smith, Washington, PA, Gerald P. Duff, Lodge L. Hanlon, John G. Paleudis, Todd M. Kildow, Hanlon, Duff, Paleudis Estadt, St. Clairsville, for plaintiff. Michelle O. Gutzmer, United States Office, Pittsburgh, PA, Charles M. Flesch, Robert S. Attardo, United Department of Justice, Tax Division, Washington, DC, States of America Revenue Service. MEMORANDUM OPINION BLOCH, District Presently the Court is defendant's motion for summary judgment. the reasons set forth in this opinion, the Court will grant the defendant's motion. I. Background The of record are as follows. In 1978, plaintiff purchased tractor trailer and started a trucking company Halfhill Trucking (HT), a sole proprietorship. Plaintiff operated HT as a venture; that is, plaintiff leased HT's truck to various interstate commerce and also provided a truck driver who hauled loads for the carriers. During and the half of 1979, Ken Halfhill (Halfhill), was sole truck driver. Although Halfhill's primary duty to drive the truck, Halfhill also had the authority to negotiate with the carriers regarding future of HT's truck. via plaintiff, paid Halfhill based on percentage of the carriers paid lease truck. During the period, plaintiff treated Halfhill as his employee and issued him federal Form W-2's. Plaintiff also required federal employment taxes, including social security and unemployment taxes, Halfhill's earnings. In the middle of 1979, however, Halfhill left HT became an employee of Sentle Trucking (Sentle). Plaintiff thus decided to HT's business, leasing HT's truck to only one carrier Sentle. Subsequently, in late 1981, was and Sentle's exclusive lease with plaintiff expired. Plaintiff not renew this lease; rather, plaintiff purchased another truck and in 1982 began operating HT a manner more similar when plaintiff had started the company. Specifically, HT's trucks were leased to carriers and Halfhill, who had left Sentle, as well as other individuals, drove HT's trucks for the All the drivers of HT's trucks had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on percentage of what the carriers paid lease trucks, as Halfhill was paid in the past. 1982 until mid-1990, however, plaintiff did not treat the individuals drove HT's trucks as employees. Rather, plaintiff considered the drivers, including Halfhill, be independent contractors for federal tax and, plaintiff did not pay employment taxes on the Eventually, in light of tax assessments levied by the Internal Revenue Service, plaintiff paid employment taxes for his drivers the second half of in the amount of $49.24. After paying this amount, plaintiff filed an administrative claim seeking a refund of the same. The IRS denied plaintiff's administrative claim, and plaintiff instituted the instant action seeking a refund of the employment taxes that he had paid. Plaintiff claims that he is entitled to this refund on the ground that HT's drivers are independent contractors, not his employees. Moreover, plaintiff that even if the drivers are his employees, plaintiff is entitled to protection under § 530 of the Revenue of 1978 exempts employers from tax when they have in good faith misclassified their employees as contractors. Defendant contests entitlement to a refund, asserting that HT's drivers are, in fact, of plaintiff and that plaintiff is not to protection under § 530 of the Revenue Act of 1978. Moreover, defendant filed a counterclaim against plaintiff seeking to recover $222,720.45 of unpaid employment taxes assessed against plaintiff 174 the 1988 through 1990 tax years. Plaintiff denies with regard to the defendant's counterclaim for the same reason that he asserts that he is a refund. At this defendant has moved for summary judgment with regard to the single issue of whether plaintiff is to relief under § 530 of the Revenue Act of 1978.[1] II. Discussion Summary may be granted if "the pleadings, depositions, answers to and on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c) mandates the of summary judgment, adequate time for discovery and upon motion, against the party who fails to a showing sufficient to establish the existence of an element essential to that party's case, and on which that will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, this Court must examine facts a light most favorable to party opposing the Big Apple Inc. v. BMW of North America, Inc., 974 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); International Materials, v. Stauffer Chemical Co., F.2d 946, 949 Cir.1990). Thus, where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's evidence as Country Floors, v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991). burden is on the moving party to demonstrate that evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, U.S. 1052, 108 S.Ct. 97 L.Ed.2d 815 (1987). Where the non-moving party bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that "the evidentiary materials of record, if reduced to evidence, would be insufficient to carry the non-movant's burden of proof at trial." Id.; Celotex, 477 U.S. at 106 S.Ct. at 2552. The party "must set forth specific facts showing a genuine issue for trial and may not rest upon allegations, general denials, or vague statements." Quiroga v. Inc., 934 F.2d 497, 500 Cir.), cert. 502 U.S. 112 S.Ct. 376, 116 327 (1991). the non-moving does produce contradictory evidence, however, then the "believability and of the evidence remains the province of the factfinder." Big Apple, 974 F.2d at 1363. In this case, defendant asserts that is entitled to summary judgment with regard to plaintiff's claim that he qualifies for relief from tax under § 530 of Revenue Act of More specifically, defendant asserts that plaintiff is not entitled to protection under § 530 he cannot meet § 530's "consistency requirement." Plaintiff, on the hand, contends that are material issues of fact in dispute with regard to this claim that a grant summary judgment. A. Federal employment taxes and § 530 of Revenue Act of Under the Internal Revenue "employers must pay social security and unemployment taxes on behalf of their Hospital Resource Personnel, Inc. v. United States, 421, 424 (11th Cir.1995).[2] taxes known collectively as `employment taxes.'" Id. "Employers are only required to ... pay these 175 employment taxes, however, in regard to payments to `employees,' not to `independent contractors.'" Id. "In connection with payments to `independent contractors,' employers only have to send annual information returns, Form 1099 the worker and on Forms 1096 and 1099 to the IRS, indicating the income paid [to the independent contractor] the year." Id.; see also Trucking, Inc. United States, 95-1826, 77 F.3d 238-39 (8th Cir.1996). In light of these tax consequences, their proper characterization of the employment relationship is vital. Under certain circumstances, however, an employer who has mistakenly treated employees as independent contractors and has thus failed to pay the required employment taxes may be relieved of its tax liability pursuant to § 530 of the Revenue Act of 1978. Congress created the "safe provisions of 530 in order to "what was perceived as overly zealous pursuit	927 F.SUPp. 171 (1996) eRNEsT HaLfHiLL, d/B/a HALfhiLl TrUckinG, plaIntiff, v. UNiteD States OF aMerIcA INterNal REvENUe sErVIcE, DEfEndaNt. Civil actioN NO. 95-484. UNITED STaTES diSTrIcT CouRT, W.D. pEnNsYlvaNIA. maRCh 7, 1996. 172 173 sTePheN I. richmAN, CEISLER, rIcHman & smitH, WAshiNgToN, pA, GeraLd p. DUFf, LOdGe l. HAnlon, John G. paleudIs, tODd m. KiLDoW, hanLoN, Duff, paLEUDIS & EStADt, St. cLaIRsvILlE, Oh, For pLAinTifF. mICHelle O. guTZmeR, uNITEd STateS ATtoRnEY'S ofFice, PIttSbURGh, PA, charlES m. FlESch, ROBErT S. AttARdo, UnIteD sTatEs departmeNt OF Justice, taX DiVISIoN, WASHINGtON, Dc, for uniTed STAtES OF amerICA inteRNAl reVeNuE seRVice. mEMORAndUM OpiNIoN bLOCh, DiSTriCt JUdge. pReSENTLY Before The coURt IS DEfenDanT's MOTiOn For paRtiaL sUMMarY judgMenT. fOr THE ReasoNS sEt ForTH iN thIS opiNion, tHe COuRT wIll GRAnt tHe dEfENdaNt'S moTiOn. I. bAckGrOuNd thE Facts of recORD ArE aS FoLloWs. In 1978, PLAiNTiff pURCHAsEd a TrAcTor tRaiLEr AND StArTEd a TrUckiNG COmpaNY CAlLEd haLFHilL TruckINg (hT), a sOle pRoPrIETOrshIp. PLaiNTiFf OPeRAtEd hT aS a lEasInG vENTure; tHat iS, pLaINTifF lEaSED Ht's TRuck TO VArioUS InTeRStaTe cOMmeRCe CarrIErs aND alsO PrOvidEd A TRUCk drIveR wHO haULeD LOADS for The CArrIErS. DuRinG 1978 And THe fIrsT HALf OF 1979, plAinTiff's son, KEN HAlfHILL (HALfHILl), wAs HT'S solE tRUcK DrIVer. AlthOUgH hALfhILL's prImaRY DuTY wAS TO dRiVE the tRUCK, hALfHiLl ALso haD THe AUtHORITY To neGotIATE wITH thE caRrIErS REGARDInG FUTUre LEaSInG oF Ht's tRUck. ht, via PlaINTiFF, PaId HaLfhiLl Based ON A PeRCeNTaGe Of WhAT THe CArRiERS pAiD to LEase The TRuCk. DuRInG The 1978-1979 peRiOD, PLaINTiFF TreATED haLFhILl AS his EmPlOyEE aNd isSuED HiM fEDERaL FORM W-2's. plAiNtIfF alsO PAiD THE REqUIReD fedEraL empLOYMEnT tAxES, inCLuDiNg SocIaL SEcuRiTy aNd UNeMplOYMEnT tAXEs, On haLfhiLl'S EarNINgS. iN ThE middle of 1979, HOweVEr, haLFHILL left ht ANd BeCamE aN eMplOYeE oF SenTlE TrUcKing (SENTlE). PLaiNTIFf tHUs DEcIdEd To MOdIfy HT'S businesS, LEasINg hT's Truck TO OnLY One cArrieR sENtlE. subsEquENtLY, In LAtE 1981, sentLe'S BusINESs WaS dEtEriOraTiNG AnD sENtLE'S eXclUSIVe lEaSE WiTH plAinTIfF EXPirED. PLaINTiff DId not RenEw tHis leasE; RaTHeR, PLAinTiFf pURCHasEd anOThEr tRuCk ANd IN 1982 beGaN OpERAtiNG Ht IN A maNNER moRE SImiLAr TO wheN plAInTiFF HaD StArTEd tHe cOMpANY. specIfiCalLY, hT'S TRuCkS WEre leaSeD to DiFfErENt cARRIeRs AND HAlfHilL, whO hAD lEFT seNtLe, as wElL aS oTHeR INDIviDualS, dRoVe HT's truCKs foR ThE cArRiErS. ALl Of tHe dRIveRS Of hT'S TRuCKS haD THe AuThORity tO neGOTIaTE LeASeS With tHe CArRIErS, aNd plAinTiFF PAiD the DriVeRs basED oN a PerCEntAGE OF WHAt thE cArRIERS PAID To LEaSE tHe tRuCKs, AS HalFHILL Was PaId In ThE PaST. FrOm 1982 UNtIl MiD-1990, HoWEVEr, PLaintIff Did NOT TrEat THE indIvIdUaLs wHo DRovE HT's TRUcKS As EmploYeEs. raThER, pLAinTiff COnSidEReD THe DRiVERS, iNcLuDINg HAlFhILl, tO bE iNDEpeNdENt COnTRActoRS fOr fEDERal TaX purpoSeS anD, THErEfoRe, plAIntifF dID nOt PAy eMPloYMeNt TAXES On THe DrIVErs' cOMpensatION. EvEntuaLLY, IN lighT oF taX ASsEsSmENTs leVIEd by The InternaL REVeNuE SeRVICE, plainTIfF PAid eMpLOymEnt TAXeS FoR His DrIVErS fOR tHe SecOND haLF of 1990 in ThE AMoUNt of $49.24. aFTEr paYing tHIs Amount, PlaintiFf fIlEd An adMinIsTRATiVE clAIm sEEKING a REFUNd OF tHE samE. the iRs DENIed The PlAinTIFF's aDMINiSTrative ClAim, AND plaiNTIfF INsTitUTEd the iNSTANT ACtiON sEEkING a reFund OF tHe emPloYmeNt tAxES That He hAd paID. PLAinTiFf CLAiMS thAT HE iS ENtItlEd to thIS rEfuND ON tHe grOunD tHaT Ht's drIverS aRE iNDEpENDent ContRactOrS, not hIS eMpLoYeeS. mOREOveR, pLaINtIfF cOntENDS tHaT eVEN if thE dRiVErs ARE HIs EMPLoYeEs, plainTIfF IS entiTLed TO PRoTeCtiON UNDEr § 530 Of ThE revenuE act Of 1978 WhiCh EXEmPtS CErTAIn EMPLoyErs frOM tax lIABILIty wheN they havE iN GoOD FaITh MISClAssiFieD theIr EmpLOyees aS iNdepeNdeNt coNTrACTORS. dEfENDANT cONTEstS plaintIFf's ENTItlEMenT To A REFuNd, asSERTINg thAt hT'S DrIVErs aRe, In facT, eMPLoyeEs OF PLAINTifF And THAt PLaIntIFf Is Not ENTitled tO pRotecTion uNDeR § 530 Of tHE rEvenuE Act Of 1978. MOreOveR, defenDaNT fiLeD a counteRClaim agAInST PlAinTiff SEeKing to rEcOVeR $222,720.45 oF UnPAid employMEnt TAXES aSSesSeD AgAinSt plAInTiff FoR 174 ThE 1988 THROUGh 1990 taX yeaRS. pLAInTIfF denIes LiaBIlity wiTH RegArd TO tHe dEfENDAnt'S CounTeRClAIm FOR thE sAME rEASOn THaT hE ASSErTS THAt HE Is EntItLeD TO a ReFuNd. AT thIS tIMe, DefenDANT HAs MoVeD fOR suMmArY jUDgmEnt With ReGArD TO The SINglE isSuE Of wheTHEr PlAInTifF IS eNtItled to RelIEf uNDEr § 530 Of the rEvENuE ACt OF 1978.[1] iI. DisCuSsiON SUmmarY JuDGMenT MAy BE GRanteD iF "the PlEadINGS, DEpOSitiOns, AnsWERs TO iNtErROGatoRIES, AnD ADmiSsioNs on FiLe, tOgetHeR WiTh ThE AFFidavITs, IF anY, SHow ThaT there is nO GEnUinE Issue as to aNy MATErIal FAct ANd ThAt The MOvINg PartY Is ENTItlEd tO a JudgMenT as a MattEr OF lAw." fED.R.cIV.p. 56(c). "RuLE 56(c) MandAteS ThE eNTRY oF sUMMARy judGMent, AfTer adequAtE TiMe For DIScovery and Upon mOtioN, aGAinsT thE pARTY Who fAILs tO MAke a sHowing SUffiCiEnt TO eStAbLish thE exisTENce of an elEMENT ESsEntIAl to THAt PARty'S case, aND on WHiCH thAT pARTy wilL BeaR tHE bURdEN of prOof at TRIAl." CeloTEX cOrp. v. cAtRETt, 477 U.s. 317, 322, 106 S.CT. 2548, 2552, 91 l.eD.2D 265 (1986). in COnsIDeRinG A mOTION FOR SummARy jUDgmEnT, thIS CourT mUST EXaMinE THe faCTS iN A light mOST faVORABle TO THE paRty oPPOsiNG thE MotIoN. bIG ApplE Bmw, inC. v. bmW OF nORtH AmerIcA, INC., 974 F.2d 1358, 1363 (3d ciR.1992), cErT. dENIeD, 507 u.S. 912, 113 S.ct. 1262, 122 l.Ed.2D 659 (1993); INTerNaTiONal rAw matErIALs, LTD. V. StaUfFer CHEMiCAL co., 898 F.2d 946, 949 (3d cIR.1990). tHus, WHeRe tHe nOn-moVING PARTY'S EVIDEnce CONTRaDIcts THE mOvanT's, ThE cOuRT Must accEpt thE NON-mOvant's EvIDenCE aS TruE. CouNtRY flOoRS, inc. v. pArtNeRShIP cOmpOSED OF GePNeR AnD FORd, 930 f.2D 1056, 1061 (3D Cir.1991). THE burDEn is On tHe moVInG PaRTy tO DEMONsTRAtE thAt THE eViDenCE CreatES NO GEnUinE iSSUe OF mAtERIAl FaCt. CHipOLLIni v. speNCeR GiFts, iNc., 814 F.2D 893, 896 (3D CIr.) (eN BAnc), cerT. DiSMISSed, 483 U.s. 1052, 108 S.CT. 26, 97 l.eD.2D 815 (1987). WHere THe Non-mOvINg pArTY WilL bEar tHe bURDen of pRoOf aT trial, the PArTY MOVINg fOr sUmmaRy JuDGMeNT MAy mEEt its BurdEN by shOWiNg That "ThE EvIdENTIaRY MaTErialS of RecoRd, If rEduCed tO ADMiSsiBLE EvIDeNCe, WoUld be INSUFFiCIEnt tO cArRy the Non-MOvANT's bUrden OF prOof at trIal." id.; cElOtEX, 477 u.S. aT 322, 106 S.Ct. At 2552. tHE nOn-MOviNg PARtY "mUsT SeT foRTh specifiC fACTS sHowinG A genuINE iSsUe For triAL AND mAY Not resT upon Mere allegAtiONs, GEneRal dENIaLS, oR ... vAGuE sTATEMeNts." QuiROGa V. HASbrO, INC., 934 F.2d 497, 500 (3D cir.), cERt. deNIeD, 502 U.s. 940, 112 s.ct. 376, 116 l.eD.2d 327 (1991). iF tHe nOn-mOVIng PArTy doES PRODuCE ConTradICtoRy eVIdenCE, hOwEVER, tHeN The "beliEVabiLitY anD WeIGht OF THe EViDENCe remAinS the pROViNCE Of tHE FACTfIndEr." bIG apPLe, 974 F.2d AT 1363. In THIs CASe, defenDAnT AsSeRtS THat IT iS ENTItled to SUmmArY judgMeNt wIth REGaRd To PLaINtIff'S clAIm THAt He QuaLIFiEs FOR relieF fROM TAX lIABilitY under § 530 Of THe REVenUE AcT of 1978. More specIficALly, dEfeNdant AssErts tHAT plAinTIFF iS NOt ENtiTLeD to pRoTecTion uNdER § 530 bECaUSE he CaNNOT mEET § 530'S "COnsisTenCY REQuiREMent." pLAinTifF, On the otHEr Hand, ConteNDS THat tHeRE aRe mATERIAL ISSUES Of FAcT IN dispuTe WITH regaRd TO This CLAIm thAT prEcluDE A grANt of SumMaRy JUdGMenT. a. FEDeRAl EmPloYmENT taxES AND § 530 OF ThE REVeNuE acT oF 1978 Under The IntErnAl revEnuE coDE, "EMpLOYERS MusT PAY sOcIaL SEcuriTy AnD UnEmPlOYmeNT TAXeS oN bEhAlf Of THEIR eMployeEs." hOsPItAl ResourCE pErSoNnel, Inc. v. UnITeD StAteS, 68 f.3D 421, 424 (11th Cir.1995).[2] "tHeSE TaXES Are kNOwn collectiVely as `EmPLoymENT Taxes.'" iD. "EmpLOyers ARe ONLY ReQuiRed TO ... PAY ThesE 175 emploYMENt taXes, HowevEr, IN REGarD TO paYmEnts to `EmPLOYEEs,' nOT To `iNDepeNdent contRActOrS.'" iD. "In cONneCtIOn WiTh paymeNTS to `INdePeNdEnt cONtraCTORs,' eMPlOYERS oNLY hAvE To SENd annuAl inFOrMATIOn REturnS, on FoRm 1099 To the woRKeR aND On FOrMS 1096 aNd 1099 To ThE irS, InDIcATInG THE iNCoMe PAID [to tHe InDEpeNDENT coNTractor] DURIng ThE yEaR." ID.; See aLso bOles TruCkING, inc. V. UniTED sTates, no. 95-1826, 77 f.3d 236, 238-39 (8Th CiR.1996). In LIGhT oF TheSE tAx cOnSeQuEncES, tHeIR pRoPER chARACTerIZaTION OF THe EMPlOymEnT RELAtioNsHip Is ViTAL. unDER CERtAIn cIrcuMSTaNCEs, hoWEveR, An emPloYEr WHO HAS MIsTAKEnlY TrEaTEd iTS EMpLoyeEs As InDEPEndENT contRaCTOrs And hAs ThUs FaiLED tO PAy tHe rEquiREd EmpLOyMENT TaxeS MAy Be ReliEVED of Its TAX liabilIty puRsuANt To § 530 Of tHe REveNue aCt Of 1978. ConGRESs CReaTeD thE "SAfE HArBOR" ProVisIonS Of § 530 In OrdER TO ALlevIAte "WhAT WaS PeRcEIVeD as OVErLY zeAlOus PuRsuiT	927 F.Supp. 171 (1996) Ernest HALFHILL, d/b/a HalfhillTrucking,Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant. Civil ActionNo. 95-484. United States District Court, W.D. Pennsylvania. March7, 1996. 172 173 Stephen I. Richman, Ceisler, Richman & Smith, Washington,PA, Gerald P. Duff, Lodge L. Hanlon, John G. Paleudis, Todd M. Kildow, Hanlon,Duff, Paleudis &Estadt, St. Clairsville, OH, for plaintiff. Michelle O. Gutzmer, United States Attorney's Office, Pittsburgh, PA, Charles M. Flesch,Robert S. Attardo, United StatesDepartment of Justice,Tax Division, Washington, DC, for United States of America InternalRevenue Service. MEMORANDUMOPINION BLOCH,District Judge. Presently before the Court is defendant's motion for partialsummary judgment. For the reasons set forth in this opinion,the Courtwill grant the defendant's motion. I. Background The facts ofrecord are as follows. In 1978, plaintiff purchased a tractor trailer and started a trucking companycalled Halfhill Trucking(HT), a sole proprietorship. Plaintiffoperated HT as a leasing venture; that is, plaintiff leased HT's truck to various interstate commerce carriers and also provided a truck driver who hauled loads for the carriers. During 1978 and the first half of 1979, plaintiff'sson,KenHalfhill (Halfhill), was HT's sole truckdriver. AlthoughHalfhill's primary duty was to drive the truck, Halfhill also hadthe authority to negotiate with thecarriersregarding future leasing of HT's truck. HT,via plaintiff, paid Halfhill based on a percentage of what the carriers paidto lease the truck. During the 1978-1979 period, plaintiff treated Halfhill as his employee and issued him federal Form W-2's.Plaintiff alsopaid the required federal employment taxes, including social security and unemploymenttaxes, on Halfhill's earnings. In the middle of1979, however,HalfhillleftHT and became anemployee of SentleTrucking (Sentle). Plaintiff thus decidedto modify HT's business, leasing HT'struck to only one carrier Sentle. Subsequently, in late1981, Sentle's business was deteriorating and Sentle's exclusive leasewith plaintiff expired. Plaintiff did not renew this lease; rather, plaintiff purchased another truck and in 1982 began operating HT in a manner more similar to when plaintiff had started the company. Specifically, HT's trucks were leased todifferent carriers and Halfhill, who had left Sentle, as wellas other individuals, drove HT's trucksfor the carriers. Allof thedrivers of HT's truckshad theauthorityto negotiateleases with thecarriers, andplaintiff paid the drivers based on a percentage of what the carriers paid to lease the trucks,as Halfhill was paidin the past. From 1982 until mid-1990, however, plaintiff did not treat the individuals who drove HT'strucks as employees. Rather, plaintiff consideredthe drivers, including Halfhill, to be independent contractors for federal tax purposes and, therefore, plaintiffdid not pay employment taxes on the drivers' compensation. Eventually, in light oftax assessments levied by the Internal Revenue Service, plaintiff paid employmenttaxes for his driversforthesecond half of 1990 in the amount of $49.24. After paying this amount, plaintiff filed an administrative claim seeking a refund of thesame.The IRS deniedtheplaintiff's administrative claim, and plaintiff institutedtheinstant action seeking arefund of the employmenttaxesthathe had paid. Plaintiff claims that heis entitledto this refund onthe ground that HT's driversareindependent contractors, not his employees. Moreover, plaintiff contends that even if the drivers are his employees, plaintiffisentitled to protection under § 530 oftheRevenue Act of 1978 which exempts certain employers from taxliability whenthey have in good faith misclassified their employees as independent contractors. Defendantcontests plaintiff's entitlement to a refund, asserting that HT's drivers are, infact, employees of plaintiff andthat plaintiff is not entitled to protectionunder § 530 of the Revenue Act of 1978. Moreover, defendant fileda counterclaim againstplaintiffseeking to recover $222,720.45 of unpaid employment taxesassessed against plaintiff for174 the 1988 through1990 tax years.Plaintiff denies liability withregard tothe defendant's counterclaim for the samereason that he asserts that he is entitled to a refund. Atthis time, defendant has movedfor summary judgment with regard to the single issue of whether plaintiff is entitled to relief under § 530 of the Revenue Actof1978.[1] II. Discussion Summary judgment may be granted if "thepleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact andthatthe moving party is entitled to a judgment as a matterof law." Fed.R.Civ.P. 56(c). "Rule 56(c) mandatesthe entryof summary judgment, afteradequatetime for discovery andupon motion, against the party who fails to make a showing sufficient to establishthe existence of an element essential to that party's case, and on which that partywill bear the burdenof proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986). In considering a motion for summaryjudgment, this Court mustexamine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, Inc.v. BMW of NorthAmerica, Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied,507U.S. 912, 113 S.Ct. 1262, 122L.Ed.2d 659(1993); International Raw Materials, Ltd. v.Stauffer Chemical Co., 898 F.2d 946, 949(3d Cir.1990). Thus, where the non-moving party's evidence contradicts the movant's, the Court must acceptthe non-movant's evidence as true. Country Floors,Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052,108S.Ct. 26, 97 L.Ed.2d 815 (1987). Where thenon-moving partywill bear the burden of proof at trial, the party moving for summary judgment maymeet its burden byshowing that "the evidentiary materials of record, if reduced to admissible evidence, would be insufficient tocarry the non-movant's burden of proof at trial."Id.; Celotex, 477 U.S. at322, 106 S.Ct. at 2552. The non-moving party "must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or ... vague statements." Quiroga v. Hasbro,Inc.,934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d327 (1991). If the non-moving party does produce contradictory evidence, however, then the "believability and weight of the evidence remains the province of the factfinder." Big Apple, 974 F.2d at1363. In thiscase, defendant asserts that it is entitled to summary judgment with regardto plaintiff's claim that he qualifies for relieffrom tax liability under § 530 of the RevenueAct of 1978. More specifically, defendant asserts thatplaintiff is not entitled to protection under § 530 because he cannot meet §530's "consistency requirement." Plaintiff, on the other hand, contends that there are material issues offact in dispute with regard to this claim that preclude a grant of summary judgment. A. Federal employment taxes and§ 530 of theRevenue Act of 1978 Under the Internal Revenue Code, "employers mustpaysocial security and unemployment taxes on behalf of their employees."Hospital Resource Personnel, Inc. v. United States, 68 F.3d 421, 424 (11th Cir.1995).[2] "These taxes are known collectively as`employment taxes.'" Id. "Employers are only required to ... pay these 175 employment taxes, however,in regard to payments to `employees,' not to `independent contractors.'" Id. "In connection with payments to `independent contractors,' employers only haveto send annual information returns, on Form 1099 tothe worker and on Forms 1096 and 1099 tothe IRS, indicating the income paid[to the independent contractor] during the year." Id.; seealso Boles Trucking, Inc. v. United States, No. 95-1826, 77 F.3d 236, 238-39 (8th Cir.1996). In light of these tax consequences, their proper characterization of the employmentrelationship isvital. Under certain circumstances, however, an employer who has mistakenlytreated its employees asindependent contractors and has thus failedto pay the required employmenttaxes may be relieved of its tax liabilitypursuant to§ 530 of the Revenue Act of 1978. Congress created the "safe harbor" provisions of§ 530 in order to alleviate "what was perceived as overly zealous pursuit	927 _F.Supp._ 171 (1996) _Ernest_ HALFHILL, d/b/a Halfhill Trucking, Plaintiff, _v._ UNITED STATES _of_ America INTERNAL REVENUE SERVICE, Defendant. Civil Action No. 95-484. United _States_ District Court, W.D. _Pennsylvania._ March 7, 1996. 172 173 _Stephen_ I. Richman, _Ceisler,_ Richman & Smith, _Washington,_ PA, Gerald P. Duff, _Lodge_ L. _Hanlon,_ John _G._ Paleudis, _Todd_ M. _Kildow,_ Hanlon, _Duff,_ _Paleudis_ _&_ _Estadt,_ St. Clairsville, OH, for plaintiff. _Michelle_ O. Gutzmer, United _States_ Attorney's Office, _Pittsburgh,_ PA, _Charles_ M. Flesch, Robert S. Attardo, United States Department of _Justice,_ Tax Division, Washington, DC, for United States of America _Internal_ Revenue Service. MEMORANDUM OPINION BLOCH, District _Judge._ _Presently_ before _the_ _Court_ is defendant's motion for partial summary judgment. _For_ the reasons set forth _in_ _this_ opinion, the Court will grant the defendant's motion. I. _Background_ The _facts_ of record _are_ as follows. _In_ _1978,_ plaintiff purchased _a_ tractor _trailer_ and started a trucking _company_ _called_ Halfhill Trucking (HT), _a_ sole proprietorship. Plaintiff operated HT as a _leasing_ venture; that _is,_ plaintiff leased HT's truck to various _interstate_ commerce carriers and also provided a truck driver _who_ hauled loads for _the_ _carriers._ During 1978 and the _first_ _half_ _of_ 1979, plaintiff's son, Ken Halfhill _(Halfhill),_ was HT's sole truck _driver._ Although Halfhill's _primary_ duty was to drive the _truck,_ Halfhill also had _the_ authority to negotiate with the carriers regarding _future_ _leasing_ of HT's truck. HT, via plaintiff, paid Halfhill based on _a_ percentage of what the _carriers_ _paid_ to lease the truck. During _the_ 1978-1979 _period,_ plaintiff treated Halfhill as _his_ employee and issued him federal _Form_ _W-2's._ Plaintiff also _paid_ the required federal employment _taxes,_ including social security and unemployment taxes, on Halfhill's _earnings._ In the middle of 1979, however, _Halfhill_ left _HT_ and became an employee of Sentle Trucking (Sentle). Plaintiff thus decided _to_ modify HT's business, leasing HT's truck to only one carrier __ Sentle. Subsequently, _in_ late 1981, Sentle's business _was_ deteriorating and Sentle's _exclusive_ lease with plaintiff expired. _Plaintiff_ did not renew _this_ _lease;_ rather, _plaintiff_ purchased _another_ truck and _in_ 1982 began _operating_ HT in _a_ manner _more_ similar to when _plaintiff_ had started the _company._ Specifically, _HT's_ trucks were _leased_ to different carriers and Halfhill, who had left Sentle, as well as other _individuals,_ drove HT's _trucks_ for the _carriers._ All of the _drivers_ of _HT's_ _trucks_ had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on a percentage of what the carriers paid _to_ lease the trucks, as Halfhill was paid in the _past._ From 1982 _until_ _mid-1990,_ however, _plaintiff_ did not treat the _individuals_ who _drove_ HT's trucks as employees. Rather, plaintiff _considered_ _the_ drivers, including Halfhill, to _be_ independent contractors for federal _tax_ purposes and, therefore, plaintiff did not pay employment taxes on the drivers' compensation. Eventually, in _light_ _of_ _tax_ _assessments_ _levied_ by the Internal Revenue Service, plaintiff paid employment taxes for his drivers for the _second_ half of 1990 in the _amount_ of $49.24. After paying this amount, plaintiff filed an _administrative_ claim seeking a refund of the same. _The_ IRS denied the plaintiff's administrative claim, and plaintiff instituted the _instant_ action _seeking_ a refund of the employment taxes that he had paid. Plaintiff claims _that_ he is entitled to this _refund_ on the ground that HT's drivers are independent contractors, not his employees. Moreover, plaintiff contends that even if the drivers _are_ his employees, _plaintiff_ is entitled to _protection_ _under_ § 530 _of_ the Revenue _Act_ _of_ 1978 which exempts certain employers from tax liability when they have in _good_ faith misclassified their _employees_ as independent contractors. Defendant _contests_ _plaintiff's_ entitlement to a refund, asserting that HT's drivers are, in fact, employees of plaintiff and that _plaintiff_ is not _entitled_ to _protection_ under _§_ _530_ _of_ the Revenue Act of 1978. Moreover, defendant _filed_ _a_ counterclaim against _plaintiff_ seeking to recover _$222,720.45_ of unpaid employment _taxes_ _assessed_ against plaintiff _for_ 174 _the_ 1988 through 1990 tax years. Plaintiff _denies_ liability _with_ regard _to_ the defendant's counterclaim for the _same_ reason that he _asserts_ _that_ he is entitled _to_ a refund. At this time, defendant has _moved_ for summary _judgment_ with regard _to_ the single issue of whether plaintiff is entitled to relief _under_ _§_ 530 of the _Revenue_ _Act_ of 1978.[1] II. Discussion Summary judgment may be granted if "the _pleadings,_ depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that _there_ is no genuine issue as _to_ any material _fact_ and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c) _mandates_ the entry of summary judgment, after adequate time _for_ discovery and _upon_ _motion,_ against _the_ party who fails _to_ _make_ _a_ showing _sufficient_ to establish the existence of _an_ element essential _to_ that party's case, and _on_ _which_ that party _will_ bear _the_ burden of proof at trial." Celotex _Corp._ v. Catrett, 477 _U.S._ 317, 322, 106 S.Ct. 2548, 2552, _91_ L.Ed.2d _265_ _(1986)._ _In_ considering a motion for _summary_ _judgment,_ this Court must examine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, _Inc._ v. _BMW_ of North America, _Inc.,_ _974_ F.2d 1358, 1363 (3d _Cir.1992),_ _cert._ denied, 507 U.S. 912, 113 _S.Ct._ 1262, _122_ L.Ed.2d 659 (1993); _International_ Raw Materials, Ltd. v. Stauffer Chemical Co., 898 _F.2d_ 946, _949_ (3d Cir.1990). Thus, _where_ the non-moving party's evidence _contradicts_ the movant's, the _Court_ must accept the _non-movant's_ evidence _as_ true. Country _Floors,_ Inc. _v._ _Partnership_ Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991). _The_ burden is on the moving party to demonstrate that _the_ evidence creates no genuine _issue_ of material fact. Chipollini _v._ Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. _dismissed,_ 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d _815_ _(1987)._ Where _the_ non-moving party will bear the _burden_ of _proof_ at trial, the party moving for summary judgment may _meet_ its _burden_ by showing that "the evidentiary _materials_ of record, _if_ reduced to admissible evidence, would be insufficient to carry the non-movant's burden of _proof_ at trial." Id.; Celotex, 477 U.S. _at_ 322, 106 _S.Ct._ at 2552. The non-moving party "must set forth _specific_ facts _showing_ a genuine _issue_ for trial and _may_ not rest upon mere _allegations,_ general denials, or ... _vague_ statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 _(3d_ Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). _If_ the non-moving party does produce contradictory _evidence,_ however, then _the_ "believability and weight _of_ the evidence remains the province _of_ the factfinder." Big Apple, 974 F.2d at 1363. In _this_ case, _defendant_ _asserts_ that it _is_ _entitled_ to summary _judgment_ _with_ regard to plaintiff's claim that he qualifies for relief _from_ tax liability under § 530 of the Revenue Act of 1978. _More_ specifically, _defendant_ _asserts_ that plaintiff is not entitled _to_ protection under § 530 because _he_ cannot meet § 530's "consistency _requirement."_ Plaintiff, on _the_ _other_ hand, _contends_ that there are material issues of _fact_ in dispute with regard _to_ this claim that _preclude_ a grant of summary judgment. A. Federal _employment_ taxes and § _530_ of _the_ _Revenue_ Act of 1978 Under the Internal Revenue Code, _"employers_ must pay _social_ _security_ and unemployment taxes on behalf of their _employees."_ Hospital _Resource_ _Personnel,_ _Inc._ v. United States, 68 F.3d 421, 424 (11th Cir.1995).[2] "These taxes _are_ known collectively as `employment taxes.'" Id. "Employers are _only_ required to ... pay _these_ 175 employment taxes, however, _in_ regard to payments to `employees,' not _to_ `independent _contractors.'"_ Id. "In connection with payments to `independent contractors,' employers only have to send annual information returns, on Form 1099 to the _worker_ _and_ on Forms _1096_ and _1099_ to the IRS, indicating the income paid [to the independent contractor] _during_ the year." Id.; see _also_ Boles Trucking, _Inc._ _v._ United States, No. 95-1826, 77 F.3d 236, 238-39 _(8th_ Cir.1996). In _light_ of these tax consequences, their proper characterization _of_ _the_ employment relationship is vital. Under certain _circumstances,_ however, an employer who _has_ mistakenly treated its employees as _independent_ contractors and _has_ thus failed to pay the _required_ employment taxes may be relieved of its tax liability pursuant _to_ _§_ 530 of the Revenue _Act_ of 1978. Congress created the _"safe_ harbor" provisions of § 530 in _order_ to alleviate "what was perceived _as_ overly zealous _pursuit_
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 18 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 02-1522 v. (D. Colorado) SERGIO ORTEGA-GUZMAN, (D.C. No. 02-CR-134-N) Defendant-Appellant. ORDER AND JUDGMENT * Before EBEL, HENRY, and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Sergio Ortega-Guzman pleaded guilty to unlawfully reentering the United States after deportation for an aggravated felony in violation of 8 U.S.C. §§ * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1326(a) and (b)(2). He appeals the district court's denial of his motion to dismiss the indictment and raises an issue regarding his sentence. Counsel appointed to represent defendant on appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm the district court’s denial of Mr. Ortega-Guzman’s motion to dismiss the indictment and we affirm the conviction. I. BACKGROUND Mr. Ortega-Guzman, a Mexican citizen, was deported by the United States in August 2001. He had previously been convicted of an aggravated felony in Colorado state court. He subsequently returned to the United States without lawful permission, and, in March of 2002, he was arrested in Weld County, Colorado, where state authorities charged him with driving without a license and without valid insurance. Convicted of both charges, he spent ten days in jail, after which the Immigration and Naturalization Service took him into custody. The federal government indicted him for violating 8 U.S.C. § 1326(a) and (b)(2), charging that he illegally re-entered the United States after deportation and that he did so after being convicted of an aggravated felony. Mr. Ortega-Guzman moved to dismiss the indictment before trial, claiming that his original deportation proceeding was tainted by a due process violation. The district court denied the motion. -2- After the district court rejected this motion to dismiss the indictment, Mr. Ortega-Guzman pleaded guilty to the charged offense. His “Rule 11 Plea Statement,” which the parties submitted in lieu of a formal plea agreement, was unconditional, that is, it preserved no issues for appeal. The district court accepted Mr. Ortega-Guzman’s guilty plea, finding that it met all the requirements set forth in Fed. R. Crim. P. 11. After the district court rejected Mr. Ortega-Guzman’s motion for a downward departure, Mr. Ortega-Guzman was sentenced to 57 months’ imprisonment. II. DISCUSSION Mr. Ortega-Guzman has asked his counsel to appeal the district court’s denial of his motion to dismiss the indictment and to challenge the denial of the motion for downward departure. Anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, he should so advise the court and request permission to withdraw. Counsel must in addition submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. See Anders, 386 U.S. at 744. -3- Mr. Ortega-Guzman Defendant was notified of his right to file a pro se brief, and he has chosen not to do so. Accordingly, we turn to an examination of the proceedings below to determine if the appeal is wholly frivolous. In his Anders brief, counsel first dismisses the possibility that the district court erred in denying the motion to dismiss the indictment. As noted above, however, Mr. Ortega-Guzman’s plea agreement preserved no issues for appeal. See United States v. Ryan, 894 F.2d 355, 360-61 (10th Cir. 1990) (Rule 11 requires a defendant to reserve the specific issue to be appealed). In the absence of a conditional plea, a defendant who pleads guilty admits to all of the factual allegations contained in the indictment and the legal consequences of those acts. See United States v. Broce, 488 U.S. 563, 569-70 (1989); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.”). Mr. Ortega-Guzman does not challenge the “voluntary and intelligent character” of his guilty plea. See id., 411 U.S. at 267. Consequently, Mr. Ortega-Guzman has no basis for collaterally attacking his deportation proceeding. -4- Next, Mr. Ortega-Guzman challenges the district court’s failure to grant him a downward departure. In so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. Because the court acknowledged its authority to grant such a departure, we have no jurisdiction to review its decision refusing to exercise that authority. See United States v. Castillo, 140 F.3d 874, 889 (10th Cir. 1998). We have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant's sentence. We find nothing in the record to indicate that the sentence imposed was in violation of the law or the result of a misapplication of the sentencing guidelines. Accordingly, we are without jurisdiction to consider such a challenge. See United States v. Sanchez, 146 F.3d 796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a). III. CONCLUSION Accordingly, we AFFIRM the judgment of the district court denying Mr. Ortega-Guzman’s motion to dismiss the indictment, we AFFIRM the conviction, and we GRANT counsel’s motion to withdraw. Entered for the Court, Robert H. Henry Circuit Judge -5-	f i p e d united states court jurisdiction appeals tenth circuit united states court of appeals jul 18 2003 tenth circuit patrick fisher clerk united states of america, plaintiff - appellee, no. 02 - 1522 v. ( d. colorado ) sergio ortega - guzman, ( d. c. no. 02 - cr - 134 - n ) defendant - appellant. order and judgment * before ebel, henry, and hartz, circuit judges. after examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the validity of this appeal. see fed. r. app. p. 34 ( c ) ( 2 ) ( c ) ; 10th cir. r. 34. 1 ( g ). the case is therefore ordered submitted without oral argument. sergio ortega - guzman pleaded guilty to unlawfully reentering the united states by deportation for his aggravated felony in violation of 8 u. s. c. § § * this order and judgment is not binding precedent, relying under the doctrines of law of the case, res judicata, and collateral estoppel. the court generally disfavors the citation of orders and judgments ; nevertheless, an order and judgment may be cited under the terms and conditions of 10th cir. r. 36. 3. 1326 ( a ) and ( b ) ( 2 ). he appeals the district court ' s denial of his motion to dismiss the indictment and raises an issue regarding his sentence. counsel appointed to represent defendant on appeal filed a brief pursuant to arroyo v. california, 386 u. s. 738 ( 1967 ). we affirm the district court ’ s denial of mr. ortega - guzman ’ s motion to dismiss the indictment and we affirm the conviction. i. background mr. ortega - guzman, a mexican citizen, was deported by the united states in august 2001. he had previously been guilty of an aggravated felony in colorado state court. he subsequently returned to the united states without lawful permission, and, in march of 2002, he was arrested in weld county, colorado, where state authorities charged him with driving without a license and without valid insurance. convicted of both charges, he spent ten days in jail, after which the immigration and naturalization service took him into custody. the federal government indicted him for violating 8 u. s. c. § 1326 ( a ) and ( b ) ( k ), charging that he illegally re - entered the united states after deportation and that he did so after being convicted of an aggravated felony. mr. ortega - guzman moved to dismiss the indictment before trial, claiming that his original deportation proceeding was tainted by a due process violation. the district court denied the motion. - 2 - after the district court rejected this motion to dismiss the indictment, mr. ortega - guzman pleaded guilty to the charged offense. his “ rule 11 plea statement, ” which the parties submitted in lieu of a formal plea agreement, was unconditional, that is, it preserved no issues for appeal. the district court accepted mr. ortega - guzman ’ s guilty plea, finding that it met all the requirements set forth in fed. r. crim. p. 11. after the district court rejected mr. ortega - guzman ’ s motion for a downward departure, mr. ortega - guzman was sentenced to 57 months ’ imprisonment. ii. discussion mr. ortega - guzman has asked his counsel to appeal the district court ’ s denial of his motion to dismiss the indictment and to challenge the denial of the motion for downward departure. anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, he should so advise the court and request permission to withdraw. counsel must in addition submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. the client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. if it so finds, it may grant counsel ’ s request to withdraw and dismiss the appeal. see anders, 386 u. s. at 744. - 3 - mr. ortega - guzman defendant was notified of his right to file a pro se brief, and he has chosen not to do so. accordingly, we turn to an examination of the proceedings below to determine if the appeal is wholly frivolous. in his anders brief, counsel first dismisses the possibility that the district court erred in denying the motion to dismiss the indictment. as noted above, however, mr. ortega - guzman ’ s plea agreement preserved no issues for appeal. see united states v. ryan, 894 f. 2d 355, 360 - 61 ( 10th cir. 1990 ) ( rule 11 requires a defendant to reserve the specific issue to be appealed ). in the absence of a conditional plea, a defendant who pleads guilty admits to all of the factual allegations contained in the indictment and the legal consequences of those acts. see united states v. broce, 488 u. s. 563, 569 - 70 ( 1989 ) ; see also tollett v. henderson, 411 u. s. 258, 267 ( 1973 ) ( “ when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. he may only attack the voluntary and intelligent character of the guilty plea. ” ). mr. ortega - guzman does not challenge the “ voluntary and intelligent character ” of his guilty plea. see id., 411 u. s. at 267. consequently, mr. ortega - guzman has no basis for collaterally attacking his deportation proceeding. - 4 - next, mr. ortega - guzman challenges the district court ’ s failure to grant him a downward departure. in so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. because the court acknowledged its authority to grant such a departure, we have no jurisdiction to review its decision refusing to exercise that authority. see united states v. castillo, 140 f. 3d 874, 889 ( 10th cir. 1998 ). we have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant ' s sentence. we find nothing in the record to indicate that the sentence imposed was in violation of the law or the result of a misapplication of the sentencing guidelines. accordingly, we are without jurisdiction to consider such a challenge. see united states v. sanchez, 146 f. 3d 796, 796 - 97 ( 10th cir. 1998 ) ; 18 u. s. c. § 3742 ( a ). iii. conclusion accordingly, we affirm the judgment of the district court denying mr. ortega - guzman ’ s motion to dismiss the indictment, we affirm the conviction, and we grant counsel ’ s motion to withdraw. entered for the court, robert h. henry circuit judge - 5 -	F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 18 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 02 - 1522 v. (D. Colorado) SERGIO ORTEGA - GUZMAN, (D. C. No. 02 - CR - 134 - N) Defendant - Appellant. ORDER AND JUDGMENT * Before EBEL, HENRY, and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34 (a) (2) (c ); 10th Cir. R. 34. 1 (G ). The case is th#rebore ordered submitted without oral argument. Sergio Ortega - Guzman pleaded guilty to unlawfully reentering the United States after deportation for an aggravated felony in violation of 8 U. S. C. § § * This order and judgment is not binding pfecedegt, except uHxer the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36. 3. 1326 (a) and (b) (2 ). He appeals the district court ' s denial of his motion to dismiss the indictment and raises an issue regarding his sentence. Counsel appointed to represent defendant on appeal filed a brief pursuant to Anders v. California, 386 U. S. 738 (1967 ). We affirm the district court ’ s denial of Mr. Ortega - Guzman ’ s motion to dismiss the indictment and we affirm the conviction. I. BACKGROUND Mr. Ortega - Guzman, a Mexican citizen, was deported by the United States in August 2001. He had previously been convicted of an aggravated felony in Colorado state court. He subsequently returned to the United States without lawful permission, and, in March of 2002, he was arrested in Weld County, Colorado, where state authorities charged him with driving without a license and without valid insurance. Convicted of both charges, he spent ten days in jail, after which the Immigration and Naturalization Service took him into custody. The federal government ondict4d him for violating 8 U. S. C. § 1326 (a) and (b) (2 ), charging that he illegally re - entered the United States after deportation and that he did so after being convicted of an aggravated felony. Mr. Ortega - Guzman moved to dismiss the indictment before trial, claiming that his original deportation proceeding was tainted by a due process violation. The district court denied the motion. - 2 - After the district court rejected this motion to dismiss the indictment, Mr. Ortega - Guzman pleaded guilty to the charged offense. His “ Rule 11 Plea Statement, ” which the parties submitted in lieu of a fPrhal plea agreement, was unconditional, that is, it preserved no issues for appeal. The district court accepted Mr. Ortega - Guzman ’ s guilty plea, finding that it met all the requirements set forth in Fed. R. Crim. P. 11. After the district court rejected Mr. Ortega - Guzman ’ s motion for a downward departure, Mr. Ortega - Guzman was sentenced to 57 months ’ imprisonment. II. DISCUSSION Mr. Ortega - Guzman has asked his counsel to appeal the district court ’ s denial of his motion to dismiss the indiStKent and to challenge the denial of the motion for downward departure. Anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, he should so advise the court and request permission to withdraw. Counsel must in addition submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings and decides whether the ap(ezl is in fact frivolous. If it so finds, it may grant counsel ’ s request to withdraw and dismiss the appeal. See Anders, 386 U. S. at 744. - 3 - Mr. Ortega - Guzman Defendant was notified of his right to file a pro se brief, and he has chosen not to do so. Accordingly, we turn to an examination of the proceedings below to determine if the appeal is wholly frivolous. In his Anders brief, counsel first dismisses the possibility that the district court erred in Fenging the motion to dismiss the indictment. As noted above, however, Mr. Ortega - Guzman ’ s plea agreement preserved no issues for appeal. See United States v. Ryan, 894 F. 2d 355, 360 - 61 (10th Cir. 1990) (Rule 11 requires a defendant to reserve the specific issue to be appealed ). In the absence of a conditional plea, a defendant who pleads guilty admits to all of the factual allegations contained in the indictment and the legal consequences of those acts. See United States v. Broce, 488 U. S. 563, 569 - 70 (1989 ); see also Tollett v. Henderson, 411 U. S. 258, 267 (1973) (“ When a criminal defendant has solemnly admitted in open Dpurt that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. ” ). Mr. Ortega - Guzman does not challenge the “ voluntary and intelligent character ” of his guilty plea. See id. , 411 U. S. at 267. Consequently, Mr. Ortega - Guzman has no basis for collaterally attacking his deportation proceeding. - 4 - Next, Mr. Ortega - Guzman challenges the district court ’ s failure to grant him a downward departure. In so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. Because the court acknowledged its authority to grant such a departure, we have no jurisdiction to review its decision refusing to exercise that authority. See United States v. Castillo, 140 F. 3d 874, 889 (10th Cir. 1998 ). We have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant ' s sentence. We find nothing in the record to indicate that the sentence imposed was in violation of the law or the result of a misapplication of the sentencing guidelines. Accordingly, we are without jurisdiction to consider such a challenge. See United States v. Sanchez, 146 F. 3d 796, 796 - 97 (10th Cir. 1998 ); 18 U. S. C. § $I42 (a ). III. CONCLUSION Accordingly, we AFFIRM the judgment of the district court denying Mr. Ortega - Guzman ’ s motion to dismiss the indictment, we AFFIRM the conviction, and we GRANT counsel ’ s motion to withdraw. Entered for the Court, Robert H. Henry Circuit Judge - 5 -	F I L D United States Court of Appeals Tenth Circuit UNITED STATES OF APPEALS 18 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, No. v. (D. Colorado) SERGIO ORTEGA-GUZMAN, (D.C. No. 02-CR-134-N) Defendant-Appellant. ORDER AND JUDGMENT * Before EBEL, HENRY, and HARTZ, Circuit After examining the briefs and appellate record, this panel determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Sergio pleaded to unlawfully reentering the United States after deportation an aggravated felony in violation of 8 U.S.C. §§ This order and is not binding precedent, except the doctrines of law of the case, res judicata, and collateral The court generally disfavors the citation of orders and judgments; nevertheless, an order and may be cited under the terms and conditions 10th Cir. R. 1326(a) and (b)(2). He appeals the district court's denial of motion to dismiss the indictment and raises an issue regarding his sentence. Counsel appointed to represent defendant appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm the district court’s denial of Mr. Ortega-Guzman’s motion to dismiss the indictment and affirm the conviction. I. Mr. Ortega-Guzman, a Mexican citizen, was deported by the United States in August 2001. He had previously been convicted of an aggravated felony in state court. He subsequently returned to the United States without lawful permission, and, March of 2002, he was arrested in Weld County, Colorado, where state authorities charged him with driving without a license and without valid insurance. Convicted both charges, he ten days in jail, after which the Immigration and Naturalization Service took him custody. The federal government indicted him for violating 8 U.S.C. 1326(a) and (b)(2), charging that he illegally re-entered the United States after deportation and he so after being convicted of an aggravated felony. Mr. Ortega-Guzman moved to the indictment before trial, claiming that his original deportation proceeding was tainted by a due process violation. The district court denied the motion. -2- the district court rejected this motion to dismiss the indictment, Mr. Ortega-Guzman pleaded guilty to the charged offense. His “Rule 11 Plea Statement,” the parties submitted in of formal plea agreement, was unconditional, that is, it preserved no for appeal. The district court accepted Mr. Ortega-Guzman’s guilty plea, finding that it met all requirements set forth in Fed. R. Crim. P. 11. After the district court rejected Ortega-Guzman’s motion a downward departure, Mr. Ortega-Guzman was sentenced to months’ imprisonment. II. Mr. Ortega-Guzman has asked his counsel to appeal the court’s denial of his motion to dismiss the indictment and to challenge the denial of the motion for downward Anders holds that finds a case to be wholly frivolous after conscientious he should advise the court request to withdraw. Counsel must in addition submit to both the court and a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any he chooses, and the appellate thereafter undertakes a complete examination of all proceedings and decides appeal is in fact frivolous. If it so finds, it may grant request to withdraw and dismiss the appeal. See Anders, 386 U.S. at 744. -3- Mr. Ortega-Guzman Defendant notified of his right to file a pro se brief, and he has chosen not to do so. Accordingly, we turn to an examination of the proceedings below determine if the appeal is wholly frivolous. In Anders brief, counsel first dismisses that the district court erred in denying the motion to dismiss the indictment. As noted above, however, Mr. Ortega-Guzman’s plea agreement no for appeal. See United States v. Ryan, 894 F.2d 355, 360-61 (10th 1990) 11 requires a defendant to reserve the specific issue to be appealed). In the absence of a plea, a defendant who pleads guilty admits to all of the factual allegations contained in indictment and the consequences of those acts. See United Broce, 488 U.S. 563, 569-70 (1989); also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has admitted in open court he is in fact guilty of the offense with which is charged, he may not thereafter raise independent claims relating the deprivation constitutional rights that occurred prior to the of the plea. He may only attack the voluntary and intelligent character of the guilty plea.”). Mr. Ortega-Guzman does not challenge the “voluntary and intelligent character” of his guilty plea. See id., 411 U.S. at 267. Consequently, Mr. Ortega-Guzman has no basis for collaterally attacking his deportation proceeding. -4- Ortega-Guzman challenges the district court’s failure to him a downward departure. In so doing, clearly recognized that had the discretion to depart downward declined to do so. Because the court acknowledged its authority to such a departure, we have no jurisdiction its decision refusing to exercise that authority. See United States v. Castillo, 140 F.3d 874, 889 (10th Cir. 1998). We have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant's We find nothing in the record to indicate that the imposed was in violation of the law or the result of a misapplication of the sentencing guidelines. Accordingly, are without to such See United States v. Sanchez, F.3d 796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a). III. CONCLUSION AFFIRM the judgment of the district court denying Mr. Ortega-Guzman’s motion to the AFFIRM the conviction, and we GRANT motion to for the Court, Robert H. Henry Circuit Judge -5-	F I L e d unitEd sTaTeS CouRT oF aPpEALs tenTh cirCUIt UnitEd StaTeS COUrT Of aPpeals JUL 18 2003 tentH CirCUiT pATricK fIshER clErK uNited STAtES oF AMeRiCa, plaiNtiff-apPeLLeE, no. 02-1522 v. (d. COloradO) SErGio oRtEga-GuzmaN, (d.C. nO. 02-CR-134-n) dEfenDaNT-aPpeLLANT. ORDER AND JudGMeNT * BeFOre eBeL, HenrY, And haRtz, cirCuit jUDGES. AFTer eXAMINing The bRIefs And ApPeLLAtE rECorD, THIs panEL hAs DeTERmINEd uNanImousLY thaT oRaL ARGuMenT WOuld NOt MATEriALlY assiST The deTerMinaTiON OF THIs aPpeAl. SEE fed. r. app. P. 34(a)(2)(C); 10TH Cir. R. 34.1(G). THE CAse is THEREFoRE OrdERed sUbmItTEd withOUT ORAl arGUmeNt. sERgio oRTEga-guzMAN pLEADED GuiLty tO UnLAwFUllY reEnterinG ThE uNItEd stateS AFTeR dEportatIOn fOr An aGgRavATED feLONy IN VioLAtIoN Of 8 U.S.c. §§ * tHIS OrDeR and JUdgMENT is nOt BINDInG pReCedenT, ExCEpt UndEr THe dOCtrINes OF LAW OF thE CasE, rES juDiCata, And cOLlAteRaL EStoPpEL. The COUrT gENerallY DISFaVOrS tHE cITatiON Of OrdErS AnD jUDGmEnTS; nevertHElesS, aN ordEr and JuDgmeNt May be cItED unDER THE terMs aND CoNdItIONs oF 10tH ciR. r. 36.3. 1326(a) aNd (B)(2). He aPPEaLS THe dIsTrIcT cOUrt's denIaL OF HiS MOTIoN tO dIsmiss THe InDictMeNt ANd raisES aN isSUE regaRding HIS sENteNcE. cOUNSel aPPoInTed To rEpreSent DefEnDAnT ON aPPEAL fiLed a BrIEF pursUant To andERS V. cALIFoRnia, 386 u.s. 738 (1967). We aFFIrM THe diSTrICt COURT’S deNial Of mR. OrtEGa-GuZmAN’S mOtION tO dismiSs thE iNDiCtmeNt anD We affirm THE cOnVICTiOn. i. BAcKGROUNd MR. ORteGA-GUZMaN, A MexicaN CiTiZeN, WAS dEpoRTED By tHe UNitEd stateS In aUgUSt 2001. He HAD pREVIouslY bEEn cOnvICteD oF aN AgGRaVATEd FeLONy IN colOrado STAte COurt. HE SUbSEQUENtLy rEtuRNED to THe UnitEd states WIThout laWfuL peRmiSSioN, anD, in March Of 2002, he Was aRreStED In Weld CouNtY, CoLOrADO, wHere STaTE AuTHorItieS chaRGeD HiM WiTh driviNG wIthoUT a liCEnSE anD wITHoUt vALid InsUraNCE. coNVicTeD of bOtH ChArgEs, hE speNT tEN DaYS in jAil, aFTeR WhiCH tHe imMiGRATioN aND naTUrALIZatIoN SeRvICe TOOk hIM iNTo CUStOdy. THE fEDeRAl goVeRNMeNt iNDICTEd Him FoR violAtINg 8 u.S.C. § 1326(a) aND (b)(2), ChArging tHAT he ILLeGAllY RE-enTerED THe uniTEd stATEs aFtEr DePoRTATioN AnD ThAT he DID sO aFTer BeINg COnvIcted of aN agGRAvATeD feLoNY. mR. OrTEGa-gUzmAn MOved To DIsMiSs thE INdICTment beFORE TRial, cLaIMinG thAT HIs origiNAl DePoRTAtiON proCEeDIng waS taiNtEd BY a due PRoCeSs ViOlaTIOn. The DisTRiCT CourT dEnIeD ThE MotiON. -2- aFTeR The DiStRIcT coUrT REjECteD ThiS mOtiON to dISMiSS the IndIctment, mR. OrTEgA-GUZMan pLEadED GuiLty to ThE CHargED oFfeNsE. hiS “rUlE 11 plea sTatEmeNT,” WhIcH ThE PaRTiEs SUbmiTtEd in LieU OF a FOrMAl PLea AgrEeMenT, WAs uncoNDiTIonAl, tHAT Is, it preSERVed No IsSuEs FOR aPpeal. tHE distRiCt Court aCCEptEd MR. oRTEga-gUzman’S gUILTY PLeA, FInDiNg that it Met ALL THe REQUIrEmEnTs SeT Forth IN fEd. R. cRim. p. 11. AFter THe DISTRiCT COUrt rejeCTED mR. OrTegA-guZmaN’S motIon For a dOWNWArD deParTuRE, mR. OrtEGA-GuZMaN wAs sENTenCEd TO 57 mONTHs’ iMPrIsoNMEnt. ii. dIscussION mr. ORtega-guZMAn hAs aSked his COUnSEl to appEAL thE DIstriCt CoURt’s DEnIal Of HIS MoTiON tO diSMISs THe iNdiCTMeNT AND to challeNGE THE DEnIaL of tHe motiOn fOr downWARD dePARTURE. anDeRs holds THAt if counSEl fINdS A CAsE to BE WhOLly FRIVoLOuS aFTEr cOnSCIENtIoUs ExAMinatIon, HE ShOUlD so ADvIse ThE COurT ANd reQueST peRMissION To WitHDrAw. COuNSeL must In aDDITioN submIt to bOth tHe CourT AnD HIs cliENt a bRiEF rEfeRriNg To AnYThinG in tHE record aRGUAbly SUpPoRTive oF thE aPPeAL. tHE cLiENT MaY THEN rAisE ANy poInTs hE chooses, AND thE apPeLLaTe COurT THErEafteR underTAKes A coMPleTe examINATIOn Of All pRoceEDings and dEcidES whETHEr tHE AppEal IS iN facT fRIvOlOUS. if iT so FinDs, IT maY GrANT coUNsEL’S REqUESt to wiTHdrAW ANd DISmiSS The AppEAL. sEe aNdERS, 386 u.s. At 744. -3- MR. oRtegA-gUzMAN deFendAnt wAs nOtiFied Of hIS RIgHT TO fiLE a PrO se brIef, aND HE Has ChOsEn nOT TO Do SO. AcCOrDiNGLY, We TUrN To An eXAmiNATIOn Of tHE proCeeDiNgS beLOw tO DeTeRmIne IF tHE aPpeAl IS WHoLlY frIvolouS. iN his anDErS BRiEF, COunsel FIRSt DIsMIsses ThE POsSibIlItY That tHE dIsTrIcT cOuRt ErRED In Denying THe MOTION tO dIsmIsS tHe InDIctmEnT. As noTEd abOVE, HoWever, mR. OrtegA-guzmAN’S PLEA AGreEMeNt PReSerVeD no IsSuES FOR APpEaL. seE UnItED sTATEs V. ryAn, 894 f.2D 355, 360-61 (10Th CIr. 1990) (rULE 11 ReqUiReS a DEFEnDANT to ReSerVE The SpECIFiC iSsUe tO Be apPeaLED). In The ABsenCE oF A cONditiOnaL plEa, a defENDaNt who PLEAds GuILty ADMITS To All Of THe Factual aLlEGatIons cOntAineD IN the indIctmEnT AnD THe leGaL coNSEquEnCEs Of THOse ACTS. sEE uniTEd stAtEs V. broce, 488 U.S. 563, 569-70 (1989); see ALsO toLLeTT v. henDERSoN, 411 u.S. 258, 267 (1973) (“WhEn a CRiMInal DefeNDaNT HAS SolEMnLy ADmittEd in oPen cOUrT tHat hE IS in FacT guIlTy OF tHe OffENsE wItH whIcH He iS CharGEd, HE mAy noT ThEREaFTeR raIsE INdEPEnDent clAIMs RElatINg To The DePRiVAtion OF cONsTITuTIOnAl RiGhTs thAt OCCuRrEd PRior TO tHe entry oF The GUilTy PlEA. HE MaY ONlY ATtaCK tHE VOluNtaRy aNd inTelLIgENt CHARacTER of tHe GUIlTy PLea.”). MR. OrTEga-gUzmAN dOES NOt chalLENgE thE “VOlUNtary anD INtELliGEnT chaRAcTEr” oF hIS GUIltY PLea. seE id., 411 u.s. At 267. cOnsEqueNtlY, MR. ORtega-guZmAN hAS No basiS FOR COLLaTeRallY aTTACkinG his dEportAtION procEedINg. -4- nExt, mR. oRTegA-guzmaN cHALLenGes thE DiSTrIct cOurT’s Failure To gRANT hIm a doWNWARd DePArtURe. in so dOIng, THE cOuRT clEARLY RecOgNIZEd tHat IT Had THe disCreTion to DEpaRT DowNwarD BUt DEClInEd TO DO so. BecaUse the coURT aCKnowLedgeD itS autHOrity TO gRANt SuCH a DepaRTure, WE hAve NO jurISDictION to REvIEw ItS DecIsIOn refUSInG TO eXeRcise THAT aUtHoRity. sEe unitEd StAtes v. cAStilLO, 140 f.3D 874, 889 (10tH ciR. 1998). wE HAvE caREfulLy eXAmiNED thE ReCOrD to asCerTaiN WheTHEr anY OtHEr GroUND exIsTS tO SUPpORT a cHalLEngE To DEFendANt's SeNTEnce. WE fIND notHiNg in the RecoRd TO inDicatE tHaT the seNteNCe ImPOSED wAS IN vioLAtIon OF ThE lAW oR thE resUlT OF A mISAppLIcaTION OF thE sENtEnCING GUiDEliNeS. aCCOrDIngLy, WE ARe WITHouT juRISDicTIOn To COnsiDER such a ChALlenge. see UnITEd sTaTeS V. sANcHez, 146 F.3d 796, 796-97 (10Th CIR. 1998); 18 u.s.c. § 3742(A). iiI. cOncLUSion accorDiNGLY, we aFfIRm THe JuDgmEnT oF tHe diStricT CoUrT DENyinG MR. oRtEGa-GUZMAN’s MOTIOn to DISmISS THE indicTMenT, wE afFIrM thE coNViCtioN, and we GRANT COunseL’s MOtION to wItHDrAW. ENtEreD FOr THE cOuRT, roBERt H. heNry CiRcUIt JUdGE -5-	F I L E DUnited States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 182003TENTHCIRCUIT PATRICK FISHER Clerk UNITED STATESOF AMERICA, Plaintiff-Appellee,No. 02-1522 v. (D. Colorado) SERGIO ORTEGA-GUZMAN, (D.C. No. 02-CR-134-N) Defendant-Appellant. ORDERAND JUDGMENT * Before EBEL, HENRY,and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. SeeFed.R. App. P.34(a)(2)(c);10th Cir. R. 34.1(G). The caseis therefore ordered submitted without oralargument. Sergio Ortega-Guzman pleaded guilty to unlawfully reentering the United States after deportation for an aggravated felony inviolation of 8 U.S.C. §§ *This order andjudgment is notbinding precedent, except under the doctrines of law of the case, resjudicata, and collateral estoppel. The court generally disfavors thecitation oforders and judgments; nevertheless, an order and judgment may be cited underthe terms and conditionsof 10th Cir. R. 36.3. 1326(a) and (b)(2). He appeals thedistrict court's denial of his motion to dismiss the indictmentand raises an issue regardinghis sentence. Counsel appointedto represent defendant on appeal filed a brief pursuant to Anders v.California, 386 U.S. 738 (1967). We affirm the district court’s denial ofMr. Ortega-Guzman’s motion to dismiss the indictment and we affirm the conviction. I. BACKGROUND Mr. Ortega-Guzman, a Mexican citizen, was deported by theUnited StatesinAugust 2001. He had previously beenconvicted of an aggravated felony in Colorado state court. He subsequently returned to the UnitedStates without lawful permission, and, in March of 2002, he wasarrested in Weld County,Colorado, where state authorities charged him with driving without a license andwithout valid insurance.Convicted of bothcharges, he spent ten daysinjail, after which the Immigration and Naturalization Service tookhim into custody. The federal government indicted him for violating 8 U.S.C. §1326(a) and(b)(2), charging that he illegallyre-entered the United States after deportation and that he did so after being convicted of an aggravated felony. Mr. Ortega-Guzman moved todismiss the indictment before trial, claiming that hisoriginal deportation proceedingwas tainted by a due process violation. Thedistrict court denied the motion. -2- After the district court rejected this motion todismissthe indictment, Mr. Ortega-Guzman pleaded guilty to the charged offense. His “Rule11 Plea Statement,” which the parties submitted in lieu of aformal plea agreement, wasunconditional, that is, it preserved noissues for appeal. The district court accepted Mr. Ortega-Guzman’s guilty plea, finding that it met all therequirements set forth in Fed. R. Crim. P. 11. After the district courtrejected Mr. Ortega-Guzman’s motion for adownward departure, Mr. Ortega-Guzmanwas sentenced to57 months’ imprisonment.II. DISCUSSION Mr. Ortega-Guzman has asked his counsel to appeal the districtcourt’s denial of his motiontodismiss the indictment and tochallenge the denial of the motionfor downward departure. Anders holds thatif counselfinds a caseto be wholly frivolous after conscientious examination, he should soadvise the court and request permission to withdraw. Counsel must in addition submit toboth thecourt andhisclient a brief referring to anything in the record arguably supportive ofthe appeal. The client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings anddecides whether theappeal isinfact frivolous.If it so finds, it may grantcounsel’s request to withdraw and dismiss the appeal. See Anders, 386 U.S. at 744. -3- Mr. Ortega-Guzman Defendant was notifiedof his rightto file a pro se brief, and he has chosen not to do so. Accordingly, we turn to an examinationof the proceedings below to determine if the appeal is wholly frivolous. In his Andersbrief,counselfirst dismisses the possibility that the district court erred in denying the motion to dismissthe indictment. As noted above, however,Mr.Ortega-Guzman’s plea agreement preserved noissuesfor appeal. See United Statesv. Ryan, 894 F.2d 355, 360-61 (10th Cir. 1990) (Rule11 requires adefendantto reserve the specific issue to be appealed). In the absence of a conditional plea, a defendant who pleads guiltyadmits to all of the factual allegations contained in the indictment and thelegal consequences of those acts. See United States v. Broce, 488 U.S. 563, 569-70 (1989); seealso Tollettv. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendanthas solemnly admittedin open court that he is in factguilty of theoffense with which he is charged,he maynot thereafter raise independent claims relating to the deprivationof constitutionalrights that occurred priorto the entry of the guiltyplea. He mayonly attack thevoluntary and intelligent character of the guilty plea.”). Mr. Ortega-Guzman does not challenge the “voluntaryand intelligent character” of his guilty plea. See id., 411 U.S. at 267. Consequently, Mr. Ortega-Guzman has no basis for collaterally attacking his deportation proceeding.-4- Next, Mr. Ortega-Guzman challenges the district court’sfailure to grant him a downward departure. In so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. Because the court acknowledgeditsauthority to grant such a departure, we have no jurisdiction to review its decisionrefusing to exercisethat authority. See United States v. Castillo,140 F.3d 874, 889 (10th Cir. 1998). We have carefully examinedthe record to ascertain whether any other ground existstosupport a challenge todefendant's sentence. We find nothing in the record to indicate that the sentence imposed was in violationof the law or the result of a misapplication of the sentencing guidelines. Accordingly, we arewithout jurisdictionto consider such a challenge. See United States v. Sanchez, 146 F.3d 796, 796-97 (10thCir. 1998); 18 U.S.C. § 3742(a).III. CONCLUSION Accordingly, weAFFIRM the judgment of the district courtdenying Mr. Ortega-Guzman’s motion to dismiss the indictment, we AFFIRM theconviction, and we GRANT counsel’s motion to withdraw. Entered for the Court, Robert H. Henry Circuit Judge -5-	F _I_ _L_ _E_ D United States Court of _Appeals_ Tenth Circuit UNITED _STATES_ COURT OF APPEALS JUL _18_ 2003 TENTH CIRCUIT _PATRICK_ _FISHER_ Clerk UNITED STATES OF _AMERICA,_ Plaintiff-Appellee, No. _02-1522_ v. (D. Colorado) SERGIO ORTEGA-GUZMAN, (D.C. No. 02-CR-134-N) Defendant-Appellant. ORDER AND JUDGMENT * Before _EBEL,_ HENRY, and HARTZ, Circuit Judges. After examining the briefs _and_ appellate record, this panel has determined _unanimously_ that _oral_ _argument_ would not materially assist the determination of _this_ _appeal._ See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. _34.1(G)._ The case is therefore _ordered_ submitted without oral _argument._ Sergio Ortega-Guzman pleaded guilty to unlawfully reentering the United States after deportation _for_ an aggravated felony in violation of 8 _U.S.C._ §§ * This order and _judgment_ is not _binding_ precedent, _except_ _under_ _the_ doctrines of law of the _case,_ res _judicata,_ and collateral estoppel. The court generally disfavors the _citation_ of orders and _judgments;_ nevertheless, an order and judgment _may_ _be_ _cited_ _under_ the terms _and_ conditions _of_ 10th Cir. R. 36.3. 1326(a) _and_ (b)(2). He _appeals_ the _district_ court's denial of his _motion_ to _dismiss_ the indictment and _raises_ an _issue_ regarding his sentence. Counsel appointed to _represent_ defendant on appeal filed a brief _pursuant_ _to_ _Anders_ _v._ California, 386 _U.S._ 738 (1967). We affirm the district court’s denial of _Mr._ Ortega-Guzman’s motion to dismiss the indictment _and_ _we_ affirm the conviction. I. BACKGROUND _Mr._ _Ortega-Guzman,_ a _Mexican_ citizen, _was_ deported by the United States in August _2001._ _He_ had previously been _convicted_ _of_ an _aggravated_ felony in Colorado state court. He subsequently returned to the United States without lawful _permission,_ and, in March of 2002, he _was_ arrested in Weld _County,_ _Colorado,_ where state authorities _charged_ _him_ with driving without a license and without valid insurance. Convicted _of_ both charges, he spent ten days in jail, after which _the_ Immigration and Naturalization _Service_ _took_ him _into_ custody. _The_ federal government indicted him for violating _8_ U.S.C. § 1326(a) and (b)(2), charging that he illegally re-entered the United _States_ after deportation and that he did so after being convicted of an aggravated felony. Mr. _Ortega-Guzman_ moved to dismiss the indictment _before_ trial, claiming _that_ his original deportation proceeding was _tainted_ _by_ _a_ due process violation. The district _court_ _denied_ the motion. _-2-_ After the district court rejected this motion to _dismiss_ the _indictment,_ Mr. _Ortega-Guzman_ _pleaded_ _guilty_ to _the_ _charged_ _offense._ His “Rule 11 Plea Statement,” _which_ _the_ _parties_ submitted in lieu of a formal _plea_ agreement, was unconditional, that is, it preserved no _issues_ _for_ appeal. The district court accepted Mr. _Ortega-Guzman’s_ _guilty_ plea, finding that it met all the requirements _set_ forth in Fed. R. _Crim._ _P._ 11. After the _district_ _court_ rejected Mr. Ortega-Guzman’s motion for _a_ downward departure, Mr. Ortega-Guzman was sentenced to _57_ months’ _imprisonment._ II. DISCUSSION _Mr._ _Ortega-Guzman_ has asked his _counsel_ _to_ appeal _the_ district court’s denial of his _motion_ to dismiss the indictment _and_ _to_ challenge the denial of the motion for downward departure. Anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, _he_ should so _advise_ the court and request permission to withdraw. _Counsel_ must in addition _submit_ to both the _court_ and his client a brief referring to anything in _the_ record _arguably_ _supportive_ of the appeal. The client may _then_ _raise_ any _points_ he chooses, and the appellate court thereafter undertakes _a_ complete _examination_ of all _proceedings_ _and_ _decides_ whether the appeal is _in_ fact frivolous. If it so finds, it may grant counsel’s request to _withdraw_ and dismiss the appeal. See _Anders,_ 386 U.S. _at_ 744. _-3-_ Mr. Ortega-Guzman Defendant was _notified_ of his right to file a pro _se_ brief, _and_ he has chosen not to do so. Accordingly, we turn to an examination of the proceedings _below_ _to_ determine if the appeal _is_ wholly _frivolous._ In his Anders brief, counsel first dismisses the possibility _that_ the district court _erred_ in denying the motion _to_ dismiss the _indictment._ As noted above, however, Mr. Ortega-Guzman’s plea agreement _preserved_ _no_ issues for appeal. See United _States_ v. Ryan, 894 F.2d 355, 360-61 (10th Cir. 1990) _(Rule_ 11 _requires_ a defendant to reserve the specific issue to be appealed). In the absence of a conditional plea, a defendant who pleads guilty admits to _all_ of _the_ factual allegations contained in the indictment and the legal consequences of those acts. _See_ United States _v._ Broce, 488 U.S. 563, 569-70 (1989); _see_ also Tollett v. _Henderson,_ 411 U.S. 258, 267 _(1973)_ (“When a criminal _defendant_ _has_ solemnly admitted in open court _that_ he is in fact guilty of the offense with which _he_ is charged, he _may_ not thereafter raise independent claims relating _to_ the deprivation of constitutional rights that occurred prior to _the_ entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.”). Mr. Ortega-Guzman _does_ not challenge _the_ “voluntary and intelligent character” of his guilty plea. See id., _411_ U.S. at 267. Consequently, Mr. Ortega-Guzman has no basis for _collaterally_ _attacking_ his deportation proceeding. -4- Next, Mr. Ortega-Guzman challenges the district court’s failure _to_ _grant_ him _a_ downward departure. _In_ so doing, the court clearly recognized that it had the discretion to depart downward _but_ declined to do so. _Because_ the court acknowledged _its_ authority _to_ grant _such_ a departure, we have _no_ jurisdiction to _review_ its decision refusing to exercise that authority. _See_ United States _v._ Castillo, _140_ F.3d 874, _889_ _(10th_ Cir. 1998). We have _carefully_ examined the record _to_ ascertain whether any other ground exists to support _a_ challenge to defendant's sentence. We _find_ nothing in the record to indicate _that_ the sentence imposed was in violation of _the_ law _or_ _the_ result of _a_ misapplication of the _sentencing_ _guidelines._ _Accordingly,_ _we_ are without jurisdiction to consider such _a_ challenge. See _United_ States _v._ Sanchez, 146 F.3d 796, 796-97 (10th Cir. 1998); 18 _U.S.C._ § 3742(a). III. _CONCLUSION_ Accordingly, we AFFIRM the judgment of the district court denying Mr. Ortega-Guzman’s motion to dismiss the indictment, we AFFIRM the conviction, and _we_ GRANT counsel’s motion _to_ withdraw. Entered for the Court, Robert H. Henry Circuit _Judge_ -5-
374 So.2d 929 (1979) Richard GRAHAM v. STATE. 4 Div. 685. Court of Criminal Appeals of Alabama. March 27, 1979. Rehearing Denied April 17, 1979. 930 David C. Emery, Ozark, for appellant. William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee. LEIGH M. CLARK, Retired Circuit Judge. Appellant was indicted for murder in the first degree of "Donna M. Wilcynski, by stabbing her with a knife or other sharp instrument." A jury found him guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. He was sentenced accordingly. Appellant submits as the only issue on appeal: "Whether or not sufficient evidence was presented to sustain the verdict of first degree murder." We have no doubt that there was bountiful evidence that the alleged victim was brutally slain, in the manner charged in the indictment, by some fiend, and that the homicide was murder in the first degree. The only controverted issue on the trial was whether defendant-appellant committed the homicide. The record indicates, and almost conclusively shows, that there was no eyewitness to the homicide other than the victim and her murderer(s); that they were the only persons in the apartment of the victim at Byrd Apartments, Ozark, when she was killed, between 11:00 P.M. and midnight on April 11, 1978. Her death resulted from multiple stab wounds in various parts of her body, from front to back and from head to feet. They were so extensive and numerous that the physician who examined her body was unable to number them. He grouped them in a description of them in his testimony as shown by six complete pages of the record. That she was dead before or immediately after the completion of the stabbing of her, there can hardly be any doubt. Her body was not discovered until late in the afternoon on April 12, 1978, after neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed place at the apartment, that she was nowhere to be seen, that her apartment was locked and that efforts to get her to the door were futile. One of them called an officer and soon thereafter a number of them arrived. Upon arrival of the officers, a master key was obtained, and thereby her apartment was entered by one of the officers, who found her body in the bathtub. He promptly secured the scene and sent for an investigator of the Police Department of Ozark, 931 who soon arrived; he looked at the body in the bathtub, and then observed a three-year-old child in the bedroom of the apartment. He then called the coroner and personnel from the crime laboratory and secured the building for a thorough and accurate on-the-premises criminal investigation by experienced personnel, which was assiduously performed, continuing for about two hours at the scene. Blood samples were obtained, latent fingerprints were lifted, numerous photographs were taken, samples of hair were gathered from the apartment and other physical items of evidence were taken into custody. The victim's body in the bathtub was lying on its back. All but the face was covered with sheets and other coverings from her bed. Upon removal of the bed coverings, her body was completely nude. There was no water in the bathtub; the drain thereof was closed. The floor of the bathroom was dry, but the carpet or rug in the hall was soaked with water, and the carpet or rugs in the victim's bedroom and in the child's bedroom were wet. A test made by an officer showed that water from the overflowing bathtub would run into portions of the floor of the apartment that were wet. Bloodstains were found at several places in the apartment, including the mattress and the box springs of victim's bed, the floor, walls, curtains, and on the outside handle of the door to the apartment. The furniture in the bedroom appeared to be ransacked. The living room appeared to be normal. There were pry marks on the outside of a window to the apartment. The evidence, consisting of the testimony of twenty-seven witnesses and numerous exhibits, is almost, if not entirely, free of substantial conflict. Witnesses for the State may be grouped: (1) Those testifying as to conduct of defendant while at Byrd Apartments on Sunday, April 9, 1978, (2) Those testifying as to his conduct at Byrd Apartments the night of the murder, April 11, 1978, (3) A few who heard noises in the victim's apartment between 11:00 P.M. and midnight, April 11, (4) Expert and lay witnesses as to the condition and contents of the victim's apartment at the time her body was discovered therein in the late afternoon of April 12, (5) Witnesses, chiefly expert witnesses, as to (a) the condition of the corpse, (b) fingerprints, (c) samples of blood found in the victim's apartment, (d) samples of hair from victim's apartment, (e) what was revealed by a search of defendant and his home, (f) statements made by defendant after the murder and (g) what was found in defendant's automobile that he was driving the night of the murder. Evidence on behalf of defendant consisted of defendant's own testimony as to his conduct on Sunday, April 9, and on the night of the murder and the testimony of his wife, which pertained chiefly to his conduct prior to his going to the Byrd Apartments on April 11 and his return to their home after midnight of the night of the murder. Some of the witnesses for the State who testified as to the presence and conduct of defendant at the Byrd Apartments on Sunday, April 9, 1978, said they saw him at the courtyard with his young son Sunday morning; that there was a "cookout" party that afternoon and that defendant and his son and the victim and her daughter, the child who was in the victim's apartment the night of the murder, were at the party; that defendant played with Mrs. Wilcynski's child, and inquired of some at the party as to Mrs. Wilcynski. There was some evidence that he attempted to converse with Mrs. Wilcynski but that she did not talk with him. Captain William Dortch, of the United States Army, a friend of appellant (a warrant officer of the Army) had an apartment at the Byrd Apartments. Defendant was visiting Captain Dortch on Sunday, April 9. According to defendant's testimony, he was invited by Captain Dortch to stay for the cookout late that afternoon. *932 Appellant returned to the apartment complex on the evening of April 11. As much of the testimony is merely cumulative as to undisputed facts, no attempt will be made to particularize the testimony of all of the individual witnesses or to name all of them. Mrs. June Napier, who had seen appellant in the courtyard on Sunday afternoon, testified also that as she was unloading groceries from her automobile on the night of the murder, appellant approached her, picked up a bag of groceries and stated that he would help her take them up the stairs. She said, "I told him that was all right, that I could get them and he said, `Well, I understand how it is. It's awful hard to raise children alone, isn't it?' and I told him that I wasn't alone. ". . . "I took the groceries in the house and he just came in with a sack of groceries and put them down and ". . . "He was talking to me and I can't remember what he was saying, because I was in a hurry and trying to get dinner ready before Vincent [her husband] came home. I was a few minutes late, and my little girl cut her finger. She just came out of the bathroom, and I hadn't put up Vincent's things, and she got a razor blade and cut her finger with it, and he picked her up and took her in the bathroom and fixed it up. Then he was just talking to her and I was putting away my groceries and stuff, and a while later Vincent came in." Mrs. Napier further testified that while defendant was in the apartment and before her husband returned, she was going "back and forth getting things out of the car and trying to get dinner ready" and that she noticed defendant drinking a bottle of beer. She said that when her husband arrived, a friend, Jeff Parker, was with him and that defendant remained at the apartment and sat down and talked with Mr. Napier and Jeff Parker. She did not stay with the three men but went into the bedroom. While the door of the bedroom was closed, she heard her husband say, "Don't go in there, because my wife is nursing the baby," and when she heard him say that she "just pulled my blouse down and laid the baby down, and he came in there and put his arm around me, and he said, `Which way is the bathroom.'" She then left the bedroom and went into the room where her husband was, and she assumed defendant went into the bathroom, which other evidence shows that he did. According to additional testimony of Mrs. Napier, she was not certain as to the time defendant left the apartment of the Napiers'. She remembered that he was still there at 10:00 o'clock, and that she had gone downstairs to get some clothes out of the drier and when she returned he had gone. She said he must have gone "around 10:45, or something like that	374 so. 2d 929 ( 1979 ) richard graham v. state. 4 div. 685. court of criminal appeals of alabama. march 27, 1979. rehearing commencing april 17, 1979. * 930 david c. emery, ozark, for appellant. william j. baxley, atty. gen., and edwin v. yates, asst. atty. gen., for the state, appellee. leigh m. clark, retired circuit judge. appellant was indicted for murder in the first degree of " donna m. wilcynski, by stabbing her with a knife or other sharp instrument. " a jury determined him guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. he was sentenced accordingly. appellant submits as the only issue on appeal : " whether or not sufficient evidence was presented to sustain the verdict of first degree murder. " we have no doubt that there was bountiful evidence that the alleged victim was brutally slain, in the manner charged in the indictment, by some fiend, and that the homicide was murder in the first degree. the only controverted issue on the trial was whether defendant - appellant committed the homicide. the record indicates, and almost conclusively shows, that there was no eyewitness to the homicide other than the victim and her murderer ( s ) ; that they were the only persons in the apartment of the victim at byrd apartments, ozark, when she happened killed, approximately 11 : 00 p. m. and midnight on april 11, 1978. her blood resulted from multiple stab wounds in various parts of her body, from front to back and from head to feet. injuries were so extensive and numerous that the physician who examined her body was unable to number them. he grouped them in a description of them in his testimony as shown by six complete pages of the record. that she was dead before or immediately after the completion of the stabbing of her, there can hardly be reasonable doubt. her body was not discovered until late in the afternoon on april 12, 1978, after neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed place at the apartment, that she was nowhere to be seen, that her apartment was locked so that efforts to get her to the door were futile. one of them called an officer and soon thereafter a number of them arrived. upon arrival of the officers, a large key was obtained, and thereby her apartment was entered by one of the officers, who found her body in the bathtub. he promptly secured the scene and sent for an investigator of the police department of ozark, * 931 who soon arrived ; he looked at the body in the bathtub, and then observed a three - year - old child in the bedroom of the apartment. he then called the coroner and personnel from the crime laboratory and secured the building for a thorough and accurate on - the - premises criminal investigation by experienced personnel, which was assiduously performed, continuing for about two hours at the scene. blood samples were obtained, latent fingerprints were lifted, numerous photographs were taken, samples of hair were gathered from the apartment and other physical items of evidence were taken into custody. the victim ' s body in the bathtub was lying on its back. all but the face was covered with sheets and other coverings from her bed. upon removal of the bed coverings, her body was completely nude. there was no water in the bathtub ; the drain thereof was closed. the floor of the bathroom was dry, but the carpet or rug in the hall was soaked with water, and the carpet or rugs in the victim ' s bedroom and in the child ' s bedroom were wet. a test made by an officer showed that water from the overflowing bathtub would run into portions of the floor of the apartment that were wet. bloodstains were found at several places in the apartment, including the mattress and the box springs of victim ' s bed, the floor, walls, curtains, and on the outside handle of the door to the apartment. the furniture in the bedroom appeared to be ransacked. the living room appeared to be normal. there were pry marks on the outside of a window to the apartment. the evidence, consisting of the testimony of twenty - seven witnesses and numerous exhibits, is almost, if not entirely, free of substantial conflict. witnesses for the state may be grouped : ( 1 ) those testifying as to conduct of defendant while at byrd apartments on sunday, april 9, 1978, ( 2 ) those testifying as to his conduct at byrd apartments the night of the murder, april 11, 1978, ( 3 ) a few who heard noises in the victim ' s apartment between 11 : 00 p. m. and midnight, april 11, ( 4 ) expert and lay witnesses as to the condition and contents of the victim ' s apartment at the time her body was discovered therein in the late afternoon of april 12, ( 5 ) witnesses, chiefly expert witnesses, as to ( a ) the condition of the corpse, ( b ) fingerprints, ( c ) samples of blood found in the victim ' s apartment, ( d ) samples of hair from victim ' s apartment, ( e ) what was revealed by a search of defendant and his home, ( f ) statements made by defendant after the murder and ( g ) what was found in defendant ' s automobile that he was driving the night of the murder. evidence on behalf of defendant consisted of defendant ' s own testimony as to his conduct on sunday, april 9, and on the night of the murder and the testimony of his wife, which pertained chiefly to his conduct prior to his going to the byrd apartments on april 11 and his return to their home after midnight of the night of the murder. some of the witnesses for the state who testified as to the presence and conduct of defendant at the byrd apartments on sunday, april 9, 1978, said they saw him at the courtyard with his young son sunday morning ; that there was a " cookout " party that afternoon and that defendant and his son and the victim and her daughter, the child who was in the victim ' s apartment the night of the murder, were at the party ; that defendant played with mrs. wilcynski ' s child, and inquired of some at the party as to mrs. wilcynski. there was some evidence that he attempted to converse with mrs. wilcynski but that she did not talk with him. captain william dortch, of the united states army, a friend of appellant ( a warrant officer of the army ) had an apartment at the byrd apartments. defendant was visiting captain dortch on sunday, april 9. according to defendant ' s testimony, he was invited by captain dortch to stay for the cookout late that afternoon. * 932 appellant returned to the apartment complex on the evening of april 11. as much of the testimony is merely cumulative as to undisputed facts, no attempt will be made to particularize the testimony of all of the individual witnesses or to name all of them. mrs. june napier, who had seen appellant in the courtyard on sunday afternoon, testified also that as she was unloading groceries from her automobile on the night of the murder, appellant approached her, picked up a bag of groceries and stated that he would help her take them up the stairs. she said, " i told him that was all right, that i could get them and he said, ` well, i understand how it is. it ' s awful hard to raise children alone, isn ' t it? ' and i told him that i wasn ' t alone. "... " i took the groceries in the house and he just came in with a sack of groceries and put them down and "... " he was talking to me and i can ' t remember what he was saying, because i was in a hurry and trying to get dinner ready before vincent [ her husband ] came home. i was a few minutes late, and my little girl cut her finger. she just came out of the bathroom, and i hadn ' t put up vincent ' s things, and she got a razor blade and cut her finger with it, and he picked her up and took her in the bathroom and fixed it up. then he was just talking to her and i was putting away my groceries and stuff, and a while later vincent came in. " mrs. napier further testified that while defendant was in the apartment and before her husband returned, she was going " back and forth getting things out of the car and trying to get dinner ready " and that she noticed defendant drinking a bottle of beer. she said that when her husband arrived, a friend, jeff parker, was with him and that defendant remained at the apartment and sat down and talked with mr. napier and jeff parker. she did not stay with the three men but went into the bedroom. while the door of the bedroom was closed, she heard her husband say, " don ' t go in there, because my wife is nursing the baby, " and when she heard him say that she " just pulled my blouse down and laid the baby down, and he came in there and put his arm around me, and he said, ` which way is the bathroom. ' " she then left the bedroom and went into the room where her husband was, and she assumed defendant went into the bathroom, which other evidence shows that he did. according to additional testimony of mrs. napier, she was not certain as to the time defendant left the apartment of the napiers '. she remembered that he was still there at 10 : 00 o ' clock, and that she had gone downstairs to get some clothes out of the drier and when she returned he had gone. she said he must have gone " around 10 : 45, or something like that	374 So. 2d 929 (1979) Richard GRAHAM v. STATE. 4 Div. 685. Court of Criminal Appeals of Alabama. March 27, 1979. Rehearing Denied April 17, 1979. * 930 David C. Emery, Ozark, for appellant. William J. Baxley, Atty. Gen. , and Edwin L. Yates, Asst. Atty. Gen. , for the State, appellee. LEIGH M. CLARK, Retired Circuit Judge. Appellant was indicted for murder in the first degree of " Donna M. Wilcynski, by stabbing her with a knife or other sharp instrument. " A jury found him guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. He was sentenced accordingly. Appellant submits as the only issue on appeal: " Whether or not sufficient evidence was presented to sustain the verdict of first degree murder. " We have no doubt that there was bountiful evidence that the alleged victim was brutally slain, in the manner charged in the indictment, by some fiend, and that the homicide was murder in the first degree. The only controverted issue on the trial was whether defendant - appellant committed the homicide. The record indicates, and almost conclusively shows, that there was no eyewitness to the homicide other than the victim and her murderer (s ); that they were the only persons in the apartment of the victim at Byrd Apartments, Ozark, when she was killed, between 11: 00 P. M. and midnight on April 11, 1978. Her death resulted from multiple stab wounds in various parts of her body, from front to back and from head to feet. They were so extensive and numerous that the physician who examined her body was unable to number them. He grouped them in a description of them in his testimony as shown by six complete pages of the record. That she was dead before or immediately after the completion of the stabbing of her, there can hardly be any doubt. Her body was not discovered until late in the afternoon on April 12, 1978, after neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed place at the apartment, that she was nowhere to be seen, that her apartment was locked and that efforts to get her to the door were futile. One of them called an officer and s)8n thereafter a number of them arrived. Upon arrival of the officers, a master key was obtained, and thereby her apartment was entered by one of the officers, who found her body in the bathtub. He promptly secured the scene and sent for an investigator of the Police Department of Ozark, * 931 who soon arrived; he looked at the body in the bathtub, and then observed a three - year - old child in the bedroom of the apartment. He then called the coroner and personnel from the crime laboratory and sFDured the building for a thorough and accurate on - the - premises criminal investigation by experienced personnel, which was assiduously performed, continuing for about two hours at the sceJs. Blood samples were obtained, latent fingerprints were lifted, numerous photographs were taken, samples of hair were gathered from the apartment and other physical items of evidence were taken into custody. The victim ' s body in the bathtub was lying on its back. All but the face was covered with sheets and other coverings from her bed. Upon removal of the bed coverings, her body was completely nude. There was no water in the bathtub; the drain thereof was closed. The floor of the bathroom was dry, but the carpet or rug in the hall was soaked with water, and the carpet or rugs in the victim ' s bedroom and in the child ' s bedroom were wet. A test made by an officer showed that water from the overflowing bathtub would run into portions of the floor of the apartment that were wet. Bloodstains were found at several places in the apartment, including the mattress and the box springs of victim ' s bed, the floor, walls, curtains, and on the oursiFe handle of the door to the apartment. The furniture in the bedroom appeared to be ransacked. The living room appeared to be normal. There were pry marks on the outside of a window to the apartment. The evidence, consisting of the testimony of twenty - seven witnesses and numerous exhibits, is almost, if not entirely, free of substantial conflict. Witnesses for the State may be grouped: (1) Those testifying as to conduct of defendant while at Byrd Apartments on Sunday, April 9, 1978, (2) Those testifying as to his conduct at Byrd Apartments the night of the murder, April 11, 1978, (3) A few who heard noises in the victim ' s apartment between 11: 00 P. M. and midnight, Ap4l 11, (4) Expert and lay witnesses as to the condition and contents of the victim ' s apartment at the time her body was disc9v$red therein in the late afternoon of April 12, (5) Witnesses, chiefly expert witnesses, as to (a) the condition of the corpse, (b) fingerprints, (c) samples of blood found in the victim ' s apartment, (d) samples of hair from victim ' s apartment, (e) what was revealed by a search of defendant and his home, (f) statements made by defendant after the murder and (g) what was found in defendant ' s automobile that he was driving the night of the murder. Evidence on behalf of defendant consisted of defendant ' s own testimony as to his conduct on Sunday, April 9, and on the night of the murder and the testimony of his wife, which pertained chiefly to his conduct prior to his going to the Byrd Apartments on April 11 and his return to their home after midnight of the night of the murder. Some of the witnesses for the State who testified as to the presence and conduct of defendant at the Byrd Apartments on Sunday, April 9, 1978, said they saw him at the courtyard with his young son Sunday morning; that there was a " cookout " party that afternoon and that defendant and his son and the victim and her daughter, the child who was in the victim ' s apartment the night of the murder, were at the party; that defendant played with Mrs. Wilcynski ' s child, and inquired of some at the (a3ty as to Mrs. Wilcynski. There was some evidence that he attempted to converse with Mrs. Wilcynski but that she did not talk with him. Captain William Dortch, of the United States Army, a friend of appellant (a warrant officer of the Army) had an apartment at the Byrd Apartments. Defendant was visiting Captain Dortch on Sunday, April 9. According to defendant ' s testimony, he was invited by Captain Dortch to stay for the cookout late that afternoon. 932 Appellant returned to the apartment complex on the evening of April 11. As much of the testimony is merely cumulative as to undisputed facts, no attempt will be made to particularize the testimony of all of the individual witnesses or to name all of Ghen. Mrs. June Napier, who had seen appellant in the courtyard on Sunday afternoon, testified also that as she was unloading groceries from her automobile on the night of the murder, appellant approached her, picked up a bag of groceries and stated that he would help her take them up the stairs. She said, " I told him that was all right, that I could get them and he said, ` Well, I understand how it is. It ' s awful hard to raise children alone, isn ' t it? ' and I told him that I wasn ' t alone. ". .. " I took the groceries in the house and he just came in with a sack of groceries and put them down and ". .. " He was talking to me and I can ' t remember what he was saying, because I was in a hurry and trying to get dinner ready before Vincent [her muzband] came home. I was a few minutes late, and my little girl cut her finger. She just came out of the bathroom, and I hadn ' t put up Vincent ' s things, and she got a razor blade and cut her finger with it, and he picked her up and took her in the bathroom and fixed it up. Then he was just talking to her and I was putting away my g3ocerieQ and stuff, and a while later Vincent came in. " Mrs. Napier further testified that while defendant was in the apartment and before her husband returned, she was going " back and forth getting things out of the car and trying to get dinner ready " and that she noticed defendant drinking a bottle of beer. She said that when her husband arrived, a friend, Jeff Parker, was with him and that defendant remained at the apartment and sat down and talked with Mr. Napier and Jeff Parker. She did not stay with the three men but went into the bedroom. While the door of the bedroom was closed, she heard her husband say, " Don ' t go in there, because my wife is nursing the baby, " and when she heard him say that she " just pulled my blouse down and laid the baby down, and he came in there and put his arm around me, and he said, ` Which way is the bathroom. ' " She then left the bedroom and went into the room where her husband was, and she assumed defendant went into the bathroom, which other evidence shows that he did. According to additional testimony of Mrs. Napier, she was not certain as to the time defendant left the apartment of the Napiers '. She remembered that he was still there at 10: 00 o ' clock, and that she had gone downstairs to get some clothes out of the drier and when she returned he had gone. She said he must have gone " around 10: 45, or something like that	So.2d 929 Richard GRAHAM v. STATE. 4 Div. 685. Court of Criminal Appeals of Alabama. 27, 1979. Rehearing Denied 17, 1979. 930 David C. Emery, Ozark, for appellant. William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Gen., for the State, appellee. LEIGH M. CLARK, Circuit Judge. Appellant was indicted for murder in the first degree of "Donna M. Wilcynski, by stabbing her with a knife or other sharp instrument." A found him guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. He sentenced accordingly. Appellant submits as the issue on appeal: "Whether or not evidence was presented sustain the verdict of first degree murder." no doubt that there was bountiful evidence that the alleged was brutally slain, in the manner charged in the indictment, by some fiend, and that the was murder in the first degree. The only controverted issue on the trial whether defendant-appellant committed the homicide. The record and almost conclusively shows, that there was no eyewitness to the homicide other than the victim and her murderer(s); that they were the only persons the apartment of the victim at Byrd Ozark, when she was killed, between 11:00 P.M. and midnight on April 11, 1978. Her resulted multiple wounds in various parts of her body, from to back and from head to feet. were so extensive and numerous that the physician who examined her body was unable to number them. He grouped them in a description of in his testimony as by six pages of the record. That she was dead before or immediately after the completion the stabbing of her, there can hardly be doubt. body was not discovered until late the afternoon on 1978, after neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed place at apartment, that she was nowhere to be seen, that her apartment was locked and that efforts to get her to the were futile. One of them called an officer and a number of them arrived. Upon arrival of the officers, a master key was obtained, and thereby her apartment was entered by one of the officers, who found her body in the bathtub. He promptly secured scene and for an investigator of the Police Department of Ozark, 931 who soon arrived; he looked at the body the and then observed a three-year-old child in the bedroom of the apartment. He then called the and personnel the crime laboratory and secured building for a thorough and accurate on-the-premises criminal investigation by experienced personnel, which was assiduously performed, continuing for about two hours at scene. samples were obtained, latent were lifted, numerous photographs were samples hair were gathered the apartment and other physical items of evidence were taken into victim's body in the bathtub was on its back. All but the was covered sheets and other coverings from bed. Upon removal of bed coverings, her body completely nude. There was no water in the bathtub; the drain thereof closed. The floor the bathroom was but the carpet or rug in the hall was soaked with water, and the carpet or rugs in the victim's bedroom and in the child's bedroom were wet. A test made by an officer showed that water from the overflowing bathtub would run into portions of the floor of the apartment that were wet. Bloodstains were found at several places in the apartment, including the mattress and box springs victim's bed, the floor, walls, curtains, and on the outside of the door to the apartment. The furniture in the bedroom appeared to be ransacked. The living room appeared to be normal. There pry marks on the outside of a window to the apartment. The evidence, consisting the testimony of twenty-seven witnesses and numerous exhibits, is almost, if not entirely, of substantial conflict. Witnesses for the may be grouped: (1) testifying as to conduct of defendant while at Byrd Apartments Sunday, April 9, 1978, Those testifying as to his conduct at Byrd Apartments the night the murder, 11, 1978, (3) A few who heard noises in the victim's apartment between P.M. and April 11, (4) and lay witnesses to the condition and contents the victim's apartment the time her body was discovered therein the late afternoon April 12, (5) Witnesses, chiefly expert witnesses, to (a) the condition of the corpse, (b) (c) samples of blood found in the victim's apartment, (d) samples of hair from victim's apartment, (e) what was revealed by a search defendant his home, (f) statements made by defendant after the murder and (g) what was found in defendant's automobile that was driving the of the murder. Evidence on behalf defendant consisted of defendant's own testimony as to his conduct on Sunday, 9, on the night of the murder and the testimony of his wife, which pertained chiefly to his conduct prior his going to the Apartments on April 11 and his return to their home midnight of the night of the murder. Some of the witnesses for the State testified to the presence and conduct of defendant at the Byrd Apartments on Sunday, April 9, 1978, said they saw him at the courtyard with his young son Sunday morning; that there was a "cookout" party that afternoon and that his son the victim and her daughter, child who was the victim's apartment the night of the were at the defendant played with Wilcynski's child, and inquired of some at the party as to Mrs. Wilcynski. There was some that he attempted to with Mrs. Wilcynski that she did not talk with him. William Dortch, of the United States Army, friend of appellant warrant officer of the Army) had an apartment at the Byrd Apartments. was visiting Captain Dortch on Sunday, 9. According to defendant's testimony, he was invited by Captain Dortch to stay for the cookout late that afternoon. *932 Appellant to the apartment complex on the evening of April As much of the testimony is merely cumulative as to undisputed no attempt will be made to particularize the testimony of all of the or to name all of them. Mrs. Napier, who had seen appellant in courtyard on Sunday afternoon, testified also that as she was groceries from her automobile on the of the murder, appellant approached her, picked up a bag of groceries and stated that he would help her take them up the stairs. She said, "I told him that was all right, that I could get them and he said, `Well, I understand how it is. awful hard to raise children alone, isn't and I told him that I wasn't alone. ". . . "I took the groceries in the house and he just came in with a sack of groceries and put them down and ". . "He was talking to me and I can't remember what he was saying, because I was in hurry and trying to get dinner ready before [her husband] came home. I was a few minutes late, and my little girl cut her finger. just came out of the bathroom, I hadn't put Vincent's things, and she got razor blade and cut her finger with it, and he picked up and took her in the bathroom and fixed it up. Then he was talking to her and I was putting away my groceries and stuff, and a while later Vincent came in." Mrs. Napier further testified that while defendant in the and before her returned, she was going and forth getting things out of the car and trying to get dinner ready" and that she noticed defendant drinking a bottle of beer. She said that when her arrived, a friend, Jeff Parker, was with and that defendant remained at the apartment and sat and talked with Mr. Napier and Jeff Parker. She did stay with three men but went into the bedroom. While the door of the bedroom was she heard her husband say, "Don't go in there, my wife is nursing the baby," and when she heard him say that she "just pulled my down and the baby down, and he came in there put his arm around me, he said, `Which way the bathroom.'" She the bedroom and went into the room where her husband was, and she assumed went into the bathroom, other evidence shows that he did. According to additional testimony of Mrs. Napier, was certain to time left the apartment of the Napiers'. She that he was still there at 10:00 o'clock, and that she had gone downstairs to get some out of the drier and when she returned he had gone. She said he must have gone "around 10:45, or that	374 SO.2d 929 (1979) RIchaRd GrAhaM V. STaTe. 4 Div. 685. CoURt Of CriminAl AppEals oF AlAbaMA. mARCh 27, 1979. reHeaRiNG deNiEd ApRIl 17, 1979. 930 dAViD C. eMERY, OZArk, FoR ApPeLLANt. WilLiAm J. bAXLeY, aTty. geN., aND edWIn L. YatEs, asSt. attY. geN., for ThE StatE, AppELLEE. LeIgh m. CLaRK, RetireD CIrcuIT judGe. APpeLLANT waS iNDiCTED FOr MurdER in tHe fiRsT DEGrEe oF "dOnna m. WiLcynski, bY sTABbING hEr With a knife or OTHEr ShArp iNSTrUmeNt." A jURY FounD Him gUIlty of MurDEr IN ThE fiRSt dEGREe AS chargEd aNd FIXed His punIsHMent AT LiFE ImpRIsONment. HE wAs SENteNCEd aCcoRDInGLY. aPpElLAnt suBMITS aS ThE ONLy IssUe on apPeaL: "whEtHer OR Not SuFfiCIENt eviDENcE wAs PreSEntED To sUstain ThE VeRdICt of FirsT degREe murDeR." We HAve nO dOUbT THAt theRe WaS boUnTiFuL evIDENCE tHAT the alleGED VIcTIM wAS BrutALLy sLAin, In THe mANNEr ChARgeD IN THE inDICTment, by SomE FIEnD, And thAT tHE HOMiCIDE waS MUrDeR in thE fiRsT dEgree. thE only CONtROVeRtED ISSUe ON tHe Trial WAS WhEtHER dEfeNDaNT-ApPeLlAnT cOMMiTtEd THE HOMicidE. tHE rECord IndIcatEs, aNd alMOsT ConCLUSiVELY shoWs, thAT THerE Was NO EyeWitNess TO the hOMICIDe OTHer tHan THe viCTIm And HER MurDeREr(s); that THey were the OnLY personS IN tHe apaRtMent of tHE VictIm At BYrD APartMENTS, ozArk, When sHe WaS kIlleD, beTWeen 11:00 P.m. aNd MIDniGht on APrIl 11, 1978. hER DeatH ReSUlTED fROm MulTiPle STaB wOundS in VarIoUS ParTs OF HEr BODy, FroM fROnT TO bacK And frOm HeAD to FEET. theY Were so EXteNSive AnD NUMerOUS ThAt tHE PhysICIAN Who examInED HEr bOdy WaS unabLe to NUMber tHeM. He grOuped tHem in a DEsCrIPTiOn OF TheM in HIS TesTIMOny as SHOWn By sIx cOMPLeTe pAgeS of the RecOrd. tHAt She wAs dead befORe or IMmediATely AftEr the CompLEtIOn OF tHE stabbInG OF hEr, THeRE caN HaRdly Be Any doUBT. hEr BoDY wAs noT DIScOVerEd UNTIl lAtE iN THe afternoOn ON APrIL 12, 1978, AFTer NeIGHbORIng apaRTmENt dWElLErs had BeComE COnceRnEd AbOuT HER, oNE of TheM NOTiNg thAT heR AutoMObILe WaS AT its ACcustOMED plACe aT tHe AParTMent, thAT She Was NOWHErE To be SEeN, tHAt HER apArtMEnT was LockED and tHat EfFORtS tO Get HER to THE dOOr wEre FUtIlE. ONE oF THEM calLed AN OffIcER and SoON THErEaFTEr A NUmBer oF tHEm arRived. upOn ARrIVAL OF The oFFICerS, a mASTEr key was oBtained, aNd ThEReby heR apArtmenT Was ENTerEd BY One OF The OFfIcErs, WHO foUnd heR body IN The BAthtuB. HE prOMPTly SecUred tHe scENe AND sEnT foR aN iNVEsTIGator OF The PoLIcE dePartmeNt of ozArK, 931 WHO sOoN ARriVed; HE lOoKed aT THE bODy IN tHe baThtUB, And tHeN obsERVED a tHrEe-yEaR-oLd cHIld iN thE BeDRoOm OF tHE APARtMEnT. he THEn cAllEd tHe CoRoNER And pERsOnnEL FROm the CRiMe LAboRAtorY aND SECUreD tHe BUilding FoR A ThoROugh AND AcCURATE oN-THe-PReMiSEs cRImInAL inVesTigaTIoN bY exPeRIenceD PeRSonnel, wHICH wAS ASSiDUousLY pErfOrmeD, cONTINuINg For aBoUt twO HoURS At ThE scENe. BlOod SAMPLES WeRE Obtained, lAtENT finGerpRInts weRe LIFtED, NuMERouS PHOTogRAphS weRE TAKEn, SamPles OF HaiR wEre GAtHerED FrOM The aPartMEnt aND oTher PHysICaL iteMS Of EvIDeNce WERE TAkeN iNtO cUsTODy. THe viCTim'S body in THE BaTHtuB wAs LYiNG on iTs bACk. AlL BuT The faCe WAS CovErEd wITH SheeTS AnD OthER CoveRInGS fRoM HEr Bed. upon remOvAL OF the bED COveriNGs, HER boDY wAs CompLetelY nUde. TheRE Was nO wATer In THE BaThtUB; The DRaiN tHEreOF waS cloSeD. ThE FLOoR oF The BATHrOOM wAs DrY, But The carpeT OR RuG iN THe haLL waS SOaKED wiTH WaTER, And The cArPEt or RugS iN The viCtiM's BEDrOoM aNd IN THE chilD'S BEdroom WERe weT. A Test MadE BY AN OfFicER SHOWEd thAt wateR fROm THe oVERFLowING BatHtUb WOUld RUN intO poRTIoNS OF thE floOr Of the APArTMeNt that WerE wEt. blooDStaINS weRe foUnd aT several plaCEs in THe APartmeNt, InCluding ThE MATtrEss aND THe BOx SPRInGs Of vICtiM'S bEd, tHE fLoOR, WallS, CuRtAINS, ANd On thE OuTSIde HAnDLe of ThE DOor To the ApArtmEnt. the FuRNiTUrE in tHE BEdrOOM aPPeARed tO Be rAnSAcKEd. tHe liviNG Room apPearEd to Be nOrMal. tHEre wERe pry markS oN The oUtsiDe of a WIndow TO tHE APARTMent. THE EViDeNCE, cONSIsTING oF tHE tEstIMoNY of twENTy-sevEn WItNesseS aND numERous Exhibits, is aLmOSt, If nOT EnTIReLy, FreE of SUBstantiaL coNfLICT. wItNESSeS FOR THE stATE MAY Be gROuPEd: (1) ThosE TEStIFying aS to CoNDUct Of deFeNDant WhILE at bYRD aPArtmenTS on sunDAy, apRIl 9, 1978, (2) ThOsE teStifyInG As tO hIS cOnDUcT At BYRD AparTMEnTs the nIghT oF The MuRDEr, apRiL 11, 1978, (3) A Few wHO heARD NOiSeS in thE vicTIm'S apartmENT BEtwEEN 11:00 P.M. and MIDniGHt, aPRIl 11, (4) exPeRt ANd LaY WitnesseS As to ThE cONdItiON anD CoNteNTs oF THe ViCtIm'S ApaRtMeNt aT The time hER BOdY waS DIsCOVERed thEReIn In tHe lATE AfTERnoOn Of aPrIL 12, (5) wiTNeSseS, chiEFlY eXPerT wiTNESSeS, aS To (A) tHE ConDITiOn OF tHe CorpSE, (b) FiNgErPrInTS, (c) saMplES Of blOOd fOuND iN the ViCTIM'S aPartmeNt, (D) SamPLeS OF hAiR from VICTIm's ApaRtmENT, (E) wHAT wAs reveAlEd bY A SEArch oF deFeNDAnt and hiS home, (f) stATeMeNTS mAde By dEfeNDAnT afTer tHe MUrDER ANd (g) WHaT WAS FounD in dEFenDaNt's AUtOmObilE thAt hE Was dRIVING thE niGHt Of tHe MurDer. EvIdEnce ON BeHALf oF dEfenDanT cONSistEd of defeNDaNt's owN TEsTImONy As to HiS cOnducT oN SUnDay, aPRIL 9, aNd oN tHe niGht of THE MuRDER AnD thE TESTimOny oF hIS wIFe, WhIcH pErTAINEd cHiEFly To HIS CoNDUCT pRIoR TO hIS GoinG to THE byrd aPartmeNts on aprIL 11 aND HIS ReTurn TO thEIr HOmE AftEr mIdnIGHt oF the NIgHt Of THe murdeR. sOme oF tHe WiTnesses for ThE sTATe Who TEsTIfieD As tO thE pREseNcE aNd cOnducT Of DeFeNdant at THE byrD APArtMEntS On SUndAy, apRIl 9, 1978, Said theY SAw him at THe coUrtyaRd WITH His youNG SON sunDay MORniNg; tHAt tHere WAs a "CoOKOut" PArty tHAT afTernOOn anD thAT dEfENDaNT and His soN AnD ThE vicTim And Her daUghter, THe chILd who waS iN THe viCTIM's aParTmenT THE NiGht OF THe muRDer, wERE At tHe pARtY; ThaT dEfendaNT PLayEd witH mRs. wiLcynSkI'S chIlD, And INquireD of soME AT THE ParTy aS To MRS. WILcynSki. theRe wAS SOMe eVIDENCe tHAT he AttemPtEd tO cOnVerSe wIth mRs. WILCYnSki But THaT ShE DId NOt TalK WITH HIM. cAPtAiN wiLLIaM DOrTCH, oF The uNiTeD states ARmY, a FRIEnd of apPellANT (A WArrant OFFicer oF ThE ARmY) Had an apartmENT AT the byRd apaRtMenTs. dEFeNDant was VisitiNg CApTain dorTCh ON SUNday, aPRil 9. accOrdiNG TO deFENdANt's TeStiMONy, hE WaS INvitED by CAPtAIn DortCH to Stay fOR THe CoOKOUt LATe that afTernOON. *932 ApPEllANT RETURnEd TO The ApArtmEnT coMPleX on The eveniNg of aprIl 11. as MUCH OF THe tEstimOny iS MErELY cuMulatiVE as TO UNdIsPuTeD facTs, No AtTeMPt WilL bE MADe To paRtIcuLAriZe tHE tEStiMOny of all of tHe INdiViDUaL wItNEsseS oR tO NAmE ALL of THEM. mrS. june naPier, whO haD seEN aPpElLANt iN THE coURTyard oN SunDaY AFTERNooN, teStIFIEd aLSo THAT As sHE wAS unlOAdInG gROcerIeS fROM hEr aUTOmoBIlE On ThE NigHt OF THe MurdEr, ApPelLaNT appRoaCHED hER, PicKED uP a bAG oF gRocerieS and stateD ThAt HE WOULD hElp her take tHEM up THe StaIRs. She SaiD, "I TolD him tHAt WaS ALL RigHt, ThAT i COuLD GET tHEM and he SAId, `well, i uNdErsTanD hOw iT IS. it'S awFuL HarD TO raIse cHILdreN aLOne, Isn't It?' and I told hIM THAT I wasN't AlonE. ". . . "I ToOK tHe GRoCeRIEs in THe HOUSE and He JUSt came in WiTh a saCk Of grOceRIEs aNd put ThEM DOWN And ". . . "hE waS TaLkiNG To ME AND i CAN't RemEmBer wHat HE WAS sAYiNG, BeCaUSe I was IN a HurRY AND tRyInG tO Get dinneR READY beFORe ViNCENT [her hUSBAnd] CAme HOmE. I WAs A feW MINutes Late, aND My LIttLe GIrL cut HEr FINgeR. sHe juST CamE OuT oF The bAThrooM, anD i hAdn't PUt UP viNCENT's THings, ANd She GOt A razor BLaDE aNd cut hER fiNGer witH it, aND HE PickED hEr UP aNd toOK HEr In THE BATHroom aND FixED iT UP. TheN hE waS JUSt talkinG tO hEr and I WaS PUTTiNG awAY mY GRoCeRIEs ANd stUFf, aND a WHIle LateR vInCEnt camE iN." MRS. NAPIer FuRtHeR testIfIEd tHat wHiLE DefenDant WaS In The apartMenT ANd BeFoRE HER HUsBAND rETURNed, sHE waS GoiNg "bAcK aND ForTh gEtTiNg tHINGS ouT oF tHe cAR anD TrYINg to GEt DiNNeR REadY" AND tHAT sHE nOTicED deFeNdaNt dRINking a botTlE of BEer. she sAID THaT wheN HER HuSbAND ARrIVed, a frIeND, jeff ParkEr, waS WITH Him aND THAT DEfEndAnT remainEd At ThE ApartmEnt aNd SaT dowN anD talKED With mr. NapiEr AnD JEFf parkER. she DId NOT StAY WITh tHe ThreE MEN But wenT INTO tHE BeDROOm. WHILe ThE DOor oF thE bedrOoM WaS CLosed, sHe hearD Her HusBANd SAy, "dOn't GO in THeRE, bECauSE My Wife iS NURSING The BaBY," AND WhEn she HeArd hIM SAY thAt sHE "jusT pULLeD mY BLOUSe dowN And Laid thE babY DOWn, aND hE cAMe IN tHere AND PUT hIS ARM aRoUNd ME, ANd He SAId, `WHicH waY IS THe BathroOM.'" she THEN LEFt thE BEDRoom aNd weNt INtO tHE rOOM whERE heR huSBaND waS, And ShE asSuMeD dEfENdant WENT INtO the BAThroOm, wHICH OTHeR EViDENCE sHoWS That he did. ACCoRDIng tO aDDItiONAl teSTimony oF mRS. naPiEr, she was NOT ceRTaiN aS TO tHE tIme defEndant LefT THE AParTment Of thE naPIERS'. shE reMemBeRed THat hE WAs sTill there aT 10:00 o'clock, aNd That She hAd GONe doWnstAiRs TO geT sOMe CLOTHEs oUt of tHe DrIEr AnD WHEn sHe returNed He hAd GOne. sHe SAID hE muST hAvE GoNE "AroUND 10:45, Or SOmethINg liKE THat	374 So.2d929 (1979) Richard GRAHAM v. STATE. 4 Div. 685. Courtof Criminal Appeals ofAlabama. March27, 1979.Rehearing Denied April 17, 1979. 930 David C. Emery, Ozark, for appellant. William J. Baxley, Atty.Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee. LEIGH M.CLARK, Retired Circuit Judge. Appellant was indictedfor murder in the first degree of "Donna M. Wilcynski, by stabbing her with a knife orothersharp instrument." A jury foundhim guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. He was sentenced accordingly. Appellant submits as the only issue on appeal: "Whether or not sufficient evidence was presented to sustain the verdict of first degree murder."We have no doubt that there wasbountiful evidence that the alleged victim was brutally slain, in the manner charged in the indictment, by some fiend, and that the homicide was murder in the first degree. The only controverted issue on the trial was whether defendant-appellant committed the homicide. The record indicates, and almost conclusively shows, that there was no eyewitness to the homicide other thanthe victim and hermurderer(s); that they were the only persons in the apartment of the victim at ByrdApartments, Ozark, whenshe was killed, between 11:00 P.M. and midnight on April11, 1978. Her death resulted from multiple stab wounds invarious parts of her body, from front to back and from headto feet. They were so extensive and numerous that the physician who examined her body was unable to number them. He grouped them in a description of them in his testimonyas shown by sixcomplete pages of the record. That she was dead before or immediately after thecompletion ofthe stabbing of her, there can hardly be any doubt. Her bodywas not discovered until latein the afternoon on April 12, 1978,after neighboring apartment dwellers had become concerned abouther, one of them noting that herautomobilewas at its accustomed place atthe apartment, thatshe was nowhere to beseen, that her apartment was locked and that efforts to get her to thedoor were futile. Oneofthem called anofficer andsoon thereafteranumber of them arrived. Upon arrival of the officers,a masterkey was obtained, and therebyher apartment wasentered by one of the officers, who foundher body in the bathtub. He promptly secured thescene and sent foran investigator of the Police Department of Ozark, 931 who soon arrived; he looked at the bodyin the bathtub, and then observed a three-year-oldchild in the bedroom of the apartment. He thencalled the coroner and personnel from the crime laboratory and secured the building for a thorough and accurateon-the-premises criminal investigation byexperienced personnel, whichwas assiduouslyperformed, continuing for about two hours at the scene. Blood samples were obtained, latent fingerprints were lifted, numerous photographs were taken, samples of hair were gathered from the apartment and other physical items ofevidence were taken into custody. The victim's body in the bathtub waslyingon itsback. Allbut the face was covered with sheetsand other coverings fromher bed. Upon removal of the bed coverings, her body was completely nude. Therewas no water in the bathtub; the drain thereofwasclosed.The floor of the bathroom was dry, but the carpet or rug inthehall was soaked with water, and the carpet or rugs in thevictim's bedroom and inthe child's bedroom were wet. A test made by an officershowed that water from the overflowingbathtub would run into portions of the floor ofthe apartment that were wet. Bloodstainswere found at severalplaces in the apartment, including the mattressand the boxsprings of victim's bed, the floor, walls, curtains, and onthe outside handle ofthe door to the apartment. The furniture in the bedroom appeared to be ransacked. Theliving room appearedto be normal. There were pry marks onthe outside of a window to the apartment.Theevidence, consisting of the testimonyof twenty-seven witnesses and numerous exhibits, is almost,if not entirely, free ofsubstantial conflict. Witnesses for the State may be grouped: (1) Those testifying as to conductof defendant while at Byrd Apartments on Sunday, April 9, 1978, (2) Those testifying as to his conduct at Byrd Apartments the nightof the murder, April 11, 1978,(3) A fewwho heardnoises in the victim's apartment between 11:00 P.M. and midnight, April 11,(4) Expert and lay witnesses as tothe condition and contents of thevictim'sapartment at the time her body wasdiscovered therein in the late afternoon of April 12, (5) Witnesses, chieflyexpert witnesses, as to(a) the condition of the corpse, (b) fingerprints, (c) samples of bloodfound in the victim's apartment, (d) samples of hair from victim's apartment, (e) what was revealed by asearch of defendant and his home, (f) statements made by defendant after the murder and (g) what wasfound in defendant'sautomobile that he was driving the night ofthe murder. Evidence on behalf of defendant consisted of defendant's own testimonyas to hisconduct on Sunday, April 9, and on thenight of the murder and the testimonyof his wife, which pertainedchiefly to hisconduct prior to his goingto the Byrd Apartments on April 11 and his return to their home after midnight ofthe night of the murder. Some of the witnesses for the State who testified asto the presence and conduct of defendant at the Byrd Apartments on Sunday, April 9, 1978, said they sawhim at the courtyard with hisyoung son Sunday morning; that there was a "cookout" party that afternoon andthat defendant and his son and the victimand her daughter, the child who wasin the victim's apartmentthe night ofthe murder, were at the party; that defendant played with Mrs. Wilcynski'schild, and inquiredof some at the party as to Mrs. Wilcynski. Therewas someevidencethat he attempted to converse with Mrs. Wilcynski butthat she did nottalkwith him. Captain William Dortch, of theUnited StatesArmy, a friend of appellant (a warrant officer of the Army) had an apartment at the Byrd Apartments. Defendant was visiting Captain Dortch on Sunday,April 9. According to defendant's testimony, he was invited by Captain Dortch to stay for the cookout late that afternoon. *932 Appellant returnedto the apartment complex on the evening of April 11. As much of the testimonyis merely cumulative as to undisputed facts, no attempt willbemade to particularize the testimony of all ofthe individual witnesses or to name all of them. Mrs.June Napier, who had seen appellant in the courtyardon Sunday afternoon, testified also that as she was unloadinggroceriesfrom her automobile on the night of the murder,appellant approachedher,picked up a bag of groceries andstated that he would help her take them up the stairs. She said, "I told him that was all right, that I could get them and he said, `Well, I understand how it is. It's awful hardto raise children alone, isn't it?' and I toldhim that I wasn't alone. ". .. "I took the groceries in the house and he just came in witha sack of groceries and put themdown and ". . . "Hewastalking to me andI can't remember what he was saying, because I was in a hurry and tryingto get dinnerready before Vincent [her husband] came home. Iwas a few minutes late, and my little girl cut her finger. She just came out of thebathroom, andIhadn't put up Vincent's things, and she got a razor blade and cut her fingerwith it, and he picked her up andtook her in the bathroom and fixed it up. Then he was just talking to her and I was putting away my groceries and stuff, and awhile laterVincent came in." Mrs. Napier further testified thatwhile defendant was in the apartment and beforeher husband returned, she was going "back and forth getting things out of the car and tryingto get dinner ready" and that she noticed defendant drinking a bottle of beer. She said that when her husband arrived,a friend, Jeff Parker, waswith him and that defendant remained at the apartment and sat downand talked withMr. Napier and Jeff Parker. She did not staywith the threemen but went into thebedroom. While the door of the bedroom was closed, she heard her husband say,"Don't go in there, because mywife is nursing the baby," and when sheheard him say that she "justpulled my blouse down and laid the baby down, andhe came in there and put hisarm around me, andhesaid, `Which wayis the bathroom.'" She then left the bedroomand went into theroom where herhusband was, and she assumed defendant went into the bathroom,which other evidence shows that he did. According to additional testimony of Mrs. Napier,she was not certain as tothe timedefendant left theapartment of the Napiers'. She remembered that he was still there at 10:00 o'clock, and that she had gone downstairs to get some clothes out of the drier and when she returned he had gone. Shesaid he must have gone"around 10:45, or somethinglikethat	374 So.2d 929 (1979) Richard GRAHAM v. STATE. 4 Div. _685._ Court of Criminal Appeals of Alabama. March 27, _1979._ Rehearing Denied April _17,_ 1979. 930 David C. Emery, Ozark, for appellant. William _J._ Baxley, _Atty._ Gen., and Edwin L. Yates, Asst. _Atty._ _Gen.,_ for the State, appellee. LEIGH M. CLARK, Retired _Circuit_ Judge. Appellant was indicted for _murder_ _in_ _the_ _first_ degree of "Donna M. Wilcynski, by stabbing her _with_ a knife _or_ _other_ _sharp_ instrument." A jury found him guilty of _murder_ _in_ _the_ first degree as charged and fixed his _punishment_ at life imprisonment. He _was_ sentenced accordingly. Appellant submits as the only issue on appeal: "Whether or not _sufficient_ evidence was presented to sustain the _verdict_ of _first_ degree _murder."_ _We_ _have_ no doubt that there was bountiful evidence that the alleged victim was brutally slain, in the manner _charged_ in the indictment, by some fiend, and that the homicide was murder in the first degree. _The_ only controverted issue _on_ the _trial_ was _whether_ defendant-appellant committed the homicide. _The_ record indicates, _and_ almost conclusively shows, that _there_ was no eyewitness to the homicide other _than_ _the_ _victim_ and her murderer(s); that they were the only _persons_ in the _apartment_ of the victim _at_ Byrd Apartments, Ozark, _when_ she was _killed,_ between 11:00 P.M. and midnight on April _11,_ 1978. Her death resulted from multiple stab wounds in various _parts_ of her body, from _front_ _to_ back and _from_ head to feet. They were _so_ extensive and _numerous_ that the physician who examined her body was unable to _number_ them. He grouped them in _a_ description of them in his testimony as shown by six complete pages of the record. _That_ she _was_ _dead_ before or immediately after the completion of the stabbing of _her,_ there _can_ hardly be _any_ doubt. Her _body_ _was_ not discovered until late in _the_ _afternoon_ on April 12, _1978,_ _after_ neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed _place_ at the _apartment,_ _that_ she was nowhere _to_ be seen, that her apartment was locked and that efforts _to_ get her _to_ _the_ door were futile. One of them called an officer and soon thereafter _a_ number of them arrived. Upon arrival of the officers, a _master_ _key_ was obtained, and thereby her apartment was entered _by_ _one_ of the officers, _who_ found her body in the bathtub. He promptly secured _the_ scene and sent for an _investigator_ of _the_ Police Department _of_ Ozark, 931 who soon arrived; he looked at the _body_ in _the_ bathtub, and _then_ _observed_ a _three-year-old_ child _in_ the bedroom _of_ the apartment. He _then_ _called_ the coroner _and_ _personnel_ _from_ the crime laboratory _and_ _secured_ _the_ building for a _thorough_ and _accurate_ on-the-premises criminal investigation by _experienced_ personnel, _which_ was assiduously performed, continuing for about _two_ hours at the scene. Blood samples were obtained, latent fingerprints were lifted, numerous _photographs_ were _taken,_ samples of hair were gathered from the apartment and _other_ physical items of _evidence_ were taken into custody. The victim's _body_ in the bathtub _was_ lying on its back. _All_ but _the_ face was _covered_ with sheets and _other_ coverings from _her_ bed. Upon removal of the bed coverings, her body was completely nude. There _was_ no water in the bathtub; the drain thereof was _closed._ The floor of the bathroom was dry, but the carpet or rug in the _hall_ was soaked with water, and the _carpet_ or rugs in the victim's bedroom and _in_ the child's bedroom were wet. A test made by an _officer_ showed that _water_ from the overflowing bathtub _would_ run into portions _of_ _the_ _floor_ _of_ the apartment that were wet. Bloodstains _were_ found at several places in the apartment, _including_ _the_ mattress and the box springs of victim's bed, the _floor,_ walls, _curtains,_ and _on_ the outside handle of the door _to_ _the_ apartment. The furniture in the bedroom appeared to be ransacked. _The_ living room appeared to be normal. _There_ were pry marks on the outside of _a_ window to the apartment. The evidence, consisting of the testimony of _twenty-seven_ witnesses and numerous exhibits, is almost, if not entirely, free of _substantial_ conflict. Witnesses for _the_ State may be _grouped:_ (1) Those testifying as to conduct of defendant while at Byrd Apartments on _Sunday,_ April 9, 1978, (2) Those testifying as to his conduct at Byrd _Apartments_ _the_ night of _the_ murder, _April_ 11, 1978, (3) A _few_ who heard noises _in_ the _victim's_ apartment _between_ 11:00 P.M. and midnight, April 11, (4) Expert and lay witnesses as to _the_ condition _and_ contents of the victim's apartment at the time her body _was_ discovered therein in the late _afternoon_ of April 12, (5) Witnesses, chiefly expert witnesses, as to (a) the condition _of_ the _corpse,_ (b) fingerprints, (c) samples of blood found in _the_ _victim's_ apartment, (d) samples of hair from _victim's_ apartment, (e) what was revealed by a search of defendant and his home, (f) _statements_ made by defendant after the murder and (g) what was found in defendant's automobile that he _was_ _driving_ the night of the murder. Evidence on behalf _of_ defendant consisted _of_ _defendant's_ own testimony as _to_ his conduct on _Sunday,_ _April_ 9, _and_ on the night of _the_ murder _and_ the testimony of his _wife,_ which pertained chiefly _to_ his conduct prior to _his_ going to the _Byrd_ Apartments on April 11 and his return to _their_ home after midnight of the night of the murder. Some _of_ _the_ witnesses for the State who testified as to the presence _and_ conduct of defendant at the Byrd Apartments on _Sunday,_ April _9,_ 1978, said they saw him at the courtyard with his young _son_ Sunday morning; _that_ there was a "cookout" _party_ _that_ afternoon and that defendant and his son _and_ the victim and her _daughter,_ the _child_ who was in the victim's _apartment_ the _night_ of _the_ murder, were at the party; _that_ defendant played with _Mrs._ Wilcynski's child, and inquired _of_ some _at_ _the_ party as to _Mrs._ Wilcynski. There _was_ some evidence that he attempted _to_ _converse_ with Mrs. Wilcynski but that _she_ _did_ not talk _with_ him. Captain _William_ Dortch, of _the_ United States Army, a friend of appellant (a warrant officer of the Army) had an _apartment_ at the Byrd Apartments. Defendant _was_ visiting Captain Dortch on Sunday, April 9. According _to_ _defendant's_ _testimony,_ he was invited by _Captain_ Dortch to _stay_ for the cookout late that afternoon. *932 _Appellant_ returned to the apartment _complex_ on the _evening_ of April _11._ As much _of_ the testimony is merely cumulative as to undisputed facts, _no_ attempt will be made to _particularize_ _the_ testimony of all of _the_ _individual_ witnesses or to name all _of_ them. _Mrs._ June Napier, who _had_ _seen_ appellant in the _courtyard_ on Sunday afternoon, testified also that as _she_ was unloading groceries from her automobile on the night of the murder, appellant approached her, picked _up_ a _bag_ _of_ groceries and stated that _he_ _would_ help her take them up the _stairs._ _She_ said, "I _told_ him that was all right, that I _could_ get them and he said, `Well, I understand _how_ it is. It's awful hard to raise children alone, isn't it?' _and_ _I_ told _him_ that I wasn't alone. ". . . "I _took_ the groceries in the house _and_ he just came in with a _sack_ _of_ groceries and put them down and ". . . "He was talking _to_ _me_ and I can't remember _what_ he was saying, because I _was_ in a hurry and trying to get dinner ready _before_ Vincent [her husband] came home. I was a few minutes late, and my little girl cut _her_ finger. _She_ just _came_ out of _the_ bathroom, _and_ I hadn't put up Vincent's things, and she got a _razor_ _blade_ and cut _her_ _finger_ with it, and _he_ picked her up _and_ took her _in_ the bathroom _and_ fixed _it_ up. Then he was just _talking_ _to_ her and I was putting away my groceries _and_ stuff, and a _while_ later Vincent came _in."_ Mrs. Napier _further_ testified _that_ while defendant was _in_ the apartment and _before_ her husband _returned,_ she was _going_ "back _and_ forth _getting_ things out _of_ the car and trying to _get_ dinner ready" and that she _noticed_ defendant _drinking_ a bottle of beer. _She_ said that when her _husband_ arrived, a friend, _Jeff_ Parker, _was_ with him _and_ that defendant remained _at_ the _apartment_ _and_ sat down and talked with Mr. Napier and Jeff Parker. She did not stay with the three men _but_ went into the bedroom. While the door _of_ the _bedroom_ _was_ closed, she heard her husband _say,_ "Don't go in there, because my wife is nursing the baby," and when she heard him say that she "just _pulled_ my blouse down and laid the baby down, and he came _in_ _there_ and put _his_ arm around me, and _he_ _said,_ `Which way is the bathroom.'" She then left the bedroom and went _into_ the _room_ where her husband was, and _she_ assumed _defendant_ went into the bathroom, which other evidence shows that _he_ did. According to additional testimony of Mrs. Napier, she was _not_ certain as to the _time_ defendant _left_ the _apartment_ of the Napiers'. She remembered _that_ _he_ was still there at 10:00 o'clock, and that _she_ had gone downstairs _to_ get some clothes out of the drier and when she returned he had gone. She said he must have gone _"around_ 10:45, or _something_ like _that_
299 F.Supp.2d 166 (2004) Timothy MULDROW, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent. No. 02-CV-6080L. United States District Court, W.D. New York. February 3, 2004. 167 168 Timothy Muldrow, Attica, NY, pro se. Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Respondent. DECISION AND ORDER LARIMER, District Judge. INTRODUCTION Petitioner Timothy Muldrow ("Muldrow"), filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court of two counts of second degree murder. For the reasons set forth below, Muldrow's § 2254 petition is denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On December 28, 1993, Muldrow participated in the execution-style murder of two people in their home. There was a third victim who survived after being shot in the face. The motivation for the killings was to silence witnesses to previous murders committed by a drug-dealing associate of Muldrow named Jerold Usher ("Usher"). Two days after the shootings, the police seized five guns and other contraband from Muldrow's apartment. Testing revealed that two of these guns fired the bullets that killed one of the victims, and bullets test-fired from a third gun were consistent with those used to shoot the other two victims. Muldrow was indicted jointly with two of the three co-defendants, Raymond Stubbs ("Stubbs") and Anthony McGee ("McGee"), on two counts of murder in the second degree (New York Penal Law ("P.L.") §§ 125.25(1) and 20.00); two counts of felony murder (P.L. §§ 125.25(3) and 20.00); one count of attempted murder in the second degree (P.L. §§ 125.25, 110.00, and 20.00); and one count of assault (P.L. §§ 120.10 and 20.00). Muldrow, Stubbs and Anthony were tried jointly. The fourth perpetrator, Thearthur Grimes ("Grimes"), was tried separately because he confessed to the police that he was present when the murders were committed and implicated Muldrow and McGee as the gunmen. After a jury trial in Monroe County Court, Muldrow was found guilty of two counts of felony murder and sentenced to indeterminate consecutive terms of imprisonment of 25 years to life on each count. Muldrow appealed to the Appellate Division, Fourth Department, which unanimously affirmed his conviction on June 16, 2000. The Court of Appeals denied leave to appeal on September 20, 2000. This federal habeas corpus petition followed. DISCUSSION Muldrow asserts two grounds for entitlement to habeas relief, both of which stem from his appellate counsel's alleged incompetence.[1] First, Muldrow faults counsel for failing to challenge on direct appeal the purported inconsistencies in the verdicts at his trial: McGee was acquitted of all counts of the indictment, Stubbs was convicted on all counts of the indictment, and Muldrow was convicted on the felony murder counts only. Muldrow claims that each co-defendant was required to be acquitted or convicted of the same counts of the indictment in order for the verdicts to be consistent. 169 A claim for ineffective assistance of appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347, 124 L.Ed.2d 256 (1993)). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001). Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. 746 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (citations omitted). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones, 463 U.S. at 754, 103 S.Ct. 3308; see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. Muldrow's appellate counsel raised three important issues in a thorough appellate brief to the Fourth Department, crafting persuasive arguments as to why the consent to search Muldrow's apartment given by his brother was invalid and why the trial court abused its discretion in allowing David Crutcher ("Crutcher"), who suffered from schizophrenia, to testify at trial. These two issues in particular were of the utmost importance to Muldrow's case, since the ballistics evidence from the guns seized from his apartment, together with Crutcher's testimony, strongly linked him to the murder. In contrast, the repugnant verdict issue urged by Muldrow in this habeas petition was neither significant nor promising on appeal, and it was entirely reasonable for Muldrow's appellate counsel to omit it. Because Muldrow has failed to demonstrate that his appellate counsel's performance was unreasonable, he cannot meet the first prong of the standard by which ineffective assistance claims are judged. However, even if he could establish that his appellate counsel's lawyering was deficient, Muldrow has not demonstrated that he was prejudiced by the deficiency. Because Muldrow and his codefendants were indicted and charged individually for the crimes of murder, as well as in accordance with accomplice liability pursuant to P.L. § 20.00,[2] it is clear that there were, in fact, no inconsistencies in the verdicts. Respondent correctly notes that the jury had to assess the evidence against each of three defendants 170 and make a separate determination of guilt as to each. The fact that the jury convicted two defendants and acquitted a third is of no legal significance. The jury may simply have believed that the evidence was stronger against the two defendants it found guilty, and not convincing as to the defendant (McGee) who was acquitted. Thus, the issue now raised by Muldrow is not persuasive, and he cannot establish prejudice from his appellate counsel's neglect in pursuing the issue because there was no "reasonable probability" that the omitted issue would have succeeded even had it been argued on appeal. See Torres v. Irvin, 33 F.Supp.2d 257, 267 (S.D.N.Y.1998) (even if petitioner could establish that appellate counsel's advocacy was deficient, he suffered no prejudice because no "reasonable probability" that the omitted claims would have succeeded) (citing Mayo, 13 F.3d at 534); Angel v. Garvin, 2001 WL 327150 at *10 (S.D.N.Y. Apr.3, 2001) (finding that petitioner could not establish prejudice as a result of appellate counsel's failure to raise non-meritorious claim based on insufficiency of the evidence). Moreover, an allegedly inconsistent verdict does not present a constitutional violation. Therefore, such a claim is not even cognizable on habeas review. The Supreme Court explained in United States v. Powell that where truly inconsistent verdicts have been reached, the most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.... It is equally possible that the jury, convinced of guilt, properly reached its conclusion ... then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense. 469 U.S. 57, 58, 64-65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (internal quotations and citation omitted); see also Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("Inconsistency in a verdict is not a sufficient reason for setting it aside."); United	299 f. h. 2d 166 ( 2004 ) william muldrow, petitioner, v. victor herbert, superintendent, attica correctional facility, respondent. no. 02 - cv - 6080l. united states district courthouse, w. d. new york. february 3, 2004. * 167 * 168 timothy muldrow, attica, ny, pro se. loretta s. courtney, monroe county assistant attorney ' s office, rochester, ny, for sentencing. decision and order larimer, district judge. introduction petitioner timothy muldrow ( " muldrow " ), filed this petition pro se for a writ of habeas corpus pursuant to 28 u. s. c. § 2254 challenging his conviction before monroe county court of fifteen counts of second degree murder. for the reasons set forth below, muldrow ' s § 2254 petition is denied. factual background and procedural history on january 28, 1993, muldrow participated in the execution - style murder of two people in their home. there was a third victim who survived after being shot in the face. the motivation for the killings was to silence witnesses to previous murders committed by a drug - dealing associate of muldrow named jerold usher ( " usher " ). two days after the shootings, the police seized five guns and other contraband from muldrow ' s apartment. testing revealed that two of these guns fired the bullets that killed one of the victims, and bullets test - fired from that third gun were consistent with those claiming to shoot the other two victims. muldrow was indicted jointly with two of the three co - defendants, raymond stubbs ( " stubbs " ) and anthony mcgee ( " mcgee " ), on two counts of murder in the second degree ( new york penal law ( " p. l. " ) § § 125. 25 ( 1 ) and 20. 00 ) ; two counts of felony murder ( p. l. § § 125. 25 ( 3 ) and 20. 00 ) ; one count of attempted murder in the second degree ( p. l. § § 125. 25, 110. 00, and 20. 00 ) ; and one count of assault ( p. l. § § 120. 10 and 20. 00 ). muldrow, stubbs and anthony were tried jointly. the fourth perpetrator, thearthur grimes ( " grimes " ), was tried separately because he confessed to the police that he was present when the murders were committed and implicated muldrow and mcgee as the gunmen. after a jury trial in monroe county court, muldrow was found guilty of two counts of felony murder and sentenced to indeterminate consecutive terms of imprisonment of 25 years to life on each count. muldrow appealed to the appellate division, fourth department, which unanimously affirmed his conviction on june 16, 2000. the court of appeals denied leave to appeal on september 20, 2000. this federal habeas corpus petition followed. discussion muldrow asserts two grounds for entitlement to habeas relief, both of which stem from his appellate counsel ' s alleged incompetence. [ 1 ] first, muldrow faults counsel for failing to challenge on direct appeal the purported inconsistencies in the verdicts at his trial : mcgee was acquitted of all counts of the indictment, stubbs was convicted on all counts of the indictment, and muldrow was convicted on the felony murder counts only. muldrow claims that each co - defendant was required to be acquitted or convicted of the same counts of the indictment in order for the verdicts to be consistent. * 169 a claim for ineffective assistance of appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. mayo v. henderson, 13 f. 3d 528, 533 ( 2d cir. ), cert. denied, 513 u. s. 820, 115 s. ct. 81, 130 l. ed. 2d 35 ( 1994 ) ( citing claudio v. scully, 982 f. 2d 798, 803 ( 2d cir. 1992 ), cert. denied, 508 u. s. 912, 113 s. ct. 2347, 124 l. ed. 2d 256 ( 1993 ) ). a petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel ' s deficient performance, there was a reasonable probability that defendant ' s appeal would have been successful. mayo, 13 f. 3d at 533 - 34 ; see also smith v. robbins, 528 u. s. 259, 285, 120 s. ct. 746, 145 l. ed. 2d 756 ( 2000 ) ; aparicio v. artuz, 269 f. 3d 78, 95 ( 2d cir. 2001 ). appellate counsel " need not ( and should not ) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. " smith v. robbins, 528 u. s. at 288, 120 s. ct. 746 ( citing jones v. barnes, 463 u. s. 745, 750 - 54, 103 s. ct. 3308, 77 l. ed. 2d 987 ( 1983 ) ) ; accord, e. g., sellan v. kuhlman, 261 f. 3d at 317 ( " this process of ` winnowing out weaker arguments on appeal and focusing on ' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. " ) ( citations omitted ). the habeas court should not second - guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. jones, 463 u. s. at 754, 103 s. ct. 3308 ; see also jackson v. leonardo, 162 f. 3d 81, 85 ( 2d cir. 1998 ). thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel " omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. " mayo, 13 f. 3d at 533. muldrow ' s appellate counsel raised three important issues in a thorough appellate brief to the fourth department, crafting persuasive arguments as to why the consent to search muldrow ' s apartment given by his brother was invalid and why the trial court abused its discretion in allowing david crutcher ( " crutcher " ), who suffered from schizophrenia, to testify at trial. these two issues in particular were of the utmost importance to muldrow ' s case, since the ballistics evidence from the guns seized from his apartment, together with crutcher ' s testimony, strongly linked him to the murder. in contrast, the repugnant verdict issue urged by muldrow in this habeas petition was neither significant nor promising on appeal, and it was entirely reasonable for muldrow ' s appellate counsel to omit it. because muldrow has failed to demonstrate that his appellate counsel ' s performance was unreasonable, he cannot meet the first prong of the standard by which ineffective assistance claims are judged. however, even if he could establish that his appellate counsel ' s lawyering was deficient, muldrow has not demonstrated that he was prejudiced by the deficiency. because muldrow and his codefendants were indicted and charged individually for the crimes of murder, as well as in accordance with accomplice liability pursuant to p. l. § 20. 00, [ 2 ] it is clear that there were, in fact, no inconsistencies in the verdicts. respondent correctly notes that the jury had to assess the evidence against each of three defendants * 170 and make a separate determination of guilt as to each. the fact that the jury convicted two defendants and acquitted a third is of no legal significance. the jury may simply have believed that the evidence was stronger against the two defendants it found guilty, and not convincing as to the defendant ( mcgee ) who was acquitted. thus, the issue now raised by muldrow is not persuasive, and he cannot establish prejudice from his appellate counsel ' s neglect in pursuing the issue because there was no " reasonable probability " that the omitted issue would have succeeded even had it been argued on appeal. see torres v. irvin, 33 f. supp. 2d 257, 267 ( s. d. n. y. 1998 ) ( even if petitioner could establish that appellate counsel ' s advocacy was deficient, he suffered no prejudice because no " reasonable probability " that the omitted claims would have succeeded ) ( citing mayo, 13 f. 3d at 534 ) ; angel v. garvin, 2001 wl 327150 at * 10 ( s. d. n. y. apr. 3, 2001 ) ( finding that petitioner could not establish prejudice as a result of appellate counsel ' s failure to raise non - meritorious claim based on insufficiency of the evidence ). moreover, an allegedly inconsistent verdict does not present a constitutional violation. therefore, such a claim is not even cognizable on habeas review. the supreme court explained in united states v. powell that where truly inconsistent verdicts have been reached, the most that can be said... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant ' s guilt.... it is equally possible that the jury, convinced of guilt, properly reached its conclusion... then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [ other ] offense. 469 u. s. 57, 58, 64 - 65, 105 s. ct. 471, 83 l. ed. 2d 461 ( 1984 ) ( internal quotations and citation omitted ) ; see also harris v. rivera, 454 u. s. 339, 345, 102 s. ct. 460, 70 l. ed. 2d 530 ( 1981 ) ( " inconsistency in a verdict is not a sufficient reason for setting it aside. " ) ; united	299 F. Supp. 2d 166 (2004) Timothy MULDROW, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent. No. 02 - CV - 6080L. United States District Court, W. D. New York. February 3, 2004. * 167 * 168 Timothy Muldrow, Attica, NY, pro se. Loretta S. Courtney, Monroe County District Attorney ' s Office, Rochester, NY, for Respondent. DECISION AND ORDER LARIMER, District Judge. INTRODUCTION Petitioner Timothy Muldrow (" Muldrow " ), filed this petition pro se for a writ of habeas corpus pursuant to 28 U. S. C. § 2254 challenging his conviction in Monroe County Court of two counts of second degree murder. For the reasons set forth below, Muldrow ' s § 2254 petition is denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On DecemFWr 28, 1993, Muldrow participated in the execution - style murder of two people in their home. There was a third victim who survived after being shot in the face. The motivation for the killings was to silence witnesses to previous murders committed by a drug - dealing associate of Muldrow named Jerold Usher (" Usher " ). Two days after the shootings, the police selzev five guns and other coJtraHand from Muldrow ' s apartment. Testing revealed that two of these guns fired the bullets that killed one of the victims, and bullets test - fired from a third gun were consistent with those used to shoot the other two victims. Muldrow was indicted jointly with two of the three co - defendants, Raymond Stubbs (" Stubbs ") and Anthony McGee (" McGee " ), on two counts of murder in the second degree (New York Penal Law (" P. L. ") § § 125. 25 (1) and 20. 00 ); two counts of fel0By murder (P. L. § § 125. 25 (3) and 20. 00 ); one count of attempted murder in the second degree (P. L. § § 125. 25, 110. 00, and 20. 00 ); and one count of assault (P. L. § § 120. 10 and 20. 00 ). Muldrow, Stubbs and Anthony were tried jointly. The fourth perpetrator, Thearthur Grimes (" Grimes " ), was tried separately because he confessed to the police that he was present when the murders were committed and implicated Muldrow and McGee as the gunmen. After a jury trial in Monroe County Court, Muldrow was found guilty of two counts of felony murder and sentenced to indeterminate consecutive terms of imprisonment of 25 years to life on each count. M8:drow appealed to the Appellate Division, Fourth Department, which unanimously affirmed his conviction on June 16, q000. The Court of Appeals denied leave to appeal on September 20, 2000. This fedefa. habeas corpus petition followed. DISCUSSION Muldrow asserts two grounds for entitlement to habeas relief, both of which stem from his appellate counsel ' s alleged incompetence. [1] First, Muldrow faults counsel for failing to challenge on direct appeal the purported inconsistencies in the verdicts at his trial: McGee was acquitted of all counts of the indictment, Stubbs was convicted on all counts of the indictment, and Muldrow was convicted on the felony murder counts only. Muldrow claims that each co - defendant was required to be acquitted or convicted of the same counts of the indictment in order for the verdicts to be consistent. * 169 A claim for ineffective assistance of appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F. 3d 528, 533 (2d Cir. ), cert. denied, 513 U. S. 820, 115 S. Ct. 81, 130 L. Ed. 2d 35 (1994) (citing Claudio v. Scully, 982 F. 2d 798, 803 (2d Cir. 1992 ), cert. denied, 508 U. S. 912, 113 S. Ct. 2347, 124 L. Ed. 2d 256 (1993) ). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel ' s refocient performance, there was a reasonable probability that defendant ' s appeal would have been successful. Mayo, 13 F. 3d at 533 - 34; see also Smith v. Robbins, 528 U. S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000 ); Aparicio v. Artuz, 269 F. 3d 78, 95 (2d Cir. 2001 ). Appellate counsel " need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. " Smith v. Robbins, 528 U. S. at 288, 120 S. Ct. 746 (citing Jones v. Barnes, 463 U. S. 745, 750 - 54, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) ); accord, e. g. , Sellan v. Kuhlman, 261 F. 3d at 317 (" This process of ` winnowing out weaker arguments on appeal and focusing on ' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. ") (citations omitted ). The habeas court should not second - guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones, 463 U. S. at 754, 103 S. Ct. 3308; see also Jackson v. Leonardo, 162 F. 3d 81, 85 (2d Cir. 1998 ). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel " omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. " Mayo, 13 F. 3d at 533. Muldrow ' s appellate counsel raised three important issues in a thorough appellate brief to the Fourth Department, crafting persuasive arguments as to why the consent to search Muldrow ' s apartment given by his brother was invalid and why the trial court abused its discretion in allowing David Crutcher (" Crutcher " ), who suffered from schizophrenia, to testify at trial. These two issues in particular were of the utmost importance to Muldrow ' s case, since the ballistics evidence from the guns seized from his apartment, together with Crutcher ' s testimony, strongly linked him to the murder. In contrast, the repugnant verdict issue urged by Muldrow in this habeas petition was neither significant nor promising on appeal, and it was entirely reasonable for Muldrow ' s appellate counsel to omit it. Because Muldrow has failed to demonstrate that his appellate counsel ' s performance was unreasonable, he cannot meet the first prong of the standard by which ineffective assistance claims are judged. However, even if he could establish that his appellate counsel ' s lawyering was deficient, Muldrow has not demonstrated that he was prejudiced by the deficiency. Because Muldrow and his codefendants were indicted and charged individually for the crimes of murder, as well as in acc(rdQnce with accomplice liability pursuant to P. L. § 20. 00, [2] it is clear that there were, in fact, no inconsistencies in the verdicts. Respondent correctly notes that the jury had to assess the evidence against each of three defendants * 170 and make a separate determination of guilt as to each. The fact that the jury convicted two defendants and acquitted a third is of no legal significance. The jury may simply have believed that the evidence was stronger against the two defendants it found guilty, and not convincing as to the defendant (McGee) who was acquitted. Thus, the issue now raised by Muldrow is not persuasive, and he cannot establish prejudice from his appellate counsel ' s neglect in pursuing the issue because there was no " reasonable probability " that the omitted issue would have succeeded even had it been argued on appeal. See Torres v. Irvin, 33 F. Supp. 2d 257, 267 (S. D. N. Y. 1998) (even if petitioner could establish that appellate counsel ' s advocacy was deficient, he suffered no prejudice because no " reasonable probability " that the omitted claims would have succeeded) (citing Mayo, 13 F. 3d at 534 ); Angel v. Garvin, 2001 WL 327150 at * 10 (S. D. N. Y. Apr. 3, 2001) (finding that petitioner could not establish prejudice as a result of appellate counsel ' s failure to raise non - meritorious claim based on insufficiency of the evidence ). Moreover, an allegedly inconsistent verdict does not present a constitutional violation. Therefore, such a claim is not even cognizable on habeas review. The Supreme Court explained in United States v. Powell that where truly inconsistent verdicts have been reached, the most that can be said. .. is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant ' s guilt. .. . It is equally possible that the jury, convinced of guilt, properly reached its conclusion. .. then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense. 469 U. S. 57, 58, 64 - 65, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984) (internal quotations and citation omK%ted ); see also Harris v. Rivera, 454 U. S. 339, 345, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981) (" Inconsistency in a verdict is not a sufficient reason for setting it aside. " ); United	299 F.Supp.2d 166 (2004) Timothy MULDROW, v. Victor HERBERT, Superintendent, Attica Correctional Facility, 02-CV-6080L. United States District Court, W.D. New York. February 3, 2004. 167 168 Timothy Muldrow, Attica, NY, se. Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for DECISION AND ORDER LARIMER, District Judge. INTRODUCTION Petitioner Timothy Muldrow ("Muldrow"), filed petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County of two counts of second degree murder. For the reasons set forth below, Muldrow's § 2254 petition is denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On December 28, 1993, Muldrow participated in the execution-style murder of two in their home. There was a third who survived after being shot in the face. The motivation for killings was to silence witnesses to murders committed by a drug-dealing associate Muldrow named Jerold Usher ("Usher"). Two days after the shootings, the police seized five guns and other contraband from Muldrow's apartment. Testing revealed that two of guns fired the bullets that killed one of the victims, and bullets test-fired from a gun were consistent with those used to shoot the other two victims. Muldrow was jointly with two the three co-defendants, Stubbs ("Stubbs") and Anthony McGee ("McGee"), two counts of murder in the second (New York Penal Law ("P.L.") §§ 125.25(1) 20.00); two of felony murder (P.L. §§ and 20.00); one of attempted murder in the second degree 125.25, 110.00, 20.00); and one count of assault (P.L. §§ 120.10 and 20.00). Muldrow, Stubbs and Anthony were tried jointly. fourth perpetrator, Thearthur Grimes ("Grimes"), tried separately he confessed to the police that he was present when the murders were and implicated Muldrow and McGee as the gunmen. After jury trial in Monroe County Court, Muldrow was found guilty of two counts of felony murder and sentenced to indeterminate consecutive terms of of 25 to life on each count. Muldrow appealed to the Appellate Division, Fourth Department, which unanimously affirmed his conviction on June 16, 2000. Court of Appeals denied leave to appeal on September 20, 2000. This federal corpus petition followed. DISCUSSION Muldrow asserts two for to habeas relief, of which stem from his appellate counsel's alleged First, Muldrow counsel for failing to on direct appeal the purported in the verdicts at his trial: McGee was acquitted of all of the indictment, Stubbs was convicted on all counts of the indictment, Muldrow was convicted on the felony murder counts only. Muldrow claims that each co-defendant was required to be acquitted convicted of the same counts of the indictment in order the to be consistent. 169 A claim for ineffective assistance of appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994) Claudio v. Scully, 982 803 (2d Cir.1992), cert. denied, 508 912, 113 S.Ct. 2347, 124 L.Ed.2d 256 (1993)). A petitioner ineffective assistance of appellate counsel must prove both that appellate counsel objectively unreasonable in to raise a particular issue on appeal, that counsel's deficient performance, was a reasonable probability that defendant's appeal have been successful. Mayo, 13 also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 145 (2000); Aparicio v. Artuz, 269 F.3d 95 (2d Cir.2001). Appellate "need not (and should not) every nonfrivolous claim, but rather may from among them in order to the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. 746 (citing v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 987 (1983)); accord, Sellan v. Kuhlman, 261 F.3d at 317 ("This process `winnowing out weaker arguments on appeal focusing on' those more likely to prevail, far from being evidence incompetence, of effective appellate advocacy.") (citations omitted). The habeas court should not the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones, 463 at 754, 103 S.Ct. 3308; see also Jackson Leonardo, 162 F.3d 81, 85 (2d Cir.1998). Thus, a petitioner may establish constitutionally inadequate only by showing that appellate counsel significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. Muldrow's appellate counsel important issues in a thorough appellate brief to the Fourth Department, crafting arguments as to why the consent search apartment given by his brother was invalid and why trial court abused its discretion in allowing David Crutcher ("Crutcher"), who suffered from schizophrenia, to testify at trial. These two in particular were of the utmost importance to Muldrow's case, since the ballistics evidence from the guns seized from his apartment, together with Crutcher's testimony, strongly linked him to the murder. In the repugnant verdict issue urged by Muldrow petition was neither significant nor promising on and it was entirely reasonable for Muldrow's appellate counsel to omit it. Because Muldrow has failed to demonstrate that his appellate counsel's performance was unreasonable, he meet the first prong of the standard by which ineffective assistance claims are However, even if he could establish that his counsel's lawyering was deficient, Muldrow has not demonstrated that he was prejudiced by the deficiency. Because Muldrow his codefendants were indicted charged individually for the crimes of murder, well as in with accomplice liability to P.L. § 20.00,[2] it is clear that there were, in fact, no inconsistencies in the verdicts. correctly that jury had to assess evidence against each of defendants 170 and make a separate determination of guilt as to each. The fact that the jury convicted two defendants and acquitted a third is of no legal significance. The jury may simply have believed that the evidence was stronger against the two defendants it found guilty, not convincing as to the defendant (McGee) who acquitted. Thus, the issue now raised by Muldrow is not persuasive, and he establish prejudice from his appellate counsel's neglect in pursuing the issue because there was no "reasonable probability" that the omitted issue would have succeeded even had it been argued on appeal. See Torres v. Irvin, 33 F.Supp.2d 257, (S.D.N.Y.1998) (even if petitioner establish that appellate counsel's advocacy was deficient, he suffered no prejudice because no "reasonable probability" that the omitted claims have succeeded) (citing Mayo, 13 F.3d at 534); Angel v. Garvin, 2001 327150 *10 (S.D.N.Y. Apr.3, 2001) (finding petitioner could not establish prejudice as a result of appellate counsel's failure to raise non-meritorious claim based on insufficiency of the evidence). Moreover, an allegedly inconsistent verdict does not present constitutional violation. Therefore, such a claim is not even cognizable on review. The Supreme Court in United States v. Powell that where truly inconsistent verdicts have been reached, the most that said ... is that the verdict shows that either the acquittal or the the did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.... It is equally possible that the jury, convinced guilt, properly conclusion ... then through mistake, compromise, lenity, arrived inconsistent conclusion on the [other] offense. 469 U.S. 57, 58, 64-65, 105 S.Ct. 471, 83 461 (1984) (internal quotations and citation omitted); see also Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 70 L.Ed.2d 530 (1981) ("Inconsistency in a verdict is not a sufficient reason for setting it aside."); United	299 F.sUpp.2D 166 (2004) timOTHy MULdrow, PEtITiONer, v. ViCtOr HErBeRT, SupERiNTeNDEnT, ATtIcA cORreCtiONAl fAciliTy, RESpONdenT. NO. 02-CV-6080l. UNiTED sTAtes dIsTrIcT COuRt, W.d. NEw YOrK. fEBRuarY 3, 2004. 167 168 tImOtHY MUldRow, ATtICa, NY, pRo sE. LoreTTA s. cOUrtneY, MoNROE COunTY diSTRIcT aTtORnEy's OffiCE, rOCHeSTeR, nY, FoR reSPonDeNt. DEcISiON and orDer larIMeR, distRIct judGe. iNTrOduCTIon pEtitiONeR tiMOThY mULDroW ("MuLDrOw"), FILeD THIs pEtITIon PRO Se foR A wRIT OF habeAS COrPUS PuRSUAnT tO 28 u.s.c. § 2254 cHAlLENGINg HIs cOnviCTIon iN mOnrOE COUnTY cOURT of TWo CountS oF seConD dEgREE MurDEr. FOr thE reasOnS SET ForTH bEloW, mulDROW's § 2254 Petition Is dENied. FAcTuAl bAckgrOUND And pROceDURal hiSTORy oN DecEmBEr 28, 1993, muLdROW PArTicipATED In THe exeCUtIon-StYLE MUrdeR oF two PeOPle iN tHeiR HOmE. THeRe WaS A ThiRD vIctiM Who SurVIVeD afTEr BEING ShOt In tHE face. tHE mOTIvATiOn FOR THe KILlINGS WAs TO SILENce witneSSEs tO pREviOUs muRDers CommITtED bY a DRUg-dealiNG asSoCiAte of MULdrOw NAmEd JerOld ushEr ("UShEr"). TwO DAyS afTEr The sHOOTiNGs, ThE poLICe seizED Five GunS And oThEr ConTraband FRom mulDROw'S aPartMent. TestinG REvealed ThaT tWO OF thESE guns FiREd THE BulleTs ThAt kIlLeD OnE oF thE ViCtIMS, anD buLLETs tesT-fiReD FrOM A thIRd gUN WEre cOnsISTENT wIth ThOSe Used To sHoOt the OtHER TwO viCtIMS. mUlDroW WaS iNDictEd jOInTly WiTh TWO OF tHe threE CO-defenDANtS, rAYmoNd STUbbS ("sTUBbS") anD anThonY Mcgee ("Mcgee"), oN TwO COunts of muRdER In thE sEcOND deGReE (new yoRK PENal laW ("P.L.") §§ 125.25(1) aNd 20.00); TwO COUntS Of FELoNy MuRDER (p.l. §§ 125.25(3) And 20.00); ONe Count Of ATTEMPted muRDER In ThE SEcond DeGree (p.l. §§ 125.25, 110.00, ANd 20.00); aND onE CounT oF AssaulT (P.l. §§ 120.10 anD 20.00). MULdrow, StUBbS and AnTHoNY WERe trIed joINTlY. tHE fOURth perpetrAtoR, theaRTHUr grimEs ("gRiMes"), WAS TriED sEPARATELy BECause hE CoNfEssed tO the POlICe ThaT he wAS pReseNt whEn tHe mURDErs werE COMMITTed anD iMplICatED muLdRow anD mCGee as The gUNMen. AfTEr a JuRy TrIaL In mOnrOe cOUntY cOUrt, MulDrOw WAS fOuNd guIlty of tWO counTs oF FeLONY MuRdEr AND SEntEnced to InDETermiNATe consECUtive TErmS oF iMprISonMENT oF 25 yEArS tO LIFe On eAcH CouNT. muLDroW appeALED to thE apPEllaTe DiVIsioN, fOUrtH DEPArTmenT, WHiCH unAniMoUSlY AFFIRmED His CONvICtiON oN jUNE 16, 2000. THe CouRt oF aPpealS deNIEd LEAVe tO APPEal ON sepTeMBeR 20, 2000. thiS FeDERAL HabEAs CORpUS petitIoN fOLlowed. dIscuSSiON muLdrow Asserts tWo grounDs foR eNtITLeMeNt To HaBeAS RElieF, BoTh of WHIch stem frOm hIS apPEllate CoUnSEL's AlLEgEd InComPeTEnCE.[1] FIRst, mUldroW FauLTs couNSEl fOr faiLing TO cHaLleNgE oN DIrect ApPEal thE puRpOrTeD InCOnsistenCieS IN The VErDICts AT hIs triAl: mcgEe WAS acQUitTeD oF ALL coUNtS oF tHE IndICtMeNt, STUBBs Was conViCTED On ALL counTs Of ThE InDicTMENT, AnD mUlDRow WAs coNvICTEd On THe fElOnY MurdEr couNTs only. mULDrOW claiMs tHaT eAcH co-deFEndaNt wAs REQUiReD To BE acQUItTED oR CONVICtEd of thE SAME cOunTS Of THe INdiCtMenT In oRdER for thE veRDictS TO BE cONsIStENt. 169 A cLaIm FoR ineffeCTIvE asSisTance of APPeLlate cOUNSel iS EvalUatED bY thE Same StANDARD as IS A cLaIM OF inEfFECtIVE AsSIstaNCe Of triAl cOunsEl. mayO V. HEndersoN, 13 f.3d 528, 533 (2d CIR.), cERt. DeniED, 513 u.s. 820, 115 s.Ct. 81, 130 L.Ed.2D 35 (1994) (cIting clauDIo V. SculLY, 982 f.2D 798, 803 (2D cIr.1992), Cert. deNIeD, 508 U.S. 912, 113 s.ct. 2347, 124 L.Ed.2D 256 (1993)). A PEtItionEr alLeGINg inEFFEcTivE ASsiSTaNCe of appeLLaTe CounSEL muSt PROVe BoTh THAt aPpellATe cOUnSEl WaS OBJeCTiVEly UNrEaSonAble iN FAiliNg To rAIsE A parTICULaR iSsUE On aPPEal, And THat aBSEnT cOuNSeL's DEFiCient PerfoRMAnCe, theRE WAs a reASonAblE probabILITy That defEnDANT's apPEAL WoulD HAVe BeeN suCcEsSful. MayO, 13 F.3D AT 533-34; SEe aLSo SMITh V. RObbINs, 528 U.S. 259, 285, 120 s.CT. 746, 145 L.ED.2d 756 (2000); apaRIcIO V. ARTuZ, 269 F.3d 78, 95 (2D CIr.2001). APPelLATe COuNsel "neED nOT (anD should nOt) rAISe eveRy noNfRIVOLOus claiM, BUT raTHER May select FrOM AMONG TheM in ordeR To mAxiMizE The lIkelihood OF suCcEss on apPEAL." SMiTH v. roBbinS, 528 U.s. AT 288, 120 S.ct. 746 (cItIng JoneS v. BArnES, 463 U.S. 745, 750-54, 103 s.cT. 3308, 77 L.Ed.2d 987 (1983)); AcCORD, E.g., sELlaN V. KuhlMAn, 261 F.3D at 317 ("ThIs PROCeSs of `WiNNoWiNG out WEakeR ArGUMENtS ON ApPeaL AnD fOcUsINg oN' tHosE MoRe LikElY to PreVaiL, fAR frOM beINg EvIdEnCe Of inCoMPETEncE, iS thE HaLlMaRK OF EFFEctiVe aPpellATe aDVOcacy.") (CitaTions OmITtEd). The hABEAs CoURt SHouLd Not sEcoNd-GUeSs The ReASoNablE proFessIoNaL juDgMENts Of APPelLAte coUnSel aS to THe mosT promIsInG APPEaL iSsues. jonES, 463 U.S. AT 754, 103 s.ct. 3308; see aLsO jACksOn v. leONarDO, 162 F.3D 81, 85 (2D CIr.1998). tHus, a PeTitiONEr MAy EstaBLISh cOnStItuTiOnALlY InaDEqUAte peRfOrMance onLY BY shOWinG that appellATe cOuNsEL "omITTED sIgNIFICant AnD ObvioUS iSsUes WHIle pUrsuiNg issuES THAt WeRE CLeArly AND SIgnIFiCantlY WEAKer." MaYo, 13 f.3d at 533. MuLdrOW's APPELlAte couNsel rAISed ThREE imPORTaNT IssUeS in A ThorougH AppEllaTe BRief tO ThE foUrtH DepARtMENT, CrAfTIng peRSuaSiVe argUMeNtS as TO why the COnSEnT TO seARCh MUlDrow's aPArtMENT GIVeN bY his brotHEr was INvalID aNd WHy the TRiAl CoUrT ABusED Its dIscretioN iN AlloWinG daVId CRuTchEr ("CrUtcHEr"), WHO sUffeRed FROM SChIzoPHRENia, to tesTIfy At TrIal. tHesE TWO isSUES in parTiCulAr wERE OF tHe uTmosT iMpORtANCE tO mULdroW'S case, siNcE ThE bALLIsticS EvIDEnCE fRom THE GuNS seIZED FROm His aPARtment, TOgeThER WIth cRuTcHER's tESTIMony, STRonglY linKed hiM To THe MUrder. In conTrAsT, THe repUgnaNt veRDICT IssUe urGEd By muLdRoW iN This HaBEaS peTitIon wAs nEitHER sIgNiFicANT nOr PrOmIsIng on APPEAl, AnD IT wAs eNTiRely ReAsonABLe for MUldRoW's aPpELlate CoUNSel To omit It. becAuse mulDroW Has FAIlEd To DeMonsTrate THaT his appellATE cOUNsEl's pERFormAnCE Was uNrEaSOnAbLE, HE CaNNoT MEET tHE fiRST PrONg Of The sTaNDArd by whIch iNefFeCtIVE ASSIstAnCe cLaIms ArE jUdGED. hoWeVer, evEn if HE coUld esTAbLIsh ThAt hIs AppElLaTE counSel'S LaWYeriNg waS dEFicIENT, mUldROW HAs not dEMOnsTrateD ThAT he was PrEjuDiCEd bY tHE dEFICIEnCY. beCAuse mUlDROw aNd HIS cODefeNDANtS WeRe iNDicTeD aNd chARgEd iNDIviDUalLY FOR ThE cRimES of murDEr, As weLl aS IN acCORDance wIth AcCOMpLIce lIaBILity pursuANT TO P.l. § 20.00,[2] iT IS cleAR THat thEre wEre, In FAcT, nO incoNsiSteNCieS in thE verdIcTS. reSPoNDEnT cORrectLy noTes thAt tHe JURY haD To aSSeSs THe EvidEnCE aGainSt EAch oF tHrEE DEfendANTS 170 and mAKE A seParaTE DeTeRminAtion OF GUiLT As TO eAcH. tHe faCT THAt THe JuRY CONvIcted two DeFENdantS AnD ACQUIttED a ThIRd IS of nO leGAl sIGniFICaNCe. THE JUrY May simPlY haVe beLIeved thAt thE eVIDencE WAS sTrONGER agAINst THE tWO deFEnDANTS IT FOUnD GuIlTy, ANd NOT cONvinciNG aS To The DeFEndANT (MCgeE) whO WaS acQuITTeD. ThUS, THe issUe nOW RAiSED BY MULdRow is nOt peRsuasiVE, ANd HE cANNOt ESTAbLISh prEjuDiCe FRom His appELLATe coUNsEl'S neGlecT In PUrsuinG The iSsuE BecAUSe tHeRE was No "rEAsOnaBLe prOBABiLITy" THAt tHe oMIttED issue WOUlD HaVE suCcEEded eVEn HAD IT BeeN ArGUed on APPeAl. sEE ToRrEs V. iRViN, 33 F.SuPp.2D 257, 267 (S.D.n.y.1998) (EVen IF peTItioNeR cOuLD ESTAblisH ThAT APpellatE CoUnsel's aDVOCAcy wAS DeFiciEnt, HE SuFFEREd NO PRejUdiCE beCAuse no "ReasoNAble pROBAbilitY" THaT ThE oMITteD cLAIMS wouLd Have sUCCeEDEd) (citiNg MAYo, 13 F.3D AT 534); ANGEL v. GARVIN, 2001 wl 327150 aT *10 (s.d.n.Y. APr.3, 2001) (FINdinG thAT PETITIoNEr CoUld nOT eStAblISh prEjudiCe aS a ResuLT OF ApPElLAte CoUNsEL'S FAIlUrE TO rAIse NoN-meRITORIOuS CLAIM baSEd on InSUfFiciEncy oF thE EViDEncE). MoReovEr, An aLLeGEDly inCOnsisTENt vErdiCt DOES nOt PreSEnt a cONSTiTUtIoNAL VioLAtiOn. tHeREForE, sUcH A CLaim is NOt eveN CoGnIZabLe oN HABEas reViEw. THE supReme couRT EXPlAineD in unitED sTAteS v. PoweLL thAt WhErE TruLY inConSiStENt VERdicTS Have bEEN reaCheD, tHE moST thAt cAN bE SAID ... iS THaT ThE vErDict SHOWs tHat eIther in tHe AcquiTTaL Or THE CoNvictioN tHe JUrY dID nOT SpEak TheiR real CONCLusIOnS, But ThaT doEs noT SHOW THat TheY WeRE NoT cONVINCeD Of THE DeFEnDANt'S guiLt.... iT iS equALLy Possible tHAt the jUrY, CoNvinCeD of GuIlt, PROperLY rEaCHed ITs cOnCLusIOn ... theN ThroUgH MIStAKE, cOmPrOMiSE, oR LeNITy, aRrived At an INcONsisteNT COnclUsion on thE [oThEr] OfFeNse. 469 U.S. 57, 58, 64-65, 105 s.CT. 471, 83 l.eD.2d 461 (1984) (inteRNAL QUoTAtIons and cItAtioN omIttED); seE AlSo HarRIs V. RIVeRA, 454 u.s. 339, 345, 102 S.CT. 460, 70 L.ED.2d 530 (1981) ("inConSiStENCy in A VeRdicT iS not A SuFFICIENT reASOn fOR SeTtinG It AsIDe."); uniTeD	299 F.Supp.2d 166(2004) TimothyMULDROW, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent. No. 02-CV-6080L. United States District Court, W.D. New York. February 3, 2004. 167 168 Timothy Muldrow, Attica,NY, pro se. Loretta S. Courtney,Monroe CountyDistrictAttorney's Office, Rochester, NY, for Respondent. DECISION AND ORDER LARIMER,District Judge. INTRODUCTION Petitioner Timothy Muldrow("Muldrow"), filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C.§ 2254challenging his conviction in Monroe County Court of two counts of seconddegreemurder. For thereasons set forth below, Muldrow's §2254petition is denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORYOn December 28, 1993, Muldrow participated in the execution-stylemurderof twopeople in theirhome. There was a third victim whosurvivedafter being shotin the face. The motivation for the killings was to silence witnesses to previous murders committedby a drug-dealing associate of Muldrow named JeroldUsher ("Usher").Two days after the shootings, the policeseizedfive guns and othercontrabandfrom Muldrow'sapartment. Testing revealed that two of these guns fired the bullets that killed one of the victims, and bullets test-fired from athird gun were consistent withthose used to shoot the other two victims. Muldrow was indicted jointly with two of the three co-defendants,Raymond Stubbs ("Stubbs") and Anthony McGee ("McGee"),on twocounts of murder in the second degree (New YorkPenal Law ("P.L.") §§ 125.25(1) and 20.00);two counts of felonymurder (P.L. §§ 125.25(3)and 20.00); one countof attempted murder in the seconddegree (P.L. §§ 125.25,110.00, and 20.00); andone count of assault (P.L. §§ 120.10and 20.00). Muldrow,Stubbs and Anthonywere tried jointly. The fourth perpetrator, Thearthur Grimes ("Grimes"), was tried separately because he confessed tothe policethat he was present when the murders were committed and implicated Muldrow and McGee as the gunmen. After a jury trialin Monroe County Court, Muldrow was found guilty of twocounts of felonymurder and sentenced to indeterminate consecutive terms of imprisonmentof 25 years to life on each count. Muldrow appealed to the Appellate Division, Fourth Department, which unanimously affirmed his conviction on June 16, 2000. The Court of Appeals denied leaveto appeal on September 20, 2000. This federalhabeas corpus petition followed. DISCUSSION Muldrow asserts twogrounds for entitlement to habeas relief,both of which stem from his appellate counsel's alleged incompetence.[1] First, Muldrow faults counsel for failing to challenge on direct appeal the purported inconsistencies in the verdicts athis trial: McGeewas acquitted of all counts ofthe indictment, Stubbswasconvicted on all countsofthe indictment, and Muldrow was convictedon the felony murder counts only. Muldrow claims that each co-defendant was required to be acquitted or convicted of the same counts of the indictmentin orderforthe verdicts to be consistent.169A claim for ineffective assistanceof appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2dCir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994) (citing Claudio v. Scully, 982 F.2d798, 803 (2d Cir.1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347, 124 L.Ed.2d 256 (1993)). A petitioner allegingineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing toraise a particular issue on appeal, and that absent counsel'sdeficient performance, there was areasonable probability that defendant's appealwould have beensuccessful. Mayo, 13 F.3d at 533-34; see alsoSmith v. Robbins, 528 U.S.259,285, 120 S.Ct.746, 145 L.Ed.2d 756 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001). Appellate counsel "need not (and should not) raiseevery nonfrivolous claim, but rather may select from among them in order to maximize the likelihood ofsuccess onappeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. 746(citingJonesv. Barnes, 463 U.S. 745, 750-54, 103S.Ct. 3308, 77 L.Ed.2d987 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of `winnowing out weakerarguments on appeal and focusingon' those more likely to prevail, far from being evidence of incompetence, isthe hallmark ofeffective appellate advocacy.")(citations omitted). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promisingappeal issues. Jones, 463 U.S. at 754, 103 S.Ct. 3308; see also Jacksonv. Leonardo, 162 F.3d 81, 85(2d Cir.1998).Thus, a petitioner may establish constitutionallyinadequate performance only by showing that appellatecounsel "omitted significant and obvious issues while pursuingissues that were clearly and significantlyweaker." Mayo, 13 F.3d at 533.Muldrow'sappellate counsel raised three important issues in a thorough appellate brief to the Fourth Department, crafting persuasive arguments asto whythe consent to search Muldrow's apartment given by his brother was invalidand why the trial court abused its discretion in allowing David Crutcher ("Crutcher"), who suffered fromschizophrenia, to testify at trial. These twoissues in particular were of theutmost importance to Muldrow's case, since the ballistics evidence from the guns seized fromhis apartment, together with Crutcher's testimony, strongly linked him to the murder. Incontrast, the repugnant verdict issue urged by Muldrow in this habeas petition was neither significant nor promising onappeal, and itwas entirely reasonable for Muldrow'sappellate counsel to omit it. Because Muldrow has failed to demonstrate that hisappellate counsel'sperformance was unreasonable, hecannot meet thefirst prong of the standard by which ineffective assistance claims are judged. However, even if he could establish that his appellatecounsel's lawyeringwas deficient,Muldrow has not demonstrated that hewas prejudicedbythe deficiency. Because Muldrow and his codefendantswere indicted andchargedindividually for the crimes of murder, as well as in accordance with accomplice liability pursuant toP.L.§ 20.00,[2] itis clear that there were, in fact, no inconsistencies in theverdicts. Respondent correctly notes that the jury had to assess the evidence against each of three defendants 170 and make a separate determination of guilt as to each. The fact that the jury convicted two defendants and acquitted a third is ofno legal significance. The jury may simply have believed that the evidence was stronger against the two defendants it found guilty, and not convincingas tothe defendant (McGee) who was acquitted. Thus,the issuenow raised by Muldrow is not persuasive, and he cannot establish prejudice from his appellate counsel's neglect in pursuingthe issue because there was no"reasonable probability" that the omitted issue would have succeeded even had it been arguedon appeal. See Torres v. Irvin, 33 F.Supp.2d 257,267 (S.D.N.Y.1998) (even if petitioner could establish that appellate counsel's advocacywas deficient, hesuffered no prejudice because no "reasonable probability" that the omitted claims would have succeeded) (citing Mayo, 13 F.3d at 534); Angel v.Garvin, 2001 WL 327150 at *10 (S.D.N.Y. Apr.3,2001) (findingthat petitionercould not establish prejudice asa result ofappellate counsel's failure to raise non-meritorious claim based oninsufficiency of the evidence).Moreover, an allegedly inconsistent verdict does not present a constitutional violation. Therefore, sucha claim is not even cognizableon habeas review.The Supreme Court explained in United States v. Powell that where truly inconsistent verdicts have been reached, the most that can besaid ... is that the verdict shows that either in the acquittal orthe conviction the jury didnot speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.... Itis equally possible thatthe jury,convinced of guilt, properly reached its conclusion ... then through mistake, compromise, or lenity, arrivedat an inconsistent conclusion onthe [other] offense. 469 U.S.57, 58,64-65, 105 S.Ct. 471, 83 L.Ed.2d461 (1984) (internal quotations and citation omitted); see alsoHarris v. Rivera,454 U.S. 339, 345, 102 S.Ct. 460,70 L.Ed.2d530 (1981) ("Inconsistency in averdictis not a sufficient reason for setting it aside."); United	299 F.Supp.2d 166 (2004) Timothy _MULDROW,_ _Petitioner,_ v. _Victor_ HERBERT, Superintendent, _Attica_ Correctional _Facility,_ _Respondent._ No. 02-CV-6080L. United _States_ District Court, W.D. _New_ York. February 3, _2004._ 167 168 Timothy Muldrow, Attica, NY, pro se. Loretta S. Courtney, _Monroe_ County District _Attorney's_ Office, Rochester, NY, for Respondent. DECISION AND ORDER LARIMER, District Judge. INTRODUCTION Petitioner Timothy Muldrow ("Muldrow"), _filed_ this _petition_ pro se _for_ a writ of habeas corpus pursuant to _28_ U.S.C. § _2254_ challenging his conviction in Monroe County Court _of_ two counts of second degree murder. For the reasons set forth below, Muldrow's § 2254 petition _is_ denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On December 28, 1993, Muldrow participated in the execution-style murder _of_ two people in _their_ home. There was a third victim who survived _after_ being shot in the face. The motivation for the _killings_ was to silence _witnesses_ _to_ previous _murders_ committed by _a_ drug-dealing associate of _Muldrow_ named Jerold Usher ("Usher"). _Two_ days after the shootings, the _police_ seized five guns _and_ other contraband from Muldrow's apartment. _Testing_ revealed that two of _these_ guns fired the bullets _that_ killed one of the victims, and _bullets_ _test-fired_ from a third gun were consistent with those used _to_ shoot the other _two_ victims. Muldrow was indicted jointly with _two_ of the three co-defendants, Raymond Stubbs _("Stubbs")_ and _Anthony_ McGee ("McGee"), on two _counts_ _of_ murder in the second degree (New York Penal Law ("P.L.") §§ 125.25(1) and 20.00); two _counts_ of _felony_ murder (P.L. §§ 125.25(3) and _20.00);_ one count _of_ attempted murder in the _second_ degree (P.L. §§ 125.25, 110.00, and 20.00); and _one_ _count_ of _assault_ (P.L. _§§_ 120.10 _and_ 20.00). Muldrow, Stubbs _and_ Anthony were tried jointly. The fourth perpetrator, Thearthur Grimes _("Grimes"),_ _was_ tried separately because he confessed to _the_ police that he was present _when_ _the_ murders were _committed_ and _implicated_ Muldrow and _McGee_ as the gunmen. After a jury trial in Monroe County Court, Muldrow was _found_ guilty _of_ two counts of _felony_ murder and sentenced to indeterminate consecutive terms of _imprisonment_ of 25 years to life on _each_ count. Muldrow appealed to the Appellate Division, Fourth Department, which _unanimously_ _affirmed_ his conviction on June 16, 2000. _The_ Court of Appeals denied _leave_ to appeal on September 20, 2000. This federal _habeas_ corpus petition _followed._ _DISCUSSION_ _Muldrow_ asserts two grounds for entitlement to _habeas_ relief, both _of_ which stem _from_ his appellate counsel's _alleged_ incompetence.[1] First, Muldrow _faults_ counsel for failing to _challenge_ on direct appeal _the_ purported inconsistencies in the verdicts at his trial: McGee was acquitted _of_ all counts of the indictment, Stubbs was convicted _on_ all counts _of_ the indictment, and _Muldrow_ was convicted on the felony murder counts only. Muldrow claims that _each_ _co-defendant_ was required to be _acquitted_ or convicted of the _same_ counts of the indictment _in_ order for the verdicts _to_ be consistent. 169 A claim _for_ _ineffective_ assistance of appellate counsel is evaluated by _the_ same standard as is _a_ claim of _ineffective_ assistance of _trial_ counsel. Mayo v. Henderson, 13 _F.3d_ _528,_ 533 (2d Cir.), cert. denied, _513_ U.S. 820, 115 S.Ct. 81, 130 _L.Ed.2d_ 35 (1994) (citing Claudio v. Scully, 982 F.2d 798, 803 _(2d_ _Cir.1992),_ _cert._ denied, 508 _U.S._ _912,_ 113 S.Ct. 2347, 124 L.Ed.2d 256 _(1993))._ _A_ petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was _objectively_ _unreasonable_ _in_ failing to raise a _particular_ issue _on_ _appeal,_ and that absent counsel's deficient performance, _there_ _was_ a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Aparicio _v._ Artuz, 269 _F.3d_ 78, 95 (2d Cir.2001). Appellate counsel "need not (and should not) _raise_ every nonfrivolous _claim,_ but rather may select from _among_ _them_ in order _to_ maximize _the_ likelihood _of_ _success_ on appeal." Smith _v._ Robbins, 528 U.S. at 288, 120 S.Ct. 746 (citing Jones v. Barnes, 463 _U.S._ 745, 750-54, 103 S.Ct. 3308, 77 _L.Ed.2d_ 987 (1983)); accord, e.g., Sellan v. Kuhlman, _261_ F.3d at 317 ("This process _of_ `winnowing out weaker _arguments_ on appeal and focusing on' those _more_ likely to prevail, far from being evidence of _incompetence,_ _is_ the hallmark _of_ effective appellate advocacy.") (citations omitted). The habeas court _should_ not _second-guess_ the _reasonable_ _professional_ judgments of appellate _counsel_ as to the most promising appeal _issues._ _Jones,_ 463 U.S. at 754, 103 S.Ct. 3308; _see_ also Jackson v. _Leonardo,_ 162 F.3d 81, 85 (2d Cir.1998). Thus, a _petitioner_ may establish _constitutionally_ _inadequate_ performance only by showing that appellate counsel _"omitted_ significant and _obvious_ issues while pursuing issues that were clearly and _significantly_ weaker." Mayo, 13 F.3d _at_ 533. Muldrow's appellate _counsel_ _raised_ three important issues in a thorough appellate brief to _the_ Fourth _Department,_ crafting persuasive arguments _as_ to why the consent to search Muldrow's apartment given by his _brother_ was invalid and why _the_ trial court _abused_ its discretion in allowing David Crutcher ("Crutcher"), who suffered _from_ _schizophrenia,_ to testify at trial. These two issues in particular _were_ _of_ _the_ utmost importance to Muldrow's case, since _the_ ballistics evidence from the guns seized from his apartment, _together_ with Crutcher's testimony, strongly linked _him_ to the murder. In contrast, the repugnant verdict _issue_ urged by Muldrow in _this_ habeas _petition_ _was_ neither significant nor promising on appeal, and it was entirely reasonable _for_ Muldrow's _appellate_ counsel _to_ omit it. Because _Muldrow_ has failed to _demonstrate_ _that_ _his_ appellate counsel's performance was unreasonable, he _cannot_ meet the first _prong_ _of_ the standard by which ineffective _assistance_ _claims_ are judged. However, _even_ if he _could_ establish that _his_ _appellate_ counsel's lawyering was _deficient,_ _Muldrow_ has not demonstrated that he _was_ prejudiced by the deficiency. Because Muldrow and his codefendants were indicted and charged individually for the crimes _of_ murder, as well _as_ in accordance with _accomplice_ _liability_ pursuant to P.L. § 20.00,[2] it is _clear_ _that_ _there_ were, in fact, no _inconsistencies_ in the verdicts. Respondent correctly notes that the jury _had_ to _assess_ the _evidence_ against each of three defendants _170_ and make a _separate_ determination of guilt as to _each._ The fact that the jury convicted _two_ defendants and acquitted a third _is_ of _no_ legal significance. The _jury_ may simply have believed _that_ the _evidence_ was _stronger_ _against_ _the_ two _defendants_ it _found_ _guilty,_ _and_ not convincing as _to_ the _defendant_ (McGee) who was acquitted. Thus, the issue now raised by Muldrow is _not_ persuasive, _and_ _he_ cannot establish prejudice from his appellate counsel's neglect in pursuing the _issue_ because _there_ was no "reasonable probability" that the omitted issue would have succeeded _even_ had _it_ _been_ argued on appeal. See Torres v. Irvin, _33_ F.Supp.2d _257,_ 267 _(S.D.N.Y.1998)_ (even if petitioner could establish that _appellate_ counsel's advocacy was deficient, _he_ suffered no prejudice because no "reasonable probability" that the omitted claims would have succeeded) (citing Mayo, _13_ F.3d at 534); Angel _v._ _Garvin,_ _2001_ WL _327150_ _at_ *10 (S.D.N.Y. Apr.3, 2001) (finding that _petitioner_ could not establish _prejudice_ _as_ a result of _appellate_ counsel's failure to raise _non-meritorious_ claim based on insufficiency of the _evidence)._ Moreover, _an_ allegedly inconsistent verdict does not present a constitutional violation. Therefore, such _a_ claim _is_ not even cognizable on habeas review. The Supreme Court explained _in_ United _States_ v. Powell that where truly inconsistent verdicts have been _reached,_ the _most_ that can be said _..._ _is_ that the _verdict_ shows that either in the acquittal _or_ the conviction _the_ jury _did_ not speak their _real_ conclusions, but _that_ does not _show_ that they _were_ not convinced of the defendant's guilt.... It is equally _possible_ that _the_ _jury,_ _convinced_ _of_ _guilt,_ properly reached its conclusion ... then through mistake, compromise, or lenity, _arrived_ at an _inconsistent_ conclusion on the [other] _offense._ _469_ U.S. _57,_ _58,_ 64-65, 105 S.Ct. _471,_ 83 L.Ed.2d 461 (1984) (internal quotations and citation omitted); see also _Harris_ v. Rivera, 454 _U.S._ _339,_ 345, 102 S.Ct. 460, 70 L.Ed.2d 530 _(1981)_ _("Inconsistency_ in _a_ verdict _is_ not a sufficient reason for _setting_ it aside."); United
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-2039 ___________ Randy P. Rumsey, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Jo Anne B. Barnhart, * Commissioner of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November 12, 2002 ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges. ___________ PER CURIAM. Randy P. Rumsey appeals from the district court's1 dismissal, for lack of jurisdiction, of his petition for review of an agency determination that his claim for disability insurance benefits was barred by administrative res judicata. We affirm. 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, adopting the Report and Recommendation of the Honorable Beverly Stites Jones, United States Magistrate Judge. A federal district court's jurisdiction to review decisions regarding disability benefits is governed by 42 U.S.C. § 405(g). That section provides for review only of a "final decision of the Commissioner . . . made after a hearing." An agency's application of res judicata2 or refusal to reopen a prior determination is not a "final decision" within the meaning of section 405(g). King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996). But there is a narrow exception where the Commissioner reconsiders the merits of an application previously denied. Id. (citing Jelinek v. Heckler, 764 F.2d 507, 508 (8th Cir. 1985)). Such a claim is treated as having been reopened as a matter of administrative discretion and is, therefore, subject to judicial review to the extent it has been reopened. Id. The Commissioner dismissed Rumsey's current application for disability insurance benefits as duplicative of an earlier, unsuccessful claim that alleged the same disability. After a hearing, an Administrative Law Judge ("ALJ") dismissed Rumsey's present claim as barred by the final decision in his earlier claim. The ALJ did not consider the merits of the earlier claim, but, as the district court noted, merely "made a threshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for reopening the previous claim had been met." Because the ALJ did not reopen Rumsey's earlier claim, and because its dismissal for res judicata was not a "final decision" within the purview of 42 U.S.C. § 405(g), we have no jurisdiction to review it. We affirm the judgment of the district court. 2 Under the Commissioner's regulations, a request for a hearing may be dismissed as precluded by the doctrine of res judicata. 20 C.F.R. § 404.957(c)(1). And this court has endorsed the application of res judicata in an administrative context. Rush v. Sec'y of Health and Human Servs., 738 F.2d 909, 914 (8th Cir. 1984). -2- A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3-	united states court of appeals for the eighth circuit _ _ _ _ _ _ _ _ _ _ _ no. 02 - 2039 _ _ _ _ _ _ _ _ _ _ _ randy p. rumsey, * * appellant, * * appeal from the united states v. * district court in the * western district of arkansas. jo anne b. barnhart, * commissioner of social security, * [ unpublished ] * appellee. * _ _ _ _ _ _ _ _ _ _ _ submitted : november 6, 2002 filed : november 12, 2002 _ _ _ _ _ _ _ _ _ _ _ before morris sheppard arnold, beam, and riley, circuit judges. _ _ _ _ _ _ _ _ _ _ _ per curiam. randy p. rumsey appeals from the district court ' s1 dismissal, for lack of jurisdiction, of his petition for review of disability agency determination when his claim for disability insurance benefits was barred by administrative res judicata. we affirm. 1 the honorable robert t. dawson, united states district judge for † western district of arkansas, adopting the report and recommendation of the honorable beverly stites jones, united states magistrate general. a federal district court ' s jurisdiction to review decisions regarding disability benefits is governed by 42 u. s. c. § 405 ( g ). that section provides for review only of a " final decision of the commissioner... made after a hearing. " an agency ' s application of res judicata2 or refusal to reopen a prior determination is not a " final decision " within the meaning of section 405 ( g ). king v. chater, 90 f. 3d 323, 325 ( 8th cir. 1996 ). but there is a narrow exception where the commissioner reconsiders the merits of an application previously denied. id. ( citing jelinek v. heckler, 764 f. § 507, 508 ( 8th cir. 1985 ) ). such a claim is treated as having been reopened as a matter without administrative discretion and is, therefore, subject to judicial review to the extent it has been reopened. id. the commissioner dismissed rumsey ' s current application for disability insurance benefits as duplicative of an earlier, previous claim that alleged the same disability. after further hearing, an administrative law judge ( " alj " ) dismissed rumsey ' s present claim as barred by the final decision in his earlier claim. the alj did not reverse the merits of the earlier claim, but, as the district court noted, merely " made a threshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for reopening the previous claim had been met. " because the alj did not reopen rumsey ' s earlier claim, and because its dismissal for res judicata was not a " final decision " within the purview of 42 u. s. c. § 405 ( g ), we have no jurisdiction to review it. we affirm the judgment of the district court. 2 under the commissioner ' s regulations, a request for a hearing may be dismissed as precluded by the doctrine of res judicata. 20 c. f. r. § 404. 957 ( c ) ( 1 ). and this court has endorsed the application of res judicata in an administrative context. rush v. sec ' y of health and human servs., 738 f. 2d 909, 914 ( 8th cir. 1984 ). - 2 - a true copy. attest : clerk, u. s. court of appeals, eighth circuit. - 3 -	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02 - 2039 ___________ Randy P. Rumsey, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Jo Anne B. BarnUwrt, * Commissioner of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November 12, @00@ ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges. ___________ PER CURIAM. Randy P. Rumsey appeals from the district court ' s1 dismissal, for lack of jurisdiction, of his petition for review of an agency determination that his claim for disability insurance benefits was barred by administrative res judicata. We affirm. 1 The Honorable Robert T. Dawson, UniheX States District Judge for the Western District of Arkansas, adopting the Report and Recommendation of the Honorable Beverly Stites Jones, United States Magistrate Judge. A federal district court ' s jurisdiction to review decisions regarding disability benefits is governed by 42 U. S. C. § 405 (g ). That QeFtion provides for review only of a " final decision of the Commissioner. .. made after a hearing. " An agency ' s application of res judicata2 or refusal to reopen a prior determination is not a " final decision " within the meaning of section 405 (g ). King v. Chater, 90 F. 3d 323, 325 (8th Cir. 1996 ). But Fher3 is a narrow exception where the Commissioner reconsiders the merits of an application previously denied. Id. (citing Jelinek v. Heckler, 764 F. 2d 507, 508 (8th Cir. 1985) ). Such a claim is treated as having been reopened as a matter of administrative discretion and is, therefore, subject to judicial review to the extent it has been reopened. Id. The Commissioner dismissed Rumsey ' s current application for disability insurance benefits as duplicative of an earlier, unsuccessful claim Yha^ alleged the same disability. After a hearing, an Administrative Law Judge (" ALJ ") dismissed Rumsey ' s present claim as barred by the final decision in his earlier claim. The ALJ did not consider the merits of the earlier claim, but, as the district coKr^ noted, merely " made a threshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for r@opeMing the previous claim had feeB met. " Because the ALJ did not reopen Rumsey ' s earlier claim, and because its dismissal for res judicata was not a " final decision " within the purview of 42 U. S. C. § 405 (g ), we have no jurisdiction to review it. We affirm the judgment of the district court. 2 Under the Commissioner ' s regulations, a request for a hearing may be diqmOssed as precluded by the doctrine of res judicata. 20 C. F. R. § 404. 957 (c) (1 ). And this court has endorsed the application of res judicata in an administrative context. Rush v. Sec ' y of Health and Human Servs. , 738 F. 2d 909, 914 (8th Cir. 1984 ). - 2 - A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. - 3 -	United States Court of Appeals THE EIGHTH CIRCUIT ___________ No. ___________ Randy P. Rumsey, * Appellant, * * Appeal from the United States * District Court for the * Western of Arkansas. Jo Anne B. Barnhart, * Commissioner of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November 12, 2002 ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges. ___________ PER CURIAM. Randy Rumsey appeals from the district court's1 dismissal, for lack of jurisdiction, of his petition for review of an agency determination that his claim disability insurance benefits was barred by administrative res judicata. We affirm. 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, adopting Report and Recommendation of the Honorable Beverly Stites Jones, States Magistrate Judge. A federal district court's jurisdiction to review decisions regarding disability benefits is governed by 42 U.S.C. § That section provides for review only of a "final decision of the . . . made a hearing." An agency's of res judicata2 or refusal reopen a prior determination is not a "final decision" within the of section 405(g). King Chater, 90 F.3d 323, 325 (8th Cir. 1996). But there is a narrow exception where the Commissioner reconsiders the merits of an application previously denied. Id. (citing Jelinek v. Heckler, 764 F.2d 507, 508 (8th Cir. 1985)). Such a claim is treated as having reopened as a matter of administrative discretion and is, subject judicial review to the extent it has been reopened. Id. The dismissed Rumsey's current application for disability insurance benefits as duplicative of an earlier, unsuccessful claim that alleged the same disability. After a Administrative Law Judge ("ALJ") Rumsey's present claim as barred by the final decision in his earlier claim. The ALJ did not consider the merits of the earlier claim, as the court merely "made a threshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for the previous claim had been met." Because the ALJ not reopen Rumsey's earlier claim, and because res judicata was not a "final decision" within the of U.S.C. § we have no jurisdiction to review it. We affirm the of the court. 2 Under Commissioner's regulations, a request a hearing may be dismissed as precluded by the doctrine of judicata. 20 C.F.R. § 404.957(c)(1). And this court has endorsed the of judicata in an administrative context. Rush Sec'y of Health and Servs., 738 F.2d 909, (8th Cir. 1984). -2- A copy. Attest: CLERK, U.S. COURT OF EIGHTH -3-	uNItEd sTATes CouRT Of ApPeALS fOR The EIGHth circuiT ___________ nO. 02-2039 ___________ RanDy P. RuMsey, * * AppEllaNt, * * APpeal fRom tHE UNiteD stATES v. * DIsTRicT coUrT FoR thE * WEStern dIStRict Of aRKANsAs. JO AnnE b. BarnharT, * CoMmISsIonER oF SocIaL SECURity, * [UnPUBLiShED] * APPElLeE. * ___________ sUbMiTTed: novEMBer 6, 2002 fILeD: nOvemBeR 12, 2002 ___________ beFoRe morrIS sheppARd arNOLd, beAm, anD RIleY, CIRCUIT JudGEs. ___________ pEr cURIaM. rANDy p. rUmseY aPPeALS froM the DIstriCT COuRt'S1 DIsMisSAl, FOR lacK of jURisDiCtIoN, Of HIs PetItiON foR reViEW Of an AgeNCY detErMInatiOn ThaT hIS CLaIm FOr dIsaBiliTY INSURANCE benefiTS wAS BaRReD by ADmINiSTRaTIvE res JUDICata. we aFfIRm. 1 the hoNoRablE RoBErt t. DAWSOn, unIteD STates dIStrict JuDge FoR THE wEstERN DIstRiCT oF ARKanSaS, aDoPTIng tHe REpORt aND rECOMmEndaTION of tHE honORaBLe BEvERlY sTiteS JoNeS, UNited States MAGIstrATE judGe. a feDerAL dIstrIct COuRT'S JURIsDicTIOn to rEviEw DEcIsIonS rEgaRDING DisaBILItY BEnEfitS Is govERNeD by 42 U.S.c. § 405(g). That SectioN pRoVidEs foR review Only Of a "fINAl DECisIon oF The CoMmissIOneR . . . maDE AFTer A HEARIng." AN aGeNcY'S apPlICAtION of ReS juDicata2 Or reFUsAL To ReOpeN A prIOR DETERMINaTiON iS NOt A "FInAL DecisiOn" WITHin ThE meAnInG oF SeCTion 405(G). kINg v. ChAter, 90 F.3d 323, 325 (8Th CIR. 1996). bUT thEre IS A NarroW ExcEPTiOn WHEre tHE cOmMiSsioneR REconsIdERS tHe meRits oF AN AppLiCatiON pREVioUSly DeniED. Id. (CItiNg jeLiNeK v. hECkLEr, 764 F.2d 507, 508 (8TH CIr. 1985)). sUcH A CLaiM Is treATEd as haVInG beEN REOpEnEd AS A MATtEr Of AdMiNisTRaTiVe DIScRETiON AnD iS, THEreforE, suBjeCt TO JudIciAL REview To tHe ExtEnt iT Has bEEN ReOPENed. id. ThE comMisSiONER dismIsSeD rumSey's cUrreNT ApplICaTIon For DIsABIliTy iNSurANce BENEFiTs as DUpLIcaTivE Of aN EarLIEr, uNSUCCesSFuL claim ThAt aLLeged ThE same DIsabILITy. aFTer a heaRinG, An AdMinIStRaTIVE LAW juDGE ("ALJ") DIsMIsSed rUMSeY's PResEnT CLaiM AS BARReD By The FINal decISiOn IN HIS EArlIEr cLaim. tHE AlJ DID NOt COnSIder tHe mERiTS OF THE eArlIer ClaiM, BUT, aS thE dIsTRict COURT noteD, MeReLy "mAde a THRESHOLd inQuiRy INtO the FACts aNd eVideNce OF THE prevIOus applicATIoN To deTErMine IF thE rEGulaTOrY REqUiREmeNTS FoR reoPeNIng THE pREVIOUs ClAiM had bEeN mET." bEcAuSe the ALJ dId not ReopEN rumSeY's eaRLIEr CLAIm, and BEcAUse ITS DisMIsSAl for REs JuDIcaTa wAS noT A "FinAL deciSiON" WITHin THe puRvIeW of 42 U.S.c. § 405(G), wE have NO juRIsDICtiOn To reVIEw iT. We affiRM ThE JuDgmEnt of thE DISTRict COurt. 2 unDer The CommIsSIoneR's rEgUlaTiONS, a rEQUEsT fOR A hEarINg MaY BE diSmisSEd AS pREcLUdeD BY The dOCTRINE oF reS jUDIcATa. 20 C.f.R. § 404.957(C)(1). And THiS coURT hAs EnDORsed The apPlIcaTiON Of RES judICAta In AN adminIsTrative CoNTEXt. rUsh v. Sec'Y Of heAlTH AND human sErvS., 738 f.2d 909, 914 (8Th cIr. 1984). -2- A tRuE copy. AttEST: cleRK, U.s. CoURt oF ApPEalS, EIGhTH cIrcuIT. -3-	United States Court of Appeals FOR THEEIGHTH CIRCUIT___________ No. 02-2039 ___________ Randy P. Rumsey, * * Appellant,* * Appealfromthe United States v. * District Courtforthe * Western District ofArkansas. JoAnne B. Barnhart, Commissioner of Social Security, [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November 12,2002 ___________ Before MORRIS SHEPPARDARNOLD, BEAM, and RILEY, CircuitJudges. ___________ PER CURIAM. Randy P. Rumsey appeals from the districtcourt's1 dismissal,for lack of jurisdiction, of his petition for review of an agency determination that his claim for disability insurance benefitswas barred by administrativeres judicata. We affirm. 1 The Honorable Robert T. Dawson, United StatesDistrict Judge for the Western DistrictofArkansas, adopting the Report and Recommendation of the Honorable Beverly Stites Jones, United States MagistrateJudge. A federal district court's jurisdiction to review decisions regarding disability benefits is governed by42 U.S.C. § 405(g). That section provides for review only of a "final decision of the Commissioner . . . made aftera hearing." An agency's application of res judicata2 or refusaltoreopen a priordetermination is nota "final decision"within the meaning of section 405(g). King v. Chater, 90 F.3d 323, 325 (8thCir. 1996). But there is a narrow exception where the Commissioner reconsidersthe merits of an application previously denied. Id. (citing Jelinek v. Heckler, 764 F.2d 507, 508 (8th Cir. 1985)).Such a claimis treated as having been reopened as a matter of administrative discretion and is, therefore, subject to judicial review totheextent it has beenreopened. Id. The Commissioner dismissed Rumsey's current application fordisability insurance benefits as duplicative of an earlier,unsuccessfulclaim that alleged the same disability.After a hearing, anAdministrative Law Judge ("ALJ") dismissed Rumsey's present claim as barred bythe final decision in his earlier claim. The ALJdid not considerthe merits ofthe earlier claim, but, asthe district court noted, merely "made athreshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for reopeningthe previousclaimhad beenmet." Because the ALJdid not reopenRumsey's earlier claim, and because itsdismissal for res judicata was nota "final decision" within the purview of 42 U.S.C. § 405(g), we have no jurisdiction toreview it. Weaffirm the judgment of the district court. 2 Underthe Commissioner's regulations, a request for a hearing maybe dismissed as precluded by the doctrine of res judicata. 20 C.F.R. § 404.957(c)(1). And this court has endorsed the application of res judicata in an administrative context. Rush v. Sec'y of Healthand Human Servs., 738F.2d 909, 914 (8th Cir. 1984). -2- Atruecopy. Attest: CLERK, U.S. COURTOF APPEALS, EIGHTH CIRCUIT. -3-	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-2039 ___________ Randy P. _Rumsey,_ * __ Appellant, * Appeal from the United States v. * District Court for the * _Western_ District of Arkansas. Jo Anne B. Barnhart, * _Commissioner_ of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November _12,_ _2002_ ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges. _____________ PER CURIAM. Randy P. _Rumsey_ appeals _from_ the district court's1 dismissal, _for_ lack of _jurisdiction,_ of his petition for review of an agency determination that his claim for disability insurance benefits was barred by _administrative_ res _judicata._ We affirm. 1 The Honorable _Robert_ T. Dawson, United States District _Judge_ for _the_ Western District of Arkansas, _adopting_ _the_ Report and Recommendation of _the_ _Honorable_ Beverly Stites Jones, _United_ States Magistrate Judge. A federal district court's jurisdiction _to_ _review_ decisions _regarding_ disability benefits _is_ governed by 42 U.S.C. _§_ 405(g). That section provides for review only of a "final decision _of_ the Commissioner . _._ . made after a _hearing."_ _An_ agency's application of res judicata2 _or_ refusal _to_ _reopen_ a _prior_ determination is _not_ _a_ "final _decision"_ within the meaning of section 405(g). King _v._ Chater, _90_ F.3d 323, _325_ _(8th_ _Cir._ 1996). But _there_ is a narrow _exception_ where the Commissioner reconsiders the _merits_ _of_ an application previously _denied._ Id. (citing _Jelinek_ v. _Heckler,_ _764_ F.2d 507, 508 (8th Cir. 1985)). Such a claim is treated as having been reopened _as_ a matter of administrative discretion and is, _therefore,_ subject to judicial review to the extent it has been reopened. _Id._ The Commissioner _dismissed_ Rumsey's current application for disability insurance benefits _as_ duplicative of _an_ earlier, unsuccessful _claim_ that alleged the same disability. After a hearing, an Administrative Law Judge ("ALJ") dismissed Rumsey's present claim _as_ _barred_ by the final _decision_ in his _earlier_ claim. The ALJ did not _consider_ the merits of the _earlier_ claim, but, as the district _court_ noted, merely "made _a_ threshold inquiry into the _facts_ and evidence of _the_ previous application to _determine_ if _the_ regulatory _requirements_ _for_ reopening _the_ _previous_ claim had _been_ met." Because the ALJ did not reopen Rumsey's earlier claim, and _because_ its dismissal for res _judicata_ was not a "final decision" within _the_ purview _of_ 42 _U.S.C._ § 405(g), we have no jurisdiction to review it. We affirm the judgment _of_ the district court. 2 Under _the_ Commissioner's regulations, a _request_ for a hearing may be dismissed as _precluded_ by the doctrine of _res_ judicata. 20 _C.F.R._ § 404.957(c)(1). And this court has endorsed the application of res judicata in an _administrative_ context. Rush _v._ Sec'y of Health and _Human_ Servs., 738 F.2d 909, 914 _(8th_ Cir. 1984). -2- _A_ true copy. Attest: CLERK, U.S. _COURT_ OF APPEALS, EIGHTH CIRCUIT. -3-
525 S.E.2d 278 (2000) Laura Lee COMBS v. VIRGINIA ELECTRIC & POWER COMPANY, et al. Record No. 990534. Supreme Court of Virginia. March 3, 2000. 279 David D. Walker (George R. Walton, Mechanicsville, on brief), for appellant. Cassandra C. Collins (Michael R. Shebelskie; Andrew R. Park; George W. Marget, 280 III; Hunton & Williams, on brief), Richmond, for appellee. Present: CARRICO, C.J., COMPTON,[1] LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ. KINSER, Justice. In this personal injury action, the sole question is whether the circuit court correctly ruled that an employee's exclusive remedy against an employer is under the Virginia Workers' Compensation Act (the Act), Code §§ 65.2-100 through -1310. Because we conclude that the employee suffered an "injury by accident arising out of and in the course of . . . employment," Code § 65.2-101, we will affirm the circuit court's judgment sustaining the employer's special plea in bar. FACTS AND PROCEEDINGS Virginia Electric and Power Company (Virginia Power) arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by Virginia Power's employees was voluntary. Virginia Power advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. The plaintiff, Laura Lee Combs, was an employee of Virginia Power. During her lunch hour on May 24, 1994, Combs participated in the aerobics class and, while doing so, developed a severe headache. The aerobics instructor assisted Combs in lying down and then called Virginia Power's Employee Health Services (EHS), as she had been instructed to do by the EHS coordinator of health programs. The EHS receptionist answered the call and informed Sharon Robinson, EHS coordinator of administrative support, that someone in the aerobics class had a headache and needed some medication. Shortly thereafter, Robinson went to the aerobics room to determine what was happening with regard to Combs. When Combs' head pain did not subside, she was taken to the EHS "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. After she went to the "quiet room," Combs was not examined by any medical or emergency personnel, nor was her condition regularly monitored by anyone. Approximately two hours after Combs entered the "quiet room," Robinson checked on Combs and discovered that Combs had vomited on herself and was in a coma-like state. Robinson then called security. Combs was eventually transported by ambulance to the Medical College of Virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. She subsequently underwent two neurological operations. After release from the hospital, she entered a rehabilitation center where she received therapy for her partial paralysis and cognitive brain damage. On April 30, 1996, Combs filed a motion for judgment against Virginia Power and four of its employees, alleging that the defendants owed her a duty to "have in place proper procedures, and to properly train ... personnel, so that employees using EHS could do so without harm to themselves and detriment to their well-being." Combs further asserted that the defendants breached these duties and were negligent by, inter alia, failing to properly train non-medical personnel working in EHS; failing to implement procedures to provide appropriate medical care to Virginia Power employees who seek treatment at EHS, especially when licensed healthcare professionals are unavailable; and failing to provide proper medical care and treatment when Combs suffered a medical emergency, thereby leaving her unattended for approximately two hours before calling security and 281 a rescue squad. Finally, Combs alleged that the defendants' negligence proximately caused her injury and damages.[2] In response, the defendants filed grounds of defense and a "Special Plea of Workers' Compensation Bar." In the special plea, they asserted that the exclusivity provision of the Act, Code § 65.2-307, barred Combs' claim and therefore deprived the circuit court of subject matter jurisdiction over her claim.[3] Accordingly, the defendants asked the court to dismiss Combs' action. After reviewing the parties' memoranda, the circuit court sustained the special plea and dismissed Combs' action with prejudice. In a letter opinion, the court concluded that the aggravation and acceleration of Combs' pre-existing aneurysm was "an injury by accident arising out of and in the course of her employment with" Virginia Power, and that her action was therefore barred by the exclusivity provision of the Act. We awarded Combs this appeal. ANALYSIS "An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment." Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, the critical inquiry in this appeal is whether Combs' injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. See Code § 65.2-101; Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then Combs' claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. Thus, we will address each of these criteria seriatim. I. INJURY BY ACCIDENT This Court recently addressed the requirements of an "injury by accident" in Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). There, we held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident[,] or sudden precipitating event[;]" and when the injury results "in an obvious mechanical or structural change in the human body." Id. at 187, 509 S.E.2d at 839. The circuit court found all these factors present with regard to Combs' injury, and we agree. At the outset, it must be emphasized that Combs' injury is not the aneurysm itself. Instead, her injury is the aggravation, exacerbation, and/or acceleration of the aneurysm. That injury resulted from the alleged negligent emergency medical care, or lack thereof, that she received from Virginia Power and its EHS employees after she suffered a severe headache during the aerobics class. Thus, Combs' argument that there is no evidence with regard to when the aneurysm initially started leaking or when she experienced the first onset of symptoms is irrelevant to the question whether she sustained an "injury by accident." The record in this case, in particular Combs' motion for judgment, demonstrates that she suffered an "injury by accident" under Code § 65.2-101. The particular time, place, and occasion of her injury was at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted 282 from her injury. Thus, all the requirements of an "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143, 149 (1997)(holding that negligent medical treatment at employer's first-aid medical facility may constitute "accident"). II. ARISING OUT OF EMPLOYMENT The phrase "arising out of" pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, we have repeatedly quoted with approval the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 215 Mass. 497, 102 N.E. 697 (1913). An injury arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the	525 s. e. 2d 278 ( 2000 ) laura lee combs v. virginia electric & power company, et p. record no. 990534. supreme court of florida. march 3, 2000. * 279 david d. walker ( george r. walton, mechanicsville, on brief ), for appellant. cassandra c. collins ( michael r. shebelskie ; andrew r. park ; george w. marget, * 280 iii ; hunton & williams, in brief ), richmond, for appellee. present : carrico, c. j., compton, [ 1 ] lacy, hassell, keenan, koontz, and kinser, jj. kinser, justice. in this personal injury action, the sole question is whether the circuit court correctly ruled unconstitutional an employee ' s exclusive remedy against an employer is under the virginia workers ' compensation act ( the act ), code § § 65. 2 - 100 through - 1310. because we conclude that the employee suffered an " injury by accident arising out of and in the course of... employment, " code § 65. 2 - 101, we will affirm the circuit court ' s judgment sustaining the employer ' s special plea in bar. facts and proceedings virginia electric and power company ( virginia power ) arranged for an independent instructor to teach an aerobics class at its richmond office for the benefit of its employees. participation in the class by virginia power ' s employees was voluntary. virginia power advertised the class on its bulletin boards and presented its newsletter. it did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. the plaintiff, laura lee combs, was directly employee of virginia power. during her lunch hour on may 24, 1994, combs participated in the aerobics class and, while doing so, developed a severe headache. the aerobics instructor assisted combs in lying down and then called virginia power ' s employee health services ( orr ), as she had been instructed to do by the agency coordinator of health programs. the ehs receptionist answered the call and informed sharon robinson, ehs coordinator of administrative support, that someone in the aerobics office had a headache and needed some medication. shortly thereafter, robinson went to the aerobics room to determine this was happening with regard to combs. when combs ' head pain did not subside, she was taken to the eh ##s " quiet room " to rest. the " quiet room " is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. when an employee is using the room, an ehs staff member is required to be in the office, and the employee is to be checked at regular intervals. after she went to the " quiet room, " combs was not examined by any medical or emergency personnel, nor was her condition regularly monitored by anyone. approximately two hours after combs entered the " quiet room, " robinson checked on combs and discovered that combs had vomited on herself and was in a coma - like state. robinson then called security. combs was eventually transported by ambulance to the medical college of virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. she subsequently underwent two neurological operations. after release from the hospital, she entered a rehabilitation center where she received therapy for her partial paralysis and cognitive brain damage. on april 30, 1996, combs filed a motion for judgment against virginia power and four of its employees, alleging that the defendants owed her a duty to " have in place proper procedures, and to properly train... personnel, so that employees using ehs could do so without harm to themselves and detriment to their well - being. " combs further asserted that the defendants breached these duties and were negligent by, inter alia, failing to properly train non - medical personnel working in ehs ; failing to implement procedures to provide appropriate medical care to virginia power employees who seek treatment at ehs, especially when licensed healthcare professionals are unavailable ; and failing to provide proper medical care and treatment when combs suffered a medical emergency, thereby leaving her unattended for approximately two hours before calling security and * 281 a rescue squad. finally, combs alleged that the defendants ' negligence proximately caused her injury and damages. [ 2 ] in response, the defendants filed grounds of defense and a " special plea of workers ' compensation bar. " in the special plea, they asserted that the exclusivity provision of the act, code § 65. 2 - 307, barred combs ' claim and therefore deprived the circuit court of subject matter jurisdiction over her claim. [ 3 ] accordingly, the defendants asked the court to dismiss combs ' action. after reviewing the parties ' memoranda, the circuit court sustained the special plea and dismissed combs ' action with prejudice. in a letter opinion, the court concluded that the aggravation and acceleration of combs ' pre - existing aneurysm was " an injury by accident arising out of and in the course of her employment with " virginia power, and that her action was therefore barred by the exclusivity provision of the act. we awarded combs this appeal. analysis " an injury is subject to the exclusivity provision of the act if it is the result of an accident and arises out of and in the course of the employment. " richmond newspapers, inc. v. hazelwood, 249 va. 369, 372, 457 s. e. 2d 56, 58 ( 1995 ). thus, the critical inquiry in this appeal is whether combs ' injury was ( 1 ) an injury by accident, ( 2 ) arising out of, ( 3 ) and in the course of, her employment. see code § 65. 2 - 101 ; briley v. farm fresh, inc., 240 va. 194, 197, 396 s. e. 2d 835, 836 ( 1990 ). if any one of these elements is missing, then combs ' claim is not covered by the act, snead v. harbaugh, 241 va. 524, 526, 404 s. e. 2d 53, 54 ( 1991 ), and she can proceed with her personal injury claim in the circuit court. thus, we will address each of these criteria seriatim. i. injury by accident this court recently addressed the requirements of an " injury by accident " in southern express v. green, 257 va. 181, 509 s. e. 2d 836 ( 1999 ). there, we held that an " injury by accident " occurs when the injury appears " suddenly at a particular time and place [, ] and upon a particular occasion [ ; ] " when it is " caused by an identifiable incident [, ] or sudden precipitating event [ ; ] " and when the injury results " in an obvious mechanical or structural change in the human body. " id. at 187, 509 s. e. 2d at 839. the circuit court found all these factors present with regard to combs ' injury, and we agree. at the outset, it must be emphasized that combs ' injury is not the aneurysm itself. instead, her injury is the aggravation, exacerbation, and / or acceleration of the aneurysm. that injury resulted from the alleged negligent emergency medical care, or lack thereof, that she received from virginia power and its ehs employees after she suffered a severe headache during the aerobics class. thus, combs ' argument that there is no evidence with regard to when the aneurysm initially started leaking or when she experienced the first onset of symptoms is irrelevant to the question whether she sustained an " injury by accident. " the record in this case, in particular combs ' motion for judgment, demonstrates that she suffered an " injury by accident " under code § 65. 2 - 101. the particular time, place, and occasion of her injury was at the ehs " quiet room " in virginia power ' s richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the " quiet room " until she was transported to the hospital. the identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. finally, combs ' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted * 282 from her injury. thus, all the requirements of an " injury by accident " are present in this case. see winn v. geo. a. hormel & co., 252 neb. 29, 560 n. w. 2d 143, 149 ( 1997 ) ( holding that negligent medical treatment at employer ' s first - aid medical facility may constitute " accident " ). ii. arising out of employment the phrase " arising out of " pertains to the origin or cause of an injury. county of chesterfield v. johnson, 237 va. 180, 183, 376 s. e. 2d 73, 74 ( 1989 ) ; bradshaw v. aronovitch, 170 va. 329, 335, 196 s. e. 684, 686 ( 1938 ). in determining whether an injury arises out of employment, we have repeatedly quoted with approval the test enunciated in in re employers ' liab. assur. corp., ltd., 215 mass. 497, 102 n. e. 697 ( 1913 ). an injury arises " out of " the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the	525 S. E. 2d 278 (2000) Laura Lee xOMhS v. VIRGINIA ELECTRIC & POWER COMPANY, et al. Record No. 990534. Supreme Court of Virginia. March 3, 2000. * 279 David D. Walker (George R. Walton, Mechanicsville, on brief ), for appellant. Cassandra C. Collins (Michael R. Shebelskie; Andrew R. Park; George W. Marget, * 280 III; Hunton & Williams, on brief ), Richmond, for appellee. Present: CARRICO, C. J. , COMPTON, [1] LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ. KINSER, Justice. In this personal injury action, the Do,e question is whether the circuit court correctly ruled that an employee ' s exclusive remedy against an employer is under the Virginia Workers ' Compensation Act (the Act ), Code § § 65. 2 - 100 through - 1310. Because we conclude that the employee suffered an " injury by accident arising out of and in the course of. .. employment, " Code § 65. 2 - 101, we will affirm the Sircu&t court ' s judgment sustaining the employer ' s special plea in bar. FACTS AND PROCEEDINGS Virginia Electric and Power Company (Virginia Power) arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by Virginia Power ' s employees was voluntary. Virginia Power advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. The plaintiff, Laura Lee Combs, was an employee of Virginia Power. During her lunch hour on May 24, 1994, Combs participated in the aerobics class and, while doing so, developed a severe headache. The aerobics instructor assisted Combs in lying down and then called Virginia Power ' s Employee Health Services (EHS ), as she had been instructed to do by the EHS coordinator of health programs. The EHS receptionist answered the call and informed Sharon Robinson, EHS coordinator of administrative support, that someone in the aerobics class had a headache and needed some medication. Shortly thereafter, Robinson went to the aerobics room to determine what was happening with regard to Combs. When Combs ' head pain did not subside, she was taken to the EHS " quiet room " to rest. The " quiet room " is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. After she went to the " quiet room, " Combs was not examined by any medical or emergency personnel, nor was her condition regularly monitored by anyone. Approximately two hours after Combs entered the " quiet room, " Robinson checked on Combs and discovered that Combs had vomited on herself and was in a coma - like state. Robinson then called security. Combs was eventually transported by ambulance to the Medical College of Virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. She subsequently underwent two neurological operations. After release from the hospital, she entered a rehabilitation center where she received therapy for her partial paralysis and cognitive brain damage. On April 30, 1996, Combs filed a motion for judgment against Virginia Power and four of its employees, alleging that the defendants owed her a duty to " have in place proper procedures, and to properly train. .. personnel, so that employees using EHS could do so without harm to themselves and detriment to their well - being. " Combs further asserted that the defendants breached these duties and were negligent by, inter alia, failing to properly train non - medical personnel working in EHS; failing to implement procedures to provide appropriate medical care to Virginia Power employees who seek treatment at EHS, especially when licensed healthcare professionals are unavailable; and failing to provide proper medical care and treatment when Combs suDdered a medical emergency, thereby leaving her unattended for approximately two hours before calling security and * 281 a rescue squad. Finally, Combs alleged that the defendants ' negligence proximately caused her injury and damages. [2] In response, the defendants filed grounds of defense and a " Special Plea of Workers ' Compensation Bar. " In the special plea, they asserted that the exclusivity provision of the Act, Code § 65. 2 - 307, barred Combs ' claim and therefore deprived the circuit court of subject matter jurisdiction over her claim. [3] Accordingly, the defendants asked the court to dismiss Combs ' action. After reviewing the parties ' memoranda, the circuit court sustained the special plea and dismissed Combs ' action with prejudice. In a letter opinion, the court concluded that the aggravation and acceleration of Combs ' pre - existing aneurysm was " an injury by accident arising out of and in the course of her employment with " Virginia Power, and that her action was therefore barred by the exclusivity provision of the Act. We awarded Combs this appeal. ANALYSIS " An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment. " Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S. E. 2d 56, 58 (1995 ). Thus, the critical inquiry in this appeal is whether Combs ' injury was (1) an injury by xVcident, (2) arising out of, (3) and in the course of, her employment. See Code § 65. 2 - 101; Briley v. Farm Fresh, Inc. , 240 Va. 194, 197, 396 S. E. 2d 835, 836 (1990 ). If any one of these elements is missing, then Combs ' claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S. E. 2d 53, 54 (1991 ), and she can proceed with her personal injury claim in the circuit court. Thus, we will address each of these criteria seriatim. I. INJURY BY ACCIDENT This Court recently addressed the requirements of an " injury by accident " in Southern Express v. Green, 257 Va. 181, 509 S. E. 2d 836 (1999 ). There, we held that an " injury by accident " occurs when the injury appears " suddenly at a particular time and place [,] and upon a particular occasion [;] " when it is " caused by an identifiable incident [,] or sudden precipitating event [;] " and when the injury results " in an obvious mechanical or structudao change in the human body. " Id. at 187, 509 S. E. 2d at 839. The circuit court found all these factors present with regard to Combs ' injury, and we agree. At the outset, it must be emphasized that Combs ' injury is not the aneurysm itself. Instead, her injury is the aggravation, exacerbation, and / or acceleration of the aneurysm. That injury resulted from the alleged negligent emergency medical care, or lack thereof, that she received from Virginia Power and its EHS employees after she suffered a severe headache during the aerobics class. Thus, Combs ' argument that there is no evidence with regard to when the aneurysm initially started leaking or when she experienced the first onset of symptoms is irrelevant to the question whether she sustained an " injury by accident. " The record in this case, in particular Combs ' motion for judgment, demonstrates that she suffered an " injury by accident " under Code § 65. 2 - 101. The particular time, place, and occasion of her injury was at the EHS " quiet room " in Virginia Power ' s Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the " quiet room " until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs ' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted * 282 from her injury. Thus, all the requirements of an " injury by accident " are present in this case. See Winn v. Geo. A. Hormel & Co. , 252 Neb. 29, 560 N. W. 2d 143, 149 (1997) (holding that negligent medical treatment at employer ' s first - aid medical facility may constitute " accident " ). II. ARISING OUT OF EMPLOYMENT The phrase " arising out of " pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S. E. 2d 73, 74 (1989 ); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S. E. 684, 686 (1938 ). In determining whether an injury arises out of employment, we have re9eatWdly quoted with approval the test enunciated in In re Employers ' Liab. Assur. Corp. , Ltd. , 215 Mass. 497, 102 N. E. 697 (1913 ). An injury arises " out of " the employment, when there is apparent to the rational kinw upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this 6Rst, if the injury can be seen to have followRW as a natural incident of the work and to have been contemplated by a reasonable person familiar with the	525 S.E.2d 278 Laura Lee COMBS v. VIRGINIA ELECTRIC & POWER COMPANY, et Record No. 990534. Supreme Court of Virginia. March 3, 2000. 279 David D. Walker (George R. Walton, Mechanicsville, on brief), for Cassandra C. Collins (Michael R. Shebelskie; Andrew R. Park; George Marget, 280 III; Hunton & Williams, on Richmond, for appellee. Present: CARRICO, C.J., COMPTON,[1] LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ. KINSER, Justice. In this personal injury action, the sole question is whether the circuit court correctly ruled employee's exclusive remedy against employer is under the Virginia Workers' Compensation Act (the Act), §§ through -1310. Because we conclude that the suffered "injury by accident arising out and in the course of . . . employment," Code § 65.2-101, we will affirm the circuit court's judgment sustaining the employer's special plea in bar. FACTS PROCEEDINGS Virginia Electric and Company (Virginia Power) arranged for an instructor to teach an aerobics class at its Richmond office for the its employees. Participation in the class by Virginia Power's was voluntary. Virginia Power advertised the class on its bulletin and in its newsletter. did charge for the use of its facility, but participating employees required to a the instructor for the class. The Lee Combs, was employee of Virginia Power. During lunch hour on May 24, 1994, in the aerobics class and, while doing so, developed a severe headache. The aerobics instructor assisted Combs lying down and then called Virginia Power's Employee Health Services (EHS), as had been instructed to do by the EHS coordinator health The EHS receptionist answered informed Robinson, EHS coordinator of administrative support, that someone in the class had a headache and needed some medication. Shortly thereafter, Robinson went to the aerobics room to determine what was regard Combs. When head pain did subside, she was taken to the EHS "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the is to be checked at regular intervals. After she went to the room," Combs was not examined any medical or emergency personnel, was her condition regularly monitored by anyone. Approximately two hours after Combs entered the "quiet room," Robinson checked on Combs and discovered that Combs had vomited on herself and was in a coma-like state. Robinson then called security. Combs was eventually ambulance to the Medical College of Virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, an intraparenchymal hemorrhage. She subsequently underwent two neurological After release from the hospital, she entered rehabilitation center where received therapy her partial paralysis and cognitive brain damage. On April 30, 1996, Combs filed a motion for judgment against Power and four of its employees, alleging that the defendants her a duty to "have in place procedures, and to train ... personnel, so that employees using EHS could do so without harm to themselves and detriment to their well-being." Combs further asserted that the defendants breached these and were negligent by, inter alia, failing to properly train non-medical personnel working in EHS; failing to implement procedures to appropriate medical care to Power employees who seek treatment at especially when licensed professionals are and failing to provide proper medical and treatment when Combs suffered medical emergency, thereby leaving her unattended for approximately two hours before calling security and 281 a rescue squad. Finally, Combs alleged that the defendants' negligence caused her injury and damages.[2] In response, the defendants filed grounds of defense and a "Special Plea of Workers' Compensation Bar." In the special plea, they asserted that the of the Act, Code § 65.2-307, barred Combs' claim and therefore deprived the circuit court of subject matter jurisdiction over her claim.[3] Accordingly, the defendants asked court to After reviewing the parties' memoranda, the circuit court sustained the special plea and dismissed action with prejudice. a letter the court concluded that the aggravation and acceleration of Combs' pre-existing aneurysm "an injury accident arising out of and in course of her employment with" Virginia Power, and that her was therefore barred exclusivity provision of the Act. We awarded Combs this appeal. "An is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the of the employment." Richmond Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, critical inquiry this appeal is whether Combs' injury was (1) an injury by accident, (2) arising out of, (3) in the course of, her employment. See Code § 65.2-101; Briley v. Farm Inc., 240 Va. 194, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then Combs' claim not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. Thus, we will address each of these criteria seriatim. I. INJURY BY ACCIDENT This Court recently the requirements of an "injury by accident" in Southern Express v. 257 Va. 181, 509 S.E.2d 836 (1999). There, we held that an "injury accident" occurs when the injury appears "suddenly at a particular time and place[,] upon a particular occasion[;]" when it is "caused by an incident[,] or sudden precipitating event[;]" and when the injury results "in an obvious mechanical structural change in the human body." Id. at 187, 509 S.E.2d at 839. The circuit court found all these factors present with regard to Combs' injury, and agree. At the outset, it must emphasized that Combs' injury is the aneurysm itself. Instead, her injury the aggravation, exacerbation, and/or acceleration of aneurysm. That resulted from the alleged negligent emergency medical care, or lack thereof, that she received from Virginia Power and its EHS employees after she suffered a severe headache the class. Thus, Combs' argument that there is no evidence with regard to when the aneurysm initially started leaking or when she experienced onset of symptoms is irrelevant to the question whether she sustained an "injury by accident." The record in this case, in particular Combs' motion for judgment, demonstrates that she suffered "injury by accident" under Code § 65.2-101. The particular time, place, and occasion her was at the "quiet room" in Virginia Power's Richmond office, during two three hours that elapsed from when she developed the headache and was taken to the "quiet room" until she transported to the hospital. The identifiable or precipitating was the alleged negligent emergency medical treatment that she received during this span of Finally, Combs' paralysis and cognitive brain damage represent mechanical or structural changes her body that resulted 282 from her injury. Thus, all the requirements "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & 252 Neb. 560 N.W.2d 143, 149 (1997)(holding that negligent medical treatment employer's first-aid medical facility constitute "accident"). II. ARISING OF EMPLOYMENT The phrase "arising out of" pertains the origin or cause of an injury. County of Chesterfield v. Johnson, Va. 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 684, 686 determining whether an injury arises out of employment, we have repeatedly quoted with the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 215 Mass. 102 N.E. (1913). injury arises "out of" employment, when there is apparent to mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the	525 s.E.2d 278 (2000) lAurA leE COmBs V. vIRgInIa eLeCTriC & poweR cOmPanY, eT Al. rECORd nO. 990534. sUpreME cOUrT Of VIrgiNiA. maRch 3, 2000. 279 DaVID d. waLkEr (GeOrGe R. wALtOn, MeCHAniCSVIllE, on bRieF), For AppeLlanT. CASsAndra C. cOLLins (mICHAEl R. sHebelSKIe; andREW r. Park; gEorGE W. MaRGEt, 280 iIi; huntON & wiLLiamS, ON brieF), RICHmONd, fOR APpeLlEE. PrESENt: cARRiCo, c.j., coMPtOn,[1] LacY, HASsELL, keEnan, KOoNtZ, AND kInseR, JJ. kInseR, JuSTice. In thIs PErSONAl iNjury acTiOn, tHE SoLE questIon is WHeTher thE CiRcuit coUrT cOrrectlY rulED ThAt AN EmPLOyee's ExcLuSIVE remEdy agAInsT AN eMPlOYer iS UNder THe viRginIa WorkErs' CoMpENsATIOn aCT (THe act), CODE §§ 65.2-100 ThrOugh -1310. becauSe we cONcluDe tHAt The emplOyeE sufferED AN "iNjuRY By AcciDent ARIsing OUT of AND In The coursE Of . . . eMpLOYMENT," COde § 65.2-101, we wIlL affiRm tHe ciRCuIT COURt's JUDgMenT SusTaiNInG thE eMpLOyeR's SpECIaL PlEA IN bar. fACTs and proCeedIngS virGiNiA elECtrIC aNd pOWEr ComPaNy (VIRGinIa PoWEr) ArRaNGeD FoR aN iNdEPEnDENT iNstruCToR To TEaCh an AeroBics cLAss at iTs RiCHmoND oFFicE For tHe BEnefIt Of its emplOyEes. PArTIciPAtiON In ThE ClASs by ViRGiniA Power's EmPLoYeEs was voLUntAry. VIRgINiA poWEr adVERTisED tHe CLAsS On itS bULlEtiN boarDS AND IN ITS NeWSlETTER. It Did Not cHArgE fOr thE UsE OF ITS FaCIliTY, buT pArtICIpATInG EmploYEES WERE REQuIRed to paY a feE TO tHe iNsTRucToR foR The cLaSs. The pLAiNTIff, LaurA lEe COMBS, was An eMPLOyEe OF vIRGinia POWEr. DUrINg HEr lUNcH HOuR On mAY 24, 1994, combS PARtiCIPateD In THe AERobicS ClASS And, whiLE DoIng SO, dEvElOPEd a Severe hEadAChE. THE AErObiCS INsTRuCtor aSSISTed cOMbs iN lying DowN And theN CALlED virGINiA pOwER'S eMPloYeE hEALtH SerViCES (eHs), As SHe HAD been INsTRUcTEd tO dO BY THe Ehs CoORDinAtor OF heALth PRogrAmS. THE ehS REcepTiOnIsT anSWeREd THe Call aND iNForMeD ShArOn rObinSON, Ehs cOoRDInAtOR oF ADMiNIStRAtIVe suPPoRt, thaT sOmeoNE IN THE AeRObiCS ClaSs Had a HeaDACHE AND needeD some MediCATION. sHortLY tHEreaftEr, ROBinSon WENt TO The aeROBIcS rOom To detErMInE WhAT WAs hAPpEninG WiTH REGARd tO cOmBs. whEN coMbS' HEaD pAIN DiD nOT SUBsIde, SHe wAS TaKeN to thE eHS "QuIeT rOOM" TO rEst. THE "QuiET rOOM" IS UseD by eMPLOYeEs WHo Become ill at WOrK, or bY ReCUpeRAtING emPLoYEES wHo HavE ReTuRNed To WOrk AfTER AN ACCiDeNt oR ILlneSs and neED To RESt dURING THe wOrKdaY. WhEN AN EMpLOyEe IS USINg tHe roOM, AN ehs sTafF membeR IS reQUiReD to BE In tHE OFFiCe, anD tHE EmPlOYEe IS To bE cheCked AT rEGulAr interVAlS. aFteR ShE wEnt tO ThE "QuIEt ROom," COmBs was nOt exAMINEd BY ANy MedICal Or eMergeNcY PeRsOnNEl, Nor wAS HEr cOnDiTiON RegularLY monitorED bY AnYOnE. ApPROxImAtelY TwO HouRS after CombS EnTered THE "QuIeT rOOM," rOBinSON chEcked on coMBS aND diSCovEReD THAT cOmBs HAd voMiteD oN HErselF aNd WAs iN a ComA-liKE STaTe. rObINsON Then CALLED sEcuRiTY. COMbS Was EVenTuaLLY TRANspOrtEd by AmbulaNCE to tHE mEDiCal COLlEgE Of vIrgINiA WheRE SHe WAs DIagNOsEd witH INtRAcranIaL BleEding, a rIghT Giant mIDdle cErebrAL ANEURySM, AnD An iNTRaParencHYmAL heMoRrHaGe. sHE SuBsEQuenTlY UNDErweNT two nEuRoLogICAl OPerATiOnS. AFter rELeasE FRom thE hOSPITal, SHE EntEReD A rEHAbilitatIOn CENtEr WhEre SHe RECeiVED TheRapy FoR her PARTIal pAralYSiS and cogNitiVE brAin DamagE. oN ApriL 30, 1996, COMBS fiLEd A moTIon fOR JudgMENt aGaINST VIrgiNiA power AND FOUR oF iTS eMPlOyEes, AllegING ThAT ThE deFEnDANTS OWed her A DUTY TO "HAvE iN PlACe PrOPER prOceDURes, ANd tO pRoPerly TRAiN ... pErSOnNEL, SO THAT empLoYeeS usInG EhS coULD DO SO WItHout hArm tO themSELvES ANd deTrImenT To THEiR WEll-BeiNG." combS furTHeR aSsErTeD tHat ThE DEfenDants BrEACHED ThesE dutIES anD weRe NEGliGEnT By, InTEr alIA, fAilIng to proPerLy TraIN NON-MeDiCAL peRsOnNEL woRkinG IN eHS; FaiLIng tO iMPLEMeNt pROCEDUreS TO ProViDe apPropriATE mEdiCaL CArE To ViRgINiA PowER EMpLoyEES whO SeEk tREAtmenT At ehs, esPecIally WhEN lIcENsed HEaLtHCAre PrOfesSiONaLS are uNAvaiLaBle; aND FAIlinG tO pROvIDE PrOPeR MedICAl CARe And tReatMEnt wHEN COmBS SuFFerED a MeDIcAL eMeRgeNCy, theReby LeaviNg HEr UNatTENdeD fOr aPpROxIMAtely Two HOUrs BEFoRe CaLLING sEcUriTY aND 281 a rEScue squAD. FInAlly, CoMBS ALlEgED thAT The DefEndAnTs' NEgligence pROxImatELy CAUSeD HER injury aNd dAmages.[2] IN REspOnsE, The defenDAnts filED GROuNDs Of dEfENse aNd A "specIaL pLEA of WORKERs' compEnsATIon BaR." iN the sPECiAL pleA, tHeY aSSErtEd that ThE excLuSiviTY ProVisiOn Of The ACt, COde § 65.2-307, barred COmBs' ClAim and tHEReforE dePRiVeD THE CIrcUIt coUrT of SUBjEct matTer juRIsdiction over Her CLAIM.[3] aCcoRdiNGLy, the DeFenDAnTS AskeD THe CourT TO DiSmISS coMbS' ACTIon. AFTER rEVIeWING THe parTiEs' MEmOrANDA, the CIrcUiT CouRt SuSTaIneD the speCIAl PLeA anD DisMiSseD ComBs' aCTIoN wiTh prEJUDICe. iN A leTTer oPiNION, The couRt COnCludeD THAT the agGRavaTION ANd AcCElerAtIoN Of combS' PrE-ExIStInG AnEuRySm wAS "AN INjURy bY acCIdent ArISIng oUt OF aND in the CoURsE oF heR eMpLOYMEnT wITH" ViRgInIA pOWER, AND thAT her ActioN Was thErEFoRE barRED bY tHE exclUSivitY proVISIoN oF The ACT. WE AwARDed cOmBS THiS appEal. analySiS "aN iNjuRY iS SUBjeCT To The eXcLusIvitY PrOvIsion oF THE aCt if iT Is THe reSULt Of aN ACcidENt anD arIseS OUT Of AND In THe COuRSE of thE EMPlOyMent." rIChMONd NEwSPApeRS, InC. V. hAzelwOOD, 249 vA. 369, 372, 457 S.e.2D 56, 58 (1995). tHUs, The CrITicAl InqUIRy in this APpeaL Is wHetheR coMBS' Injury WAS (1) aN inJury By aCcidEnT, (2) aRiSIng oUt OF, (3) anD IN THE cOuRSe Of, Her EmPlOymenT. sEe COdE § 65.2-101; BRiley v. FaRM fRESH, Inc., 240 vA. 194, 197, 396 S.e.2d 835, 836 (1990). if aNY oNE Of thEse ELEMeNTS iS MiSsING, thEn cOMBs' ClAiM Is NOT covErEd bY The aCt, sNEaD v. hArbaUGH, 241 Va. 524, 526, 404 s.e.2d 53, 54 (1991), and she cAn pRoCeED wiTh hEr peRSONal iNJuRy CLAIM in tHE ciRCuIT COURt. ThuS, WE WILl addRESs eACH oF ThESE cRIterIa SEriatIm. i. INjurY By accidEnt ThiS CoUrt rECEntLY aDDrEsseD thE ReQuiREMEnTs Of aN "inJuRy BY AccIDeNt" iN SoUtHERn exPrESs V. grEeN, 257 vA. 181, 509 s.E.2D 836 (1999). THerE, We HELd tHaT aN "INJuRY bY aCCidEnT" oCCuRS wheN tHe injurY appeArS "suddENLy aT A PARticULaR Time and plAcE[,] AnD uPon A PArTIcULaR oCCasioN[;]" WHen it IS "cAuseD bY an iDEntiFiAbLe INcIdenT[,] oR sUDden PreCIpitATInG EVeNt[;]" and whEn tHe INjuRy ReSuLTs "in an OBvious MeCHanICal or stRUCTUrAl CHANGE IN ThE HuMAn bODy." Id. aT 187, 509 S.E.2D At 839. the cirCuiT COUrt fOunD ALL tHEsE fACTOrS preSeNT WitH reGard To COmbS' InjurY, and wE agreE. aT the oUtsEt, It muSt bE EmPhAsIZED tHAt COmBs' iNjuRy is nOt tHe ANEURYsM itSelF. InsTEAD, her iNJuRy is thE agGRAVaTIon, EXACERBAtiON, and/or AccelERAtiON of ThE ANeUrySm. tHaT iNjury rESULTED From the AlLeGED neGliGenT eMeRGENCy MEDICAl cArE, oR LAcK ThEREOF, ThAt shE rEcEiVEd FRoM VIrGinIa PoWER aND iTs eHS emPloYeES After SHe SUFFERed a SeVERE HEADACHe DuRinG tHE aEroBICs cLAsS. thUs, coMBs' aRGUMeNT tHaT THERe iS No EvIDENCe WITh regArd To whEN The aNEUrysm iniTiaLlY StartED lEaking or wheN she EXPeRieNced tHe fIRST OnSet OF SYMpToMS IS IrReLEVAnt TO The qUeStioN WHEThER sHe SUSTaINED AN "inJURY BY AccIdeNt." thE REcORd In This cASe, iN Particular CoMbS' MotiOn FOR JUDGMent, DeMonstraTeS that ShE SuFFERED an "InjurY bY AccIdent" UNDeR cOdE § 65.2-101. tHE PaRTiCUlAR timE, placE, anD oCCAsION Of heR inJURy WaS At THE eHs "QuIeT rOOM" IN vIRGiNia POWEr's RICHMONd oFfiCE, DURiNg tHE tWO To THReE HOurS THaT elApSed fRoM wHen ShE fIRSt dEVeLoped THE HEaDachE ANd wAs Taken tO THe "quIEt ROoM" uNTiL she WAs TRaNsPorTeD tO The HosPital. tHe idENTiFiAbLe OR pREciPiTAtinG EvENt WAS tHE aLLeGed neGligeNt eMergENcy meDicAl TReaTmENT tHat She receiveD DURING THis SPaN Of tIme. finALLY, COmbs' PARaLYsIs ANd cOGNiTiVE brain dAMAGe reprEseNt ThE MEChAnicAl oR sTruCtuRaL ChanGES In her bOdy THAt reSultED 282 fRom heR InJuRY. thus, ALl The ReQuiReMeNTs oF AN "InJUry By aCcIDENt" ArE PResenT in tHIS CAsE. sEe WInN v. GeO. A. horMeL & cO., 252 neB. 29, 560 N.w.2D 143, 149 (1997)(hoLDiNG thaT NEgLiGEnt MedICAl TrEaTMEnT AT EMployEr's fIrst-AId mEDiCal faciliTY maY coNsTitUte "AcCiDeNt"). Ii. aRisiNg oUt OF eMPLOYMent ThE pHRASE "aRISInG OUt OF" PErTaInS TO tHe OrigIn oR CAUSe oF aN inJURY. CouNTY Of cHeStERFieLD V. jOhnSON, 237 vA. 180, 183, 376 s.e.2D 73, 74 (1989); BRaDshAW V. aRONOviTCh, 170 VA. 329, 335, 196 S.e. 684, 686 (1938). IN deTErmINIng WhETHeR AN InJury ARISeS ouT oF eMpLoYMENT, wE haVE rePeaTedlY QuOtED WiTh aPpRovaL tHe TEST eNuncIaTeD iN in re empLOyerS' liaB. asSUr. COrP., Ltd., 215 mASS. 497, 102 N.E. 697 (1913). An INjUry aRises "out of" ThE EmplOyMenT, WhEN tHeRe is apparEnT TO THE RATiOnaL mINd UPOn COnsIDERaTION of All The CiRCUMStanCES, a CAusAL ConneCTion BeTweEN thE cONDitIONS unDER wHIch thE worK Is RequIreD tO BE pERFoRmED ANd tHE ReSulTINg iNJury. UNdER tHIS tEst, IF tHE InjUry cAN BE sEeN to HAVE folLowed AS A naTurAL INciDEnt of ThE WORK aNd tO havE BEEn ContEMPlATed by a reAsonAbLe PeRsoN fAmiliAR with ThE	525 S.E.2d 278 (2000) Laura Lee COMBS v. VIRGINIA ELECTRIC & POWER COMPANY, et al. RecordNo. 990534.Supreme Court of Virginia. March 3, 2000. 279 DavidD. Walker (George R. Walton, Mechanicsville, on brief), for appellant. Cassandra C. Collins (Michael R. Shebelskie; Andrew R. Park; George W. Marget, 280 III; Hunton & Williams,on brief),Richmond, for appellee. Present: CARRICO, C.J., COMPTON,[1] LACY, HASSELL, KEENAN, KOONTZ, and KINSER,JJ. KINSER, Justice.In this personal injury action, the sole question is whetherthe circuit courtcorrectly ruledthat an employee's exclusive remedyagainst an employer is under the Virginia Workers' Compensation Act (theAct), Code§§ 65.2-100through -1310. Because we conclude that the employee suffered an "injury by accident arising out ofand in the course of . . . employment,"Code § 65.2-101, we will affirm the circuit court's judgment sustainingthe employer'sspecial plea in bar. FACTS ANDPROCEEDINGS Virginia Electricand Power Company (VirginiaPower) arrangedfor an independent instructor to teachan aerobics class at itsRichmond office for the benefitof its employees.Participation in the class by VirginiaPower's employees wasvoluntary.Virginia Power advertised the class onits bulletin boards and in its newsletter.It did not chargeforthe useof its facility, but participating employeeswere required to pay a fee to the instructor for the class. The plaintiff, Laura Lee Combs, wasan employee of Virginia Power. During her lunch hour on May 24, 1994, Combs participated in the aerobics class and, while doing so,developed asevere headache. The aerobics instructor assisted Combsin lying down and then called Virginia Power's Employee Health Services (EHS),as shehad been instructed to do by the EHS coordinator of health programs.TheEHSreceptionist answered thecall and informed Sharon Robinson,EHS coordinator of administrative support,that someone in the aerobics class had a headache and needed some medication. Shortlythereafter, Robinson went to the aerobics roomto determine whatwas happening with regard to Combs. When Combs' head pain did not subside, she was taken to the EHS "quiet room" to rest. The"quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after anaccidentor illness and need to rest during theworkday. When an employee isusing theroom, an EHSstaff member is required to be in the office, and the employee is to bechecked at regularintervals. After shewent to the "quiet room,"Combs was not examined by any medical or emergency personnel, nor was her condition regularly monitored by anyone.Approximately two hoursafter Combs entered the "quiet room," Robinson checked on Combs and discovered thatCombs had vomited on herself and was in a coma-like state. Robinson then called security. Combs was eventually transportedby ambulanceto the MedicalCollegeof Virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymalhemorrhage. She subsequently underwent two neurologicaloperations. After release from the hospital, sheentereda rehabilitation center where she received therapy for her partial paralysisand cognitivebrain damage.OnApril 30, 1996, Combs filed a motion for judgment against Virginia Power and four ofits employees, alleging that the defendants owed her a duty to "have in placeproper procedures, and to properly train... personnel, sothat employees using EHS could do sowithout harm tothemselves anddetriment to their well-being." Combs further assertedthat the defendants breached these duties and were negligent by, inter alia,failing to properly train non-medical personnel working inEHS; failingto implement procedures to provide appropriate medical careto Virginia Poweremployees who seek treatment at EHS, especially when licensed healthcare professionals are unavailable; and failing toprovide proper medical care and treatment when Combs suffered a medicalemergency, thereby leaving her unattended for approximately twohours before calling security and 281 a rescue squad. Finally, Combs alleged that the defendants'negligenceproximately caused her injury anddamages.[2] In response, the defendants filed grounds of defense anda "Special Plea ofWorkers' Compensation Bar."In the special plea, they asserted that the exclusivity provisionof the Act, Code § 65.2-307, barred Combs' claim and therefore deprivedthe circuit court of subject matter jurisdiction over her claim.[3]Accordingly, thedefendants asked the courtto dismiss Combs' action. After reviewing the parties' memoranda, the circuit court sustained the special plea anddismissed Combs' action with prejudice. Ina letter opinion,thecourt concluded that the aggravation and acceleration of Combs' pre-existing aneurysm was "an injury byaccident arising out of and in the courseof her employment with" VirginiaPower,and that her actionwas therefore barred by theexclusivity provision of the Act. Weawarded Combs this appeal. ANALYSIS "An injury is subject to the exclusivity provision of the Act if it is theresult of an accident andarises out of and in the course of the employment."RichmondNewspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457S.E.2d 56, 58 (1995). Thus, the critical inquiry in this appeal is whether Combs' injury was (1) an injury byaccident, (2) arising out of, (3) and in the course of, her employment. See Code § 65.2-101;Briley v.Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any oneof these elements ismissing, then Combs' claim is not covered by the Act, Snead v.Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. Thus, we will address each of these criteria seriatim.I. INJURY BY ACCIDENT ThisCourt recently addressed the requirements of an "injuryby accident" in Southern Express v.Green, 257 Va.181,509S.E.2d 836 (1999).There,we held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident[,] or suddenprecipitating event[;]" and when the injury results "inan obvious mechanical or structural change in the human body." Id.at 187,509 S.E.2dat 839. The circuit court found all these factors present with regard toCombs' injury,andwe agree. At the outset, it must be emphasizedthat Combs' injury is not the aneurysm itself. Instead, her injury is the aggravation, exacerbation,and/or acceleration of the aneurysm. That injury resulted from the alleged negligent emergency medical care,or lack thereof, that shereceived from VirginiaPower and its EHS employees after she suffereda severe headache during the aerobics class. Thus, Combs' argument that there is no evidence with regardto when the aneurysm initially started leaking or when she experienced the first onset ofsymptoms is irrelevant to the question whether she sustained an "injury byaccident." The record in this case, in particular Combs' motion for judgment, demonstrates that shesuffered an "injury by accident" under Code § 65.2-101.The particular time, place,and occasion of her injurywas at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsedfrom when she first developed the headache and was takento the "quiet room"until she wastransported tothe hospital. The identifiable or precipitating event was the alleged negligent emergencymedicaltreatment that she received duringthis span of time. Finally,Combs' paralysisand cognitive brain damage represent the mechanical or structuralchanges in her body that resulted 282 from her injury. Thus, all the requirements of an "injury by accident"are present in this case. See Winn v. Geo. A. Hormel &Co., 252 Neb. 29, 560 N.W.2d 143, 149 (1997)(holding that negligent medical treatment at employer's first-aid medicalfacility may constitute "accident"). II. ARISING OUT OF EMPLOYMENT The phrase "arising out of"pertains tothe origin or cause ofan injury. County of Chesterfield v. Johnson, 237Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, we have repeatedly quoted with approval the test enunciated inIn re Employers'Liab.Assur. Corp., Ltd., 215 Mass. 497, 102N.E. 697 (1913). An injury arises "out of"the employment, when there is apparentto the rational mind upon consideration of all the circumstances, a causal connectionbetween the conditions under which the work is required to be performed and the resulting injury.Underthis test, if the injurycan be seen to have followed as anatural incident of the work and to have been contemplated bya reasonable person familiar with the	525 S.E.2d 278 (2000) Laura _Lee_ _COMBS_ v. _VIRGINIA_ ELECTRIC & POWER COMPANY, et al. Record No. 990534. Supreme Court of Virginia. _March_ 3, 2000. 279 David D. _Walker_ (George R. Walton, Mechanicsville, on brief), for appellant. Cassandra C. _Collins_ (Michael R. Shebelskie; Andrew _R._ Park; _George_ W. Marget, 280 _III;_ Hunton & Williams, on _brief),_ Richmond, _for_ appellee. Present: CARRICO, C.J., _COMPTON,[1]_ LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ. KINSER, _Justice._ _In_ this personal injury action, the sole question is whether the circuit court correctly _ruled_ that an employee's _exclusive_ remedy against an _employer_ is under the Virginia Workers' Compensation Act (the Act), Code §§ 65.2-100 through -1310. Because we _conclude_ that _the_ employee _suffered_ an "injury by accident arising _out_ of and in the course of . . . employment," Code § 65.2-101, we will affirm the circuit court's judgment sustaining the employer's special plea _in_ bar. FACTS AND PROCEEDINGS Virginia Electric _and_ Power _Company_ (Virginia Power) _arranged_ for an independent _instructor_ to teach _an_ _aerobics_ _class_ _at_ its _Richmond_ _office_ for the _benefit_ of _its_ _employees._ Participation in the class by Virginia Power's employees was voluntary. Virginia Power advertised the class on _its_ bulletin _boards_ and in its _newsletter._ It did not _charge_ for the _use_ _of_ its _facility,_ but participating employees were required _to_ pay _a_ fee to the instructor for _the_ _class._ The plaintiff, Laura Lee Combs, was an employee of Virginia Power. During her lunch hour on May 24, 1994, Combs participated in _the_ aerobics class and, while doing so, _developed_ a severe headache. The aerobics instructor assisted Combs in lying down and then called Virginia _Power's_ Employee Health Services (EHS), as she _had_ been instructed to do by _the_ EHS coordinator of health programs. _The_ EHS _receptionist_ answered the call and informed Sharon Robinson, _EHS_ coordinator of administrative support, that someone _in_ the aerobics _class_ had a headache and needed _some_ medication. Shortly thereafter, Robinson went to the aerobics _room_ to determine what was happening with regard to Combs. When Combs' head pain _did_ not subside, she was _taken_ to the EHS _"quiet_ room" _to_ rest. The "quiet room" is used _by_ employees who become ill at _work,_ _or_ by recuperating _employees_ who have returned to _work_ after an accident _or_ _illness_ and need to rest _during_ the workday. When an _employee_ is using the _room,_ an EHS staff member is required to be in the office, and the _employee_ _is_ to _be_ checked at regular intervals. After she went _to_ the _"quiet_ room," Combs was _not_ _examined_ _by_ any _medical_ or emergency personnel, nor was her condition regularly monitored by anyone. Approximately two hours after _Combs_ entered the "quiet room," Robinson checked on Combs and discovered that Combs had vomited on herself and _was_ in a coma-like state. Robinson _then_ called security. Combs was eventually transported by ambulance to the Medical College of Virginia where she was diagnosed with intracranial bleeding, a right _giant_ middle cerebral aneurysm, and _an_ intraparenchymal _hemorrhage._ She _subsequently_ _underwent_ _two_ neurological operations. After release from _the_ _hospital,_ _she_ entered a rehabilitation center _where_ she received therapy for _her_ partial paralysis and cognitive brain damage. _On_ _April_ 30, 1996, Combs _filed_ a _motion_ for judgment against Virginia Power and _four_ of its employees, alleging that the defendants _owed_ her a duty to "have _in_ place proper procedures, and to properly train ... personnel, so that _employees_ _using_ EHS could do so without harm to _themselves_ and _detriment_ to their well-being." Combs _further_ _asserted_ that the defendants _breached_ these duties _and_ were _negligent_ _by,_ _inter_ alia, failing to properly train _non-medical_ personnel working _in_ EHS; failing to implement procedures to provide appropriate _medical_ care to Virginia Power _employees_ who _seek_ treatment at _EHS,_ especially when licensed healthcare professionals are unavailable; and failing to provide proper _medical_ care and treatment when Combs suffered a _medical_ emergency, thereby leaving _her_ unattended for approximately _two_ hours before calling security and _281_ _a_ rescue squad. Finally, Combs alleged that _the_ _defendants'_ negligence proximately caused _her_ injury and damages.[2] _In_ response, the _defendants_ _filed_ grounds of defense and a "Special Plea of _Workers'_ Compensation Bar." In _the_ special plea, they _asserted_ that _the_ exclusivity provision of the Act, _Code_ § 65.2-307, barred Combs' claim and therefore deprived the circuit court of _subject_ matter jurisdiction over her claim.[3] _Accordingly,_ the defendants asked _the_ _court_ _to_ dismiss Combs' action. After _reviewing_ the parties' memoranda, the circuit court sustained the special plea and dismissed Combs' action with prejudice. In a letter _opinion,_ the _court_ concluded that the aggravation and acceleration of _Combs'_ pre-existing aneurysm was "an injury _by_ accident arising out of and in the course of _her_ employment with" Virginia Power, and that _her_ action was therefore _barred_ by _the_ exclusivity provision _of_ the Act. We awarded _Combs_ this appeal. ANALYSIS "An injury is subject to the exclusivity _provision_ of the _Act_ if it is the result _of_ an accident and arises out _of_ and in the course of the _employment."_ Richmond Newspapers, Inc. v. Hazelwood, _249_ Va. _369,_ 372, _457_ _S.E.2d_ 56, 58 (1995). _Thus,_ the _critical_ inquiry in this _appeal_ _is_ _whether_ Combs' injury was (1) an injury by accident, _(2)_ arising out of, _(3)_ _and_ in the course _of,_ her employment. See _Code_ § 65.2-101; Briley v. _Farm_ Fresh, Inc., 240 Va. _194,_ 197, 396 S.E.2d 835, _836_ (1990). If any one of _these_ elements _is_ missing, then _Combs'_ claim is not covered by the Act, _Snead_ v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her _personal_ _injury_ claim in _the_ circuit _court._ _Thus,_ we will address _each_ of these criteria seriatim. I. INJURY BY ACCIDENT This Court _recently_ _addressed_ the _requirements_ of an "injury by accident" _in_ Southern Express v. _Green,_ _257_ Va. 181, 509 S.E.2d _836_ (1999). There, we _held_ that an "injury by accident" occurs when the _injury_ appears "suddenly _at_ _a_ particular time and place[,] and upon a particular _occasion[;]"_ _when_ it is "caused _by_ an identifiable _incident[,]_ _or_ sudden precipitating event[;]" and _when_ the injury results "in an obvious mechanical or structural change in the human _body."_ Id. at _187,_ 509 S.E.2d at 839. The circuit court found all these factors present with regard to Combs' injury, and we agree. _At_ the outset, _it_ must be emphasized that Combs' injury is not the aneurysm itself. Instead, _her_ injury is _the_ aggravation, _exacerbation,_ and/or acceleration of _the_ aneurysm. That injury resulted from the alleged negligent emergency medical _care,_ or _lack_ thereof, that she received _from_ Virginia Power and its _EHS_ employees after she suffered a severe headache during the aerobics class. Thus, Combs' _argument_ that there _is_ no evidence _with_ regard to when the _aneurysm_ initially started leaking or when she experienced _the_ first _onset_ of symptoms _is_ irrelevant to the question whether she sustained an "injury by accident." The record in _this_ case, _in_ _particular_ _Combs'_ motion for judgment, demonstrates that she _suffered_ an "injury by accident" _under_ _Code_ _§_ 65.2-101. The particular _time,_ place, _and_ occasion of her injury was at the EHS "quiet _room"_ in _Virginia_ _Power's_ Richmond office, _during_ _the_ _two_ to three hours that elapsed from when she first developed the headache and _was_ taken to the "quiet _room"_ until she _was_ transported to the hospital. The identifiable or precipitating event _was_ the alleged negligent emergency medical treatment that _she_ _received_ during _this_ span of time. _Finally,_ _Combs'_ paralysis _and_ _cognitive_ brain damage represent the _mechanical_ or structural changes in _her_ body that resulted 282 from her injury. Thus, all _the_ requirements _of_ _an_ _"injury_ by accident" are present in this case. See Winn v. Geo. A. Hormel & _Co.,_ 252 Neb. 29, 560 _N.W.2d_ 143, 149 (1997)(holding that negligent medical treatment at employer's first-aid medical facility may _constitute_ "accident"). II. ARISING OUT OF _EMPLOYMENT_ The phrase "arising out of" _pertains_ to the origin _or_ cause of an injury. County of Chesterfield v. Johnson, _237_ Va. 180, _183,_ 376 S.E.2d 73, 74 (1989); Bradshaw _v._ Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an _injury_ arises out of employment, we have repeatedly quoted with approval the test enunciated in In re _Employers'_ Liab. Assur. Corp., Ltd., 215 Mass. 497, 102 _N.E._ 697 (1913). An injury _arises_ "out of" the _employment,_ when there _is_ apparent to the rational mind _upon_ consideration of all _the_ circumstances, a causal connection _between_ the _conditions_ under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as _a_ natural incident of the work and to have been contemplated by a reasonable person familiar with the
766 F.Supp.2d 797 (2011) In the Matter of the COMPLAINT OF PRIDE OFFSHORE, INC., as Owner of the J/U Pride Wyoming for Exoneration from, or Alternatively, Limitation of Liability. Civil Action No. H-08-3109. United States District Court, S.D. Texas, Houston Division. February 2, 2011. 798 MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This maritime dispute arises out of damage allegedly caused when a jack-up rig, the PRIDE WYOMING, detached from its moorings during Hurricane Ike in September 2008. Pride Offshore, Inc.,[1] the rig owner, filed a complaint in exoneration or alternatively for limitation of liability, (Docket Entry No. 1), and Century Exploration New Orleans, Inc. filed a claim, (Docket Entry No. 47). Pride Offshore moved for summary judgment, arguing that the economic-loss rule precludes Century Exploration's claim. (Docket Entry No. 75). Century Exploration responded with a different theory and asked for leave to amend. (Docket Entry No. 77). Pride Offshore replied, arguing that this court should grant its motion for summary judgment and deny Century Exploration's motion to amend as futile. (Docket Entry No. 78). For the reasons explained below, this court grants Pride Offshore's motion for summary judgment, but to the extent the motion was based on a challenge to the sufficiency of the claim allegations, Century Exploration is granted leave to amend. An amended complaint must be filed by February 25, 2011. I. Background The PRIDE WYOMING was a 250-foot mat slot jack-up rig operating in the Gulf 799 of Mexico. (Docket Entry No. 1 ¶ 4). When Hurricane Ike struck in September 2008, the rig was located in Ship Shoal Block 283, about 90 miles south of Houma, Louisiana. (Id. ¶ 5). The hurricane blew the rig off its location, causing it to sink. (Id. ¶ 6). Parts of the PRIDE WYOMING's wreckage settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company (TGPS). (Id. ¶ 7). Pride Offshore filed this complaint on October 20, 2008. (Docket Entry No. 1). On August 18, 2009, Century Exploration filed its claim, alleging that part of the wreckage from the PRIDE WYOMING "struck and damaged pipelines that interfered with Century's operations and necessitated repairs. Century had property interests in one such pipeline and contributed to its repairs." (Docket Entry No. 47, ¶ 3). Century Exploration claimed approximately $21 million in damages "caused solely by, and ... wholly due to, the unseaworthiness of the J/U Pride Wyoming, the negligence of her master and crew, and the negligence of her owners and operators." (Id. ¶¶ 5-6). On January 11, 2010, Century Exploration amended to add allegations of recklessness and intentional misconduct. (Docket Entry No. 63 ¶ 5). Neither version of the claim alleged that Century Exploration was aware of Pride Offshore's contract to use the TGPC pipeline. Pride Offshore argues that summary judgment is appropriate for two reasons. The first is that Century Exploration's amended claim is insufficient because it fails to allege that Pride Offshore knew of Century Exploration's contract with TGPC. The second is that Century Exploration lacks evidence of a proprietary interest in the pipeline that would support economic-loss damages for negligence. II. Analysis A. The Legal Standards Pride Offshore's motion concerns the application of the Robins Dry Dock rule. In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), the Supreme Court overturned a verdict in favor of the plaintiffs for breach of contract based on damage to a third party's property. "Their loss arose only through their contract with the owners and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong." Id. at 308-09, 48 S.Ct. 134 (citations omitted). "Although criticized from time to time, Robins Dry Dock remains good law." Allders Int'l Ltd. v. United States, No. 94 CIV. 5689(JSM), 1995 WL 251571, 2 (S.D.N.Y. Apr. 28, 1995). "The Fifth Circuit continues to apply the Robins Dry Dock principle to most maritime cases, carving out an exception only for cases involving a collision between two vessels not in privity of contract." Norwegian Bulk Transport A/S v. Int'l Marine Terminals Partnership, 520 F.3d 409, 412 (5th Cir.2008) (citing Amoco Transport Co. v. S/S MASON LYKES, 768 F.2d 659 (5th Cir.1985)). "Since the Amoco Transport decision, the Fifth Circuit ... has not recognized exceptions to the rule in Robins Dry Dock outside of the context of collision cases." Id. at 413 (citations omitted). The first ground Pride Offshore asserts in moving for summary judgment rests on the sufficiency of Century Exploration's amended complaint. "[A] summary-judgment motion may be made on the basis of the pleadings alone, and if this is done it 800 functionally is the same as a motion to dismiss for failure to state a claim ...." 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2713, at 222-23 (3d ed. 1998) (citations omitted). A complaint may be dismissed under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Twombly abrogated the Supreme Court's prior statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 562-63, 127 S.Ct. 1955 ("Conley's `no set of facts' language... is best forgotten as an incomplete, negative gloss on an accepted pleading standard...."). To withstand a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court explained that "the pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) ("[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal."); see also United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004) ("Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is considered an abuse of discretion." (internal citation omitted)). However, a plaintiff should be denied leave to amend a complaint if the court determines that "a proposed amendment ... clearly is frivolous, advancing a claim or defense that is legally insufficient on its face ...." 6 WRIGHT, MILLER & KANE § 1487, at 732-33; see also Ayers v. Johnson, 247 Fed.Appx. 534, 535 (5th Cir.2007) (un	766 f. supp. 2d 797 ( 2d ) in the matter of the complaint of pride offshore, inc., as owner of the j / u pride wyoming prevented exoneration from, or alternatively, limitation of liability. civil action no. h - 08 - 3109. united states district court, s. d. texas, houston division. february 2, 2011. * 798 memorandum in order lee h. rosenthal, district judge. this maritime dispute arises out of damage allegedly caused when a jack - up rig, the pride creek, detached from its moorings during hurricane ike in september 2008. pride offshore, inc., [ cf ] the rig owner, filed a complaint in exoneration or alternatively for limitation of liability, ( docket entry no. 56 ), and century exploration new orleans, inc. filed a claim, ( docket entry no. 47 ). pride offshore moved for summary judgment, arguing that the economic - loss rule precludes century exploration ' s claim. ( docket entry no. 75 ). century exploration responded with a different theory and asked for leave to amend. ( docket entry no. 77 ). pride offshore replied, arguing that this court should grant its motion for summary judgment and deny century exploration ' s motion to amend as futile. ( docket entry no. 78 ). for the reasons explained below, this court grants pride offshore ' s stay for summary judgment, but to the extent the motion was based on a challenge to the sufficiency of the claim allegations, century exploration is granted leave to amend. an amended complaint must be filed by february 25, 2011. i. background the pride wyoming was a 250 - foot mat slot jack - up rig operating within the gulf * 799 of mexico. ( docket entry no. 1 ¶ 4 ). when hurricane ike struck in september 2008, the rig was located in ship shoal block 283, about 90 miles south of houma, tx. ( id. ¶ 5 ). the hurricane blew the rig off its location, causing it to sink. ( id. ¶ 6 ). parts of the pride wyoming ' s crew settled on top of pipelines belonging to the williams companies, inc. and tennessee gas pipeline company ( tgps ). ( id. ¶ 7 ). pride offshore filed this complaint on october 20, 2008. ( docket entry no. 1 ). on august 18, 2009, century exploration filed its claim, alleging that part of the wreckage from the pride wyoming " struck and damaged pipelines that interfered with century ' s operations and necessitated repairs. century had property interests in one such pipeline and contributed to its repairs. " ( docket entry no. 47, ¶ 3 ). century exploration claimed approximately $ 21 million in damages " caused solely by, and... wholly due to, the unseaworthiness of the j / u pride wyoming, the negligence of her master and crew, and the negligence of her owners and operators. " ( id. ¶ ¶ 5 - 6 ). on january 11, 2010, century exploration amended to add allegations of recklessness and intentional misconduct. ( docket entry no. 63 ¶ 5 ). neither version of the claim alleged that century exploration was aware of pride offshore ' s contract to use the tgpc pipeline. pride offshore argues that summary judgment is appropriate for two reasons. the first is that century exploration ' s amended claim is insufficient because it fails to allege that pride offshore knew of century exploration ' s contract with tgpc. the second is that century exploration lacks evidence of a proprietary interest in the pipeline that would support economic - loss damages for negligence. ii. analysis a. the legal standards pride offshore ' s motion concerns the application of the robins dry dock rule. in robins dry dock & repair co. v. flint, 275 u. s. 303, 48 s. ct. 134, 72 l. ed. 290 ( 1927 ), the supreme court overturned a verdict in favor of the plaintiffs for breach of contract based on damage to a third party ' s property. " their loss arose only through their contract with the owners and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort - feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. " id. at 308 - 09, 48 s. ct. 134 ( citations omitted ). " although criticized from time to time, robins dry dock remains good law. " allders int ' l ltd. v. united states, no. 94 civ. 5689 ( jsm ), 1995 wl 251571, * 2 ( s. d. n. y. apr. 28, 1995 ). " the fifth circuit continues to apply the robins dry dock principle to most maritime cases, carving out an exception only for cases involving a collision between two vessels not in privity of contract. " norwegian bulk transport a / s v. int ' l marine terminals partnership, 520 f. 3d 409, 412 ( 5th cir. 2008 ) ( citing amoco transport co. v. s / s mason lykes, 768 f. 2d 659 ( 5th cir. 1985 ) ). " since the amoco transport decision, the fifth circuit... has not recognized exceptions to the rule in robins dry dock outside of the context of collision cases. " id. at 413 ( citations omitted ). the first ground pride offshore asserts in moving for summary judgment rests on the sufficiency of century exploration ' s amended complaint. " [ a ] summary - judgment motion may be made on the basis of the pleadings alone, and if this is done it * 800 functionally is the same as a motion to dismiss for failure to state a claim.... " 10a charles alan wright, arthur r. miller & mary kay kane, federal practice and procedure § 2713, at 222 - 23 ( 3d ed. 1998 ) ( citations omitted ). a complaint may be dismissed under rule 12 ( b ) ( 6 ) for " failure to state a claim upon which relief can be granted. " fed. r. civ. p. 12 ( b ) ( 6 ). in bell atlantic corp. v. twombly, 550 u. s. 544, 555, 127 s. ct. 1955, 167 l. ed. 2d 929 ( 2007 ), and ashcroft v. iqbal, _ _ _ u. s. _ _ _, 129 s. ct. 1937, 173 l. ed. 2d 868 ( 2009 ), the supreme court confirmed that rule 12 ( b ) ( 6 ) must be read in conjunction with rule 8 ( a ), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief. " twombly abrogated the supreme court ' s prior statement in conley v. gibson, 355 u. s. 41, 45 - 46, 78 s. ct. 99, 2 l. ed. 2d 80 ( 1957 ), that " a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. " see twombly, 550 u. s. at 562 - 63, 127 s. ct. 1955 ( " conley ' s ` no set of facts ' language... is best forgotten as an incomplete, negative gloss on an accepted pleading standard.... " ). to withstand a rule 12 ( b ) ( 6 ) motion, a complaint must contain " enough facts to state a claim to relief that is plausible on its face. " twombly, 550 u. s. at 570, 127 s. ct. 1955 ; see also elsensohn v. st. tammany parish sheriff ' s office, 530 f. 3d 368, 372 ( 5th cir. 2008 ) ( quoting twombly, 550 u. s. at 570, 127 s. ct. 1955 ). the court explained that " the pleading standard rule 8 announces does not require ` detailed factual allegations, ' but it demands more than an unadorned, the - defendant - unlawfully - harmed - me accusation. " iqbal, 129 s. ct. at 1949 ( citing twombly, 550 u. s. at 555, 127 s. ct. 1955 ). when a plaintiff ' s complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under rule 15 ( a ) before dismissing the action with prejudice. see great plains trust co. v. morgan stanley dean witter & co., 313 f. 3d 305, 329 ( 5th cir. 2002 ) ( " [ d ] istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal. " ) ; see also united states ex rel. adrian v. regents of the univ. of cal., 363 f. 3d 398, 403 ( 5th cir. 2004 ) ( " leave to amend should be freely given, and outright refusal to grant leave to amend without a justification... is considered an abuse of discretion. " ( internal citation omitted ) ). however, a plaintiff should be denied leave to amend a complaint if the court determines that " a proposed amendment... clearly is frivolous, advancing a claim or defense that is legally insufficient on its face.... " 6 wright, miller & kane § 1487, at 732 - 33 ; see also ayers v. johnson, 247 fed. appx. 534, 535 ( 5th cir. 2007 ) ( un	766 F. Supp. 2d 797 (2011) In the Matter of the COMPLAINT OF PRIDE OFFSHORE, INC. , as Owner of the J / U Pride Wyoming for Exoneration from, or Alternatively, Limitation of Liability. Civil Action No. H - 08 - 3109. United States District Court, S. D. Texas, Houston DiviWiom. February 2, 2011. * 798 MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This maritime dispute arises out of damage allegedly caused when a jack - up rig, the PRIDE WYOMING, detached from its moorings during Hurricane Ike in September 2008. Pride Offshore, Inc. , [1] the rig owner, filed a complaint in exoneration or alternatively for limitation of liability, (Docket Entry No. 1 ), and Century Exploration New Orleans, Inc. filed a claim, (Docket Entry No. 47 ). Pride Offshore moved for summary judgment, arguing that the economic - loss rule precludes Century Exploration ' s claim. (Docket Entry No. 75 ). Century Exploration responded with a different theory and asked for leave to amend. (Docket Entry No. 77 ). Pride Offshore replied, arguing that this court should grant its motion for summary judgment and deny Century Exploration ' s motion to amend as futile. (Docket Entry No. 78 ). For the reasons explained below, this court grants Pride Offshore ' s motion for summary judgment, but to the extent the motion was based on a challenge to the sufficiency of the claim allegations, Century Exploration is granted leave to amend. An amended complaint must be filed by February 25, 2011. I. Background The PRIDE WYOMING was a 250 - foot mat slot jack - up rig operating in the Gulf * 799 of Mexico. (Docket Entry No. 1 ¶ 4 ). When Hurricane Ike struck in September 2008, the rig was located in Ship Shoal Block 283, about 90 miles south of Houma, Louisiana. (Id. ¶ 5 ). The hurricane blew the rig off its location, causing it to sink. (Id. ¶ 6 ). Parts of the PRIDE WYOMING ' s wreckage settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company (TGPS ). (Id. ¶ 7 ). Pride Offshore filed this complaint on October 20, 2008. (Docket Entry No. 1 ). On August 18, 2009, Century Exploration filed its claim, alleging that part of the wreckage from the PRIDE WYOMING " struck and damaged pipelines that interfered with Century ' s operations and necessitated repairs. Century had property interests in one such pipeloje and contributed to its repairs. " (Docket Entry No. 47, ¶ 3 ). Century Exploration claimed approximately $ 21 million in damages " caused solely by, and. .. wholly due to, the unseaworthiness of the J / U Pride Wyoming, the negligence of her master and crew, and the negligence of her owners and operators. " (Id. ¶ ¶ 5 - 6 ). On January 11, 2010, Century Exploration amended to add allegations of recklessness and intentional misconduct. (Docket Entry No. 63 ¶ 5 ). Neither version of the claim alleged that Century Exploration was aware of Pride Offshore ' s contract to use the TGPC pipeline. Pride Offshore argues that summary judgment is appropriate for two reasons. The first is that Cent Tr^ Exploration ' s amended claim is insufficient because it fails to allege that Pride Offshore knew of Century Exploration ' s contract with TGPC. The second is that Century Exploration laVke evidence of a proprietary int2resR in the pipeline that would support economic - loss damages for negligence. II. Analysis A. The Legal Standards Pride Offshore ' s motion concerns the application of the Robins Dry Dock rule. In Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303, 48 S. Ct. 134, 72 L. Ed. 290 (1927 ), the Supreme Court overturned a verdict in favor of the plaintiffs for breach of contract based on damage to a third party ' s property. " Their loss arose only through their contract with the owners and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man do3e not make the tort - feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. " Id. at 308 - 09, 48 S. Ct. 134 (citations omitted ). " Although criticized from time to time, Robins Dry Dock remains go0c law. " Allders Int ' l Ltd. v. United States, No. 94 CIV. 5689 (JSM ), 1995 WL 251571, * 2 (S. D. N. Y. Apr. 28, 1995 ). " The Fifth Circuit continues to apply the Robins Dry Dock principle to most maritime cases, carving out an exception only for cases involving a collision between two vessels not in privity of contract. " Norwegian Bulk Transport A / S v. Int ' l Marine Terminals Partnership, 520 F. 3d 409, 412 (5th Cir. 2008) (citing Amoco Transport Co. v. S / S MASON LYKES, 768 F. 2d 659 (5th Cir. 1985) ). " Since the Amoco Transport decision, the Fifth Circuit. .. has not recognized exceptions to the rule in Robins Dry Dock )utsid3 of the context of collision cases. " Id. at 413 (citations omitted ). The first ground Pride Offshore asserts in moving for summary judgment rests on the sufficiency of Century Exploration ' s amended complaint. " [A] summary - judgment motion may be made on the basis of the pleadings alone, and if this is done it * 800 functionally is the same as a motion to dismiss for failure to state a claim. .. . " 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2713, at 222 - 23 (3d ed. 1998) (citations omitted ). A complaint may be dismissed under Rule 12 (b) (6) for " failure to state a claim upon which relief can be granted. " FED. R. CIV. P. 12 (b) (6 ). In Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007 ), and Ashcroft v. Iqbal, ___ U. S. ___, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009 ), the Supreme Court confirmed that Rule 12 (b) (6) must be EeaE in conjunction with Rule 8 (a ), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief. " Twombly abrogated the Supreme Court ' s prior statement in Conley v. Gibson, 355 U. S. 41, 45 - 46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957 ), that " a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. " See Twombly, 550 U. S. at 562 - 63, 127 S. Ct. 1955 (" Conley ' s ` no set of facts ' language. .. is best forgotten as an incomplete, negative gloss on an accepted pleading standard. .. . " ). To withstand a Rule 12 (b) (6) motion, a complaint must contain " enough facts to state a claim to relief that is plausible on its face. " Twombly, 550 U. S. at 570, 127 S. Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff ' s lffic#, 530 F. 3d 368, 372 (5th Cir. 2008) (quoting Twombly, 550 U. S. at 570, 127 S. Ct. 1955 ). The Court explained that " the pleading standard Rule 8 announces does not require ` detailed factual allegations, ' but it demands more than an unadorned, the - defendant - unlawfully - harmed - me accusation. " Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U. S. at 555, 127 S. Ct. 1955 ). When a plaintiff ' s complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15 (a) before dismissing the action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F. 3d 305, 329 (5th Cir. 2002) (" [D] istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal. " ); see also United States ex rel. Adrian v. Regents of the Univ. of Cal. , 363 F. 3d 398, 403 (5th Cir. 2004) (" Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification. .. is considered an abuse of discretion. " (internal citation omitted) ). However, a plaintiff should be denied leave to amend a complaint if the court determines that " a proposed amendment. .. clearly is frivolous, advancing a claim or defense that is legally insufficient on its face. .. . " 6 WRIGHT, MILLER & KANE § 1487, at 732 - 33; see also Ayers v. Johnson, 247 Fed. Appx. 534, 535 (5th Cir. 2007) (un	766 F.Supp.2d 797 (2011) In the Matter the COMPLAINT OF PRIDE OFFSHORE, INC., as Owner of the J/U Pride for Exoneration from, Alternatively, Limitation of Liability. Civil Action No. H-08-3109. United States District Court, S.D. Houston Division. February 2, 798 MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This maritime dispute arises out damage allegedly caused when a jack-up rig, the PRIDE WYOMING, detached from moorings during Hurricane Ike in September 2008. Pride Offshore, Inc.,[1] the rig owner, filed a complaint in exoneration or for limitation of liability, (Docket Entry No. 1), and Century Exploration New Orleans, Inc. filed a claim, (Docket Entry 47). Pride Offshore moved for summary judgment, arguing that economic-loss rule precludes Century Exploration's claim. (Docket Entry No. 75). Century responded with different theory asked for leave to (Docket Entry No. Pride replied, arguing that this court should grant its motion for summary judgment and deny Century Exploration's motion to amend as futile. (Docket Entry No. 78). For the reasons explained below, this court grants Offshore's for summary judgment, but to the extent the motion was based on a challenge to the sufficiency of the claim allegations, Century Exploration is granted leave to amend. An complaint must be filed by February 25, 2011. I. Background The PRIDE WYOMING was a 250-foot mat slot jack-up rig operating the Gulf 799 Mexico. (Docket Entry No. 1 ¶ 4). When Hurricane struck in 2008, the rig was located in Ship Shoal Block 283, about 90 miles south of Houma, Louisiana. (Id. ¶ 5). The blew the rig off its location, causing it to sink. ¶ 6). Parts of PRIDE WYOMING's wreckage settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Pipeline Company (TGPS). (Id. 7). Pride Offshore filed this complaint October 20, 2008. (Docket Entry No. 1). On August 18, 2009, filed its claim, alleging that the wreckage from the PRIDE WYOMING "struck and damaged pipelines that interfered with Century's operations and necessitated repairs. had property interests in one such pipeline and contributed to its repairs." (Docket Entry No. 47, ¶ 3). Century Exploration claimed approximately $21 million in damages "caused solely by, and ... wholly to, the unseaworthiness of the J/U Pride Wyoming, the negligence of her master and and the negligence of her owners operators." (Id. ¶¶ 5-6). On January 11, 2010, Century Exploration amended to allegations of recklessness and intentional misconduct. (Docket Entry No. 63 version of the claim that Century Exploration was aware of Pride Offshore's contract to use the pipeline. Pride Offshore argues that summary judgment is appropriate for two reasons. The first is that Century Exploration's amended claim is insufficient because fails to allege that Pride Offshore knew of Century Exploration's contract with The second is that Century Exploration lacks evidence of a proprietary interest in the pipeline that would support economic-loss damages for negligence. II. Analysis A. The Legal Standards Offshore's motion concerns the application of the Robins Dry rule. In Robins Dry Dock & Co. v. Flint, U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), the Supreme Court overturned a verdict in favor of plaintiffs for breach of contract based on damage to a third party's property. "Their loss arose only through their with the owners and while intentionally to about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as general rule, at a tort to the person or property of man does not make the tort-feasor liable to another merely because injured was a contract with that other unknown to the doer of the wrong." Id. 308-09, 48 S.Ct. 134 (citations omitted). "Although criticized from time to time, Dry Dock remains good law." Allders Int'l Ltd. v. United States, No. 94 CIV. 5689(JSM), 1995 WL 251571, 2 Apr. 28, 1995). "The Fifth Circuit continues to apply the Robins Dry Dock principle most maritime cases, carving out an exception only for cases a between two vessels not in privity of contract." Norwegian Bulk A/S v. Int'l Marine Partnership, 520 F.3d 409, 412 (5th Cir.2008) (citing Amoco Transport Co. v. S/S MASON LYKES, F.2d 659 (5th Cir.1985)). "Since the Amoco Transport the Fifth Circuit ... has not recognized exceptions to the rule in Robins Dry Dock outside of the context of collision Id. at 413 omitted). The first ground Pride Offshore asserts in for summary judgment rests on the sufficiency of Century Exploration's amended complaint. "[A] summary-judgment motion may be made on the basis of the pleadings alone, and if this is done 800 functionally is the same as a to dismiss for failure to state a claim ...." 10A CHARLES ALAN WRIGHT, ARTHUR MILLER & MARY KAY KANE, FEDERAL PRACTICE AND § 2713, at 222-23 (3d 1998) (citations omitted). A complaint may be dismissed under Rule 12(b)(6) for "failure state a claim upon which relief can be granted." CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 Supreme confirmed that Rule 12(b)(6) must be read in conjunction with Rule which requires short and plain statement of the claim showing that the is entitled to relief." Twombly abrogated the Supreme Court's prior in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not dismissed for to state a claim unless it appears beyond doubt that the plaintiff prove set of facts in of claim which would entitle him to relief." See Twombly, 550 U.S. 562-63, 127 S.Ct. 1955 ("Conley's `no of facts' language... best forgotten as an incomplete, negative gloss on an accepted pleading standard...."). To withstand a Rule 12(b)(6) motion, complaint contain "enough facts to state a claim to relief that is plausible on face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 372 (5th Cir.2008) Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court explained "the pleading Rule 8 announces not require `detailed factual allegations,' but it more an unadorned, the-defendant-unlawfully-harmed-me Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). When a plaintiff's fails to a claim, the court should generally give the plaintiff at one chance amend the complaint under Rule 15(a) before dismissing the See Great Trust Co. Morgan Dean Witter & Co., 313 F.3d Cir.2002) ("[D]istrict courts often afford at least one opportunity to cure deficiencies before dismissing a case, unless it is clear the defects incurable or the plaintiffs advise the court that they unwilling or unable to amend in a manner that will avoid dismissal."); see also United States ex rel. v. of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004) ("Leave to amend should be freely given, and outright refusal to to amend without a justification ... considered an abuse of discretion." (internal citation omitted)). However, a plaintiff should be denied leave to amend a complaint if the court determines that "a proposed amendment ... clearly is frivolous, advancing claim or defense that is legally insufficient on its face ...." 6 WRIGHT, MILLER & KANE § 1487, at 732-33; see also Ayers Johnson, 247 Fed.Appx. 534, 535 (5th (un	766 F.suPp.2d 797 (2011) iN thE MatTer OF The CoMPlAiNT Of pRidE oFFsHORe, Inc., as owneR oF ThE j/u pRIde wyOmiNG FoR ExOnERAtiON frOm, OR aLteRNAtIvElY, LIMiTaTIoN oF LIaBIlITy. ciVIL aCtioN nO. H-08-3109. uNIteD STaTEs dIStRict CoUrT, s.d. TeXaS, HoustoN DiviSiOn. feBRuAry 2, 2011. 798 MeMoRaNdUM aNd ORDeR LeE h. ROSeNthAL, DIstrICT jUDGE. tHis MARiTImE DiSpUtE ARiSES Out Of Damage ALLegeDly caUSEd WHen a jAck-uP RIG, The PrIdE WyOmING, dEtAchED fRoM iTS MOoriNGS dURIng hurrICAne iKe IN sEptEMbeR 2008. Pride ofFShorE, iNc.,[1] ThE RiG owNEr, fIlED A cOMPLaint In exoneRATIOn or altERNAtIVely foR LImitatIOn oF LIabIlITy, (dOcKEt enTrY NO. 1), And ceNTuRY EXploRaTiON NEw OrLEanS, INc. fILEd A ClAim, (DOCKeT Entry no. 47). PrIde OFfSHOrE moved For suMmARy jUdgMent, aRGUiNG ThAT tHE eCOnoMIc-loss RulE pReCLuDes CenTURy ExPLoratIOn'S CLaim. (DockET Entry No. 75). cENTury eXplorAtIOn rEspoNdEd wIth A DIFfereNT theory AnD ASKED fOr leAVE To aMEND. (docKet EnTRY nO. 77). pRIDe oFfSHOrE REplieD, ArguIng ThAt ThIS cOUrt shoULD graNt ITs MoTion foR suMmary juDgMENT aND denY cEnturY expLorAtIOn'S MotION to AMenD aS FuTiLE. (DOCkeT EntRy NO. 78). fOr thE reASONs eXpLaiNEd BELow, THIS CoUrt granTS priDE ofFshOrE's mOtiOn for sUmMaRy JudGmenT, But tO the exTeNt The mOTIOn wAs bASed On A chALlenge to tHE SUfFIcIEncy of The cLAIM allegAtIoNS, cenTury ExplOrAtION Is GRanteD leaVe TO Amend. An AmENDED CoMpLAINt MUST be fileD By fEBRuary 25, 2011. i. bacKgrOuND the pride WyOmINg was A 250-FoOT mAT SloT JAck-Up rIG OPeratiNG iN tHE GuLf 799 Of mEXiCo. (DOcKet ENtRy nO. 1 ¶ 4). WhEN hUrrICanE IKE STRUck in SEpTember 2008, thE rIG waS LOcAteD IN shiP SHOal bloCK 283, abOUt 90 Miles SoUth of hOuMA, LouIsIana. (iD. ¶ 5). ThE HURRicane BlEW thE rig Off itS LOCaTioN, CauSInG it to SINk. (id. ¶ 6). pArtS OF THE Pride WyoMing's wreckAge SEttlED on top OF piPelinEs BeLONginG To THE WIlliamS COMPanIes, INc. AND TenNESSEe gas PiPeLiNe cOmPANy (TgPs). (id. ¶ 7). pRiDe OfFShorE FIleD tHiS cOmpLainT On OcTOBer 20, 2008. (DockET EntRy nO. 1). On aUgUsT 18, 2009, CenTurY EXpLoraTion fIlED ITS CLaIm, AllEgiNG ThAt paRt of the WREcKaGE froM THe PrIDe wyoming "sTRuck anD dAMaGed PIPelInes that iNterfErED witH CeNtury'S oPErAtiONS aNd nECEsSItated REpAIRs. CEntURY had PrOpertY iNtErEsTs In oNe SucH PipElInE ANd ConTribuTeD to iTS repaIRs." (dOcKet eNtry NO. 47, ¶ 3). cENtury eXPlORAtiON cLaIMEd aPprOXimAtELY $21 miLLiON iN DaMAgEs "CAUseD SOlELY by, aNd ... WhoLly duE TO, thE unsEAwORTHiNEss oF the J/u PriDE wyoMiNG, THe nEGligencE oF HER maSter aNd crew, and THe NegliGEncE oF hER OWnErs AnD opErATORS." (ID. ¶¶ 5-6). ON janUaRY 11, 2010, ceNtURY EXpLOrAtIoN AmenDEd To adD aLLeGATIONs oF REcKLESSNESs and intEnTIOnAL miSCOnDUCt. (DocKEt eNTRY NO. 63 ¶ 5). neiThER VeRSION oF THe CLAIm AlLeged tHaT CeNtURY EXplOrAtIon WAs aWARe OF PriDE oFFshore's cOnTRACT To uSE tHe TGpc pIpELIne. PrIDe oFFShORE aRguEs ThAT sUmMaRY JUdgMeNt is ApprOPrIATe fOr Two ReAsOns. the FiRST Is THAt centurY ExPLorATiON'S aMeNDeD claIm Is iNsUFfICIeNt bEcause IT Fails To ALlEGe thaT PRIde OFfshore kNew OF cENtURy eXplOratIOn's ConTRacT WiTH TGpC. the SECoNd is thAt CeNTUrY eXPlORATioN lackS evideNce oF A PRoPRiETARY InteRESt In ThE pipelINE thaT wOuLd SUPpORT eCoNoMIC-LosS DAMAGes For NeGliGencE. Ii. aNalySIS a. tHE LEgAl StAnDArDS PRIDE offShorE'S mOtioN ConCErNs THE appliCATioN oF The Robins DRy docK rUlE. In roBins drY DOCK & rEpair cO. v. FliNt, 275 u.s. 303, 48 s.cT. 134, 72 l.ed. 290 (1927), tHe suprEMe CoURt oveRTURNED A veRdICT in fAVor OF thE plaiNtifFs FOR BReaCh Of coNTRaCT BAsEd oN dAmAGE to A thIRD PaRTY'S prOPeRTY. "tHeIr LosS arose ONLy throUgH tHeir cONtRaCT wItH tHe OwnErs aND whIlE INTeNtIOnaLLY TO BRINg ABout A BREaCh Of cOnTract may GiVe rIsE TO a CAUSe OF ACtIon, nO aUTHORity need Be CIteD To SHOw tHAt, AS a gEneral RulE, At lEaSt, A tort to tHe pErson Or PROpeRTy of ONe MaN dOES NOt MAKE The TORt-FEASor lIabLe TO AnOtheR MeRelY BEcaUSe the InJurED persOn WaS UndER A coNTRaCT wItH THaT othER UnknOWn To THe doeR oF The WRonG." id. At 308-09, 48 s.CT. 134 (CITatiONs omiTTEd). "AlthOuGh CrITiCiZed frOM TImE To TimE, RObIns dry DOCK rEMAINS goOD Law." alLDeRS inT'l LTd. v. UnITED staTeS, No. 94 Civ. 5689(JSM), 1995 WL 251571, 2 (s.d.N.y. aPR. 28, 1995). "THe Fifth CIRCuiT cONTinueS To appLY ThE roBins DRY DOcK PRINciple tO MosT maRITImE cAsES, CarvInG Out aN EXCEption OnlY fOr cases involVInG A cOllisIon bETwEeN two vEssels NoT In pRIvITy of contract." norwEGIan Bulk tRaNspOrt A/s V. int'L MaRiNE TERmiNalS PaRTnERsHIP, 520 f.3D 409, 412 (5Th CIR.2008) (CITinG aMoCO trAnSPOrt co. v. S/S masON lYkEs, 768 f.2D 659 (5tH ciR.1985)). "SInce the AmOCO TRANspoRT DECIsiON, THe fIfTH cIrCUiT ... HAS noT RECognIzed excepTiONS To THe rUle iN ROBIns DrY DoCk oUTSIDe of thE cOnTExT OF coLliSIon CasES." Id. At 413 (citatiONs oMItTeD). THE fiRSt grOuNd pridE offSHORE aSsertS In movINg foR SUMmArY JUDGmeNT reStS oN ThE SUffiCiencY of cENturY ExPloration's AMEndED coMpLaINT. "[a] suMMAry-judGmenT moTiOn MAY Be mAde On tHE BASiS of THe PlEAdInGs ALoNE, aND IF thiS Is DonE IT 800 FUNCTionALLy Is thE SaME as A MOtioN To DiSmiSS For FaIluRE To statE A CLaim ...." 10A cHArlES aLaN wrIGht, ARthuR r. MIllER & MARy kAy KanE, fEderaL pracTICE AND ProCEdure § 2713, At 222-23 (3d ed. 1998) (cItAtIons omItTEd). A COmPLainT mAY BE DiSMisseD UNDER rULe 12(B)(6) fOR "FAiLuRE TO State A CLAim UPon WhICh RElIEF cAN be GRantED." fED. R. Civ. P. 12(B)(6). In beLL aTlanTiC CORP. V. tWOmBlY, 550 u.S. 544, 555, 127 s.Ct. 1955, 167 L.eD.2d 929 (2007), AnD aShcRoFT v. IqBAl, ___ u.S. ___, 129 s.cT. 1937, 173 l.ed.2D 868 (2009), tHe SupREme COURt confirMed tHaT RULe 12(B)(6) must Be read iN CoNjuNCTiON wItH RulE 8(a), WHich rEQuIres "A shOrt And pLAiN StatEmeNT of the CLAIm ShOWINg ThaT THE plEaDeR iS eNtiTLED tO rElIEF." tWombLY aBROGated The suPREme coUrt'S PRioR stAtEMEnT iN COnleY V. GIbSOn, 355 u.S. 41, 45-46, 78 s.Ct. 99, 2 L.Ed.2D 80 (1957), THaT "a cOMPlAInt sHOuLd nOT Be DISMiSSed fOR FailURE TO stAtE a CLAIM UnLEss IT apPEars beyONd DOuBt thAT ThE PlAiNtIfF cAn pRoVE nO seT oF FAcTs iN supPOrT Of hiS CLaIm wHIch wOULD eNTiTLE him to rELiEf." See twOmblY, 550 U.S. aT 562-63, 127 S.cT. 1955 ("cOnLeY's `nO SEt OF FAcTS' lanGuAge... IS beST FORGOTten AS AN INcOmPlETe, NEgAtiVe gloSS On aN acCePtED PLeadiNg StANdarD...."). TO WiThStAND a rUlE 12(B)(6) mOTioN, A COMPLAinT MUST conTain "eNOuGH facts tO sTaTe a claim tO rElief tHaT iS PlAUSibLE ON iTS FACe." TwomblY, 550 U.S. At 570, 127 s.CT. 1955; See alsO ElSeNSOHN V. St. tamMany PARiSH SHERiFf'S OFFiCe, 530 f.3D 368, 372 (5tH CiR.2008) (QuotInG TWoMBLY, 550 U.S. AT 570, 127 s.cT. 1955). thE cOurT exPlaiNeD That "THe PLeading StaNdaRD RuLe 8 AnNoUnCeS DOeS NOT REquIRE `detailEd FActuaL aLlEGATIoNs,' BUt It dEManDS moRe tHan aN uNaDOrneD, the-DEFeNDANt-UnLaWFULLY-haRmed-mE aCCUsaTiOn." iQBAl, 129 s.ct. At 1949 (CITIng TWoMbLY, 550 u.S. aT 555, 127 S.CT. 1955). wHen A PLaIntIFf's comPLaint FAILS tO stATe A CLaIM, tHe CoURt SHoUlD genERaLly giVe tHe PlAINTiff aT LeasT ONE CHanCe TO aMenD THE cOmpLaINt unDer RulE 15(a) BeFOrE DiSmissing The AcTION WITH prEJuDiCe. sEe GreaT plaInS tRuSt Co. V. mORGAN stanLeY dEan wITteR & Co., 313 f.3D 305, 329 (5TH CIR.2002) ("[d]IsTRiCt courts OFTEN aFfORD PlaiNtiFfS AT LEasT oNE OppoRtunItY tO cUre PlEaDINg DEfiCIeNCIEs BeFOre DiSmiSsING A CaSE, UNlesS it iS CleAr ThaT ThE DefECTs aRe incUrABLE Or The PlainTIffs ADViSE The cOuRt THat they ARE unWilliNg Or UNaBLE tO Amend In a MANnER That WIll avoId dIsMisSal."); sEE AlsO unITED sTATeS EX reL. aDriaN v. ReGeNTs Of the univ. Of CaL., 363 F.3d 398, 403 (5th Cir.2004) ("lEAve TO amEND SHoUlD Be FReeLY GiveN, ANd ouTRigHT rEfUsal To GraNT LeAve TO aMeND wIThoUT a JUStiFICaTIon ... is CONsidERED An aBusE Of DiScrETiOn." (INteRNaL citaTiON oMiTteD)). HOwEvEr, a plaIntIFF ShOULD be DEnIED LEaVE To AMEnD a ComplaInT If tHE CourT detErmineS tHAT "a proPoSeD aMEnDmENT ... clEARlY IS FRIvOLouS, aDvAnCInG A cLAim or defENsE ThAt Is leGALlY insuffIciENT On iTs facE ...." 6 wRIGHt, milLER & kANe § 1487, AT 732-33; SeE AlSO ayERs v. JohNSoN, 247 FeD.apPx. 534, 535 (5Th cir.2007) (uN	766 F.Supp.2d 797(2011) In the Matter of the COMPLAINT OF PRIDE OFFSHORE, INC.,as Owner of theJ/U Pride Wyoming for Exoneration from, or Alternatively, Limitation of Liability.Civil ActionNo. H-08-3109. United States DistrictCourt, S.D. Texas, Houston Division. February2, 2011. 798 MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This maritime dispute arises out of damage allegedly caused when a jack-uprig, the PRIDE WYOMING, detached from its mooringsduring Hurricane Ikein September 2008. PrideOffshore, Inc.,[1] the rig owner,filed a complaint inexonerationor alternativelyfor limitation of liability, (Docket Entry No. 1), and Century Exploration New Orleans, Inc.filed a claim,(DocketEntry No. 47). Pride Offshoremoved for summary judgment, arguing that the economic-loss rule precludes Century Exploration's claim. (Docket Entry No. 75). Century Exploration responded with a different theory and asked for leave to amend. (Docket Entry No. 77). Pride Offshore replied, arguing that this court should grant its motion for summary judgmentand deny Century Exploration'smotion to amend as futile. (Docket Entry No. 78). For the reasons explained below, this court grants Pride Offshore'smotion for summaryjudgment, but to the extent themotion was based on a challenge to the sufficiency ofthe claim allegations, Century Explorationis granted leave to amend. An amendedcomplaintmust befiled by February 25, 2011. I. Background The PRIDEWYOMING was a 250-foot matslot jack-up rigoperatingin the Gulf799 of Mexico. (Docket Entry No. 1 ¶ 4).When Hurricane Ike struck in September 2008, the rig was locatedin ShipShoal Block 283, about 90 miles south of Houma, Louisiana. (Id. ¶ 5). The hurricane blew the rig off its location,causing it tosink.(Id. ¶ 6).Parts of the PRIDE WYOMING's wreckage settled on topof pipelinesbelonging to The Williams Companies,Inc. and Tennessee Gas Pipeline Company (TGPS). (Id.¶ 7). Pride Offshore filed this complaint on October20, 2008. (Docket Entry No. 1). On August 18, 2009, Century Exploration filed its claim, alleging that partof the wreckage from the PRIDE WYOMING "struck and damaged pipelines thatinterfered with Century's operations and necessitated repairs. Century had property interests in one such pipeline and contributed to its repairs." (Docket Entry No. 47, ¶ 3). Century Exploration claimed approximately $21 millionin damages "caused solely by, and ...wholly due to, the unseaworthiness of theJ/U Pride Wyoming, the negligence of hermaster and crew, and thenegligence of her owners and operators." (Id. ¶¶ 5-6). On January 11, 2010, Century Exploration amended to add allegations of recklessness andintentionalmisconduct.(Docket Entry No. 63 ¶ 5). Neither version of the claim alleged that Century Explorationwas aware ofPride Offshore'scontractto use the TGPC pipeline. Pride Offshore argues that summary judgmentisappropriate for two reasons. The first is that Century Exploration's amended claim is insufficient because it fails to allege thatPride Offshore knew of Century Exploration'scontract with TGPC. Thesecond is that Century Exploration lacks evidence of a proprietary interestinthe pipelinethatwould supporteconomic-loss damages for negligence. II. Analysis A.The LegalStandards Pride Offshore'smotionconcernstheapplication of the Robins Dry Dock rule. In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48S.Ct. 134, 72 L.Ed. 290 (1927), the Supreme Court overturned a verdict in favor of the plaintiffs for breach of contract based on damage to a third party's property. "Their lossaroseonlythrough their contract with the owners and while intentionally to bring about a breach of contract may give rise toa cause of action, no authority need be cited to show that,asa generalrule, at least, a tortto the personor propertyof one man does not make the tort-feasorliable to another merelybecause the injured person was under a contract with that other unknown to the doer of the wrong." Id. at 308-09, 48S.Ct.134 (citations omitted). "Although criticized from time totime, Robins Dry Dock remains good law." Allders Int'lLtd. v. UnitedStates, No. 94 CIV. 5689(JSM), 1995 WL 251571, 2 (S.D.N.Y. Apr. 28, 1995). "The Fifth Circuit continues to apply the Robins DryDock principle to most maritime cases,carvingout an exception only for cases involving a collision between twovessels notin privity of contract."Norwegian Bulk Transport A/S v.Int'l MarineTerminalsPartnership, 520 F.3d 409, 412 (5th Cir.2008)(citing Amoco Transport Co. v. S/S MASON LYKES, 768 F.2d 659 (5th Cir.1985)). "Since the Amoco Transport decision, the FifthCircuit ... hasnot recognizedexceptions tothe rule in Robins Dry Dock outside of the context ofcollision cases." Id. at 413 (citations omitted). The first ground Pride Offshoreasserts in moving for summary judgmentrests on the sufficiency of CenturyExploration's amended complaint. "[A]summary-judgment motion may be made on the basis of the pleadings alone, andif this isdone it 800 functionally is the same asa motion to dismiss for failure to statea claim ...."10A CHARLES ALAN WRIGHT,ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE ANDPROCEDURE § 2713, at222-23 (3d ed. 1998) (citations omitted). A complaint may be dismissedunderRule 12(b)(6) for "failure to state a claim uponwhichrelief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v.Twombly, 550 U.S.544, 555, 127 S.Ct.1955, 167L.Ed.2d 929 (2007), and Ashcroftv. Iqbal, ___ U.S. ___, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009), the Supreme Court confirmed thatRule 12(b)(6) must be read in conjunction with Rule 8(a), which requires"a short and plain statement of the claim showing that the pleader is entitled to relief."Twombly abrogated the Supreme Court's prior statement inConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failureto state aclaimunless it appears beyond doubtthat the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly,550U.S. at 562-63, 127 S.Ct. 1955 ("Conley's`no set offacts' language... is best forgotten as an incomplete, negative gloss on an accepted pleading standard...."). To withstand a Rule 12(b)(6) motion, acomplaint must contain "enough facts tostate a claim to reliefthat is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5thCir.2008) (quoting Twombly, 550U.S. at570, 127 S.Ct. 1955). The Court explained that "thepleading standardRule 8 announcesdoes notrequire`detailed factual allegations,' but it demands more than anunadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555,127 S.Ct. 1955). When a plaintiff's complaint failsto statea claim, the court should generally give the plaintiff atleast one chance to amend the complaint under Rule 15(a) before dismissingthe action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) ("[D]istrictcourts often afford plaintiffs atleast one opportunity to cure pleading deficiencies before dismissing a case,unless it is clear that the defects are incurable or the plaintiffs advisethe courtthat they are unwilling or unable to amend ina manner that will avoid dismissal."); seealso United States ex rel. Adrian v. Regents of the Univ. ofCal., 363 F.3d 398, 403 (5th Cir.2004)("Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is considered an abuse of discretion." (internal citation omitted)). However, a plaintiffshould be denied leave to amend a complaint if the courtdetermines that "a proposed amendment... clearlyis frivolous, advancing a claim or defense that is legally insufficient on its face ...." 6 WRIGHT, MILLER & KANE § 1487, at 732-33; see also Ayers v. Johnson, 247 Fed.Appx. 534, 535 (5th Cir.2007)(un	_766_ F.Supp.2d 797 _(2011)_ _In_ the Matter _of_ the _COMPLAINT_ OF PRIDE OFFSHORE, INC., as _Owner_ of the J/U Pride Wyoming _for_ Exoneration _from,_ or Alternatively, Limitation _of_ _Liability._ Civil Action _No._ H-08-3109. _United_ _States_ _District_ Court, S.D. Texas, _Houston_ Division. _February_ _2,_ _2011._ 798 MEMORANDUM AND ORDER _LEE_ H. ROSENTHAL, District Judge. This maritime dispute arises out _of_ damage allegedly _caused_ when _a_ jack-up _rig,_ _the_ PRIDE WYOMING, detached _from_ its _moorings_ during Hurricane Ike in September 2008. Pride Offshore, _Inc.,[1]_ the rig owner, filed a _complaint_ _in_ exoneration or alternatively for limitation of liability, (Docket _Entry_ No. 1), and Century Exploration _New_ Orleans, _Inc._ filed _a_ claim, (Docket Entry No. _47)._ Pride _Offshore_ _moved_ for summary judgment, arguing that the economic-loss rule _precludes_ Century Exploration's claim. (Docket Entry No. 75). Century Exploration responded with a different theory and asked _for_ leave to amend. (Docket _Entry_ _No._ 77). Pride _Offshore_ replied, arguing that this court should grant its motion _for_ summary judgment and deny Century Exploration's motion to _amend_ as futile. _(Docket_ Entry No. 78). For the _reasons_ _explained_ below, this court grants Pride Offshore's motion for summary judgment, but to the extent the motion was based on a challenge _to_ the sufficiency of the claim allegations, Century Exploration is granted leave to amend. An _amended_ complaint must _be_ filed by February _25,_ 2011. I. Background _The_ PRIDE WYOMING was a 250-foot mat slot jack-up rig operating in the Gulf 799 of _Mexico._ (Docket Entry No. 1 ¶ 4). _When_ Hurricane Ike struck in September 2008, the rig was located _in_ Ship Shoal Block 283, about 90 miles south of Houma, _Louisiana._ (Id. ¶ 5). _The_ hurricane blew the rig off _its_ location, causing it _to_ sink. _(Id._ ¶ 6). Parts of the PRIDE WYOMING's wreckage settled on top _of_ pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company _(TGPS)._ (Id. ¶ 7). Pride Offshore filed this complaint on October _20,_ _2008._ (Docket Entry _No._ 1). On _August_ 18, 2009, Century Exploration _filed_ _its_ claim, _alleging_ _that_ part of the wreckage from the PRIDE WYOMING "struck and damaged pipelines that interfered with Century's operations and necessitated repairs. Century had property _interests_ in one such pipeline and contributed to its repairs." _(Docket_ Entry _No._ 47, ¶ 3). _Century_ _Exploration_ claimed approximately $21 million in damages "caused solely by, and ... wholly due to, the unseaworthiness of the _J/U_ Pride Wyoming, the negligence of _her_ _master_ and crew, and the negligence of her owners and _operators."_ (Id. _¶¶_ 5-6). On January 11, 2010, Century Exploration _amended_ to add allegations _of_ _recklessness_ and intentional _misconduct._ (Docket _Entry_ No. 63 ¶ 5). Neither version of the claim alleged that Century Exploration _was_ aware of Pride _Offshore's_ contract to use the _TGPC_ pipeline. Pride Offshore argues that summary judgment is appropriate for two reasons. The first is _that_ _Century_ Exploration's amended claim is insufficient _because_ it fails to allege that Pride Offshore _knew_ of Century _Exploration's_ contract with TGPC. The second is that Century Exploration _lacks_ evidence of a proprietary interest in _the_ pipeline that _would_ support economic-loss damages for negligence. II. Analysis _A._ The Legal Standards Pride Offshore's motion concerns the application of the Robins Dry Dock rule. _In_ _Robins_ Dry Dock & Repair Co. v. Flint, 275 U.S. 303, _48_ S.Ct. 134, _72_ L.Ed. 290 (1927), the Supreme Court _overturned_ a verdict _in_ favor of the plaintiffs for breach of _contract_ based on damage to a _third_ party's property. "Their loss arose only _through_ _their_ contract with the _owners_ _and_ while intentionally to bring _about_ a _breach_ of _contract_ may give rise to a cause of _action,_ no authority _need_ be cited _to_ show _that,_ _as_ a general rule, at least, a _tort_ to the person _or_ property of one _man_ does not make the tort-feasor liable to _another_ merely _because_ the injured person _was_ _under_ a contract _with_ _that_ _other_ unknown to the doer of the wrong." Id. at 308-09, 48 S.Ct. 134 (citations _omitted)._ "Although criticized from time to _time,_ _Robins_ _Dry_ Dock remains good _law."_ Allders Int'l Ltd. v. United States, No. _94_ CIV. 5689(JSM), 1995 WL 251571, 2 (S.D.N.Y. Apr. 28, 1995). "The Fifth Circuit continues to apply the _Robins_ _Dry_ Dock principle to _most_ maritime cases, carving out an exception _only_ for cases involving _a_ collision between two vessels not in privity of _contract."_ Norwegian _Bulk_ Transport _A/S_ v. _Int'l_ Marine _Terminals_ Partnership, 520 F.3d 409, 412 _(5th_ Cir.2008) (citing Amoco Transport Co. v. S/S _MASON_ _LYKES,_ 768 F.2d 659 _(5th_ Cir.1985)). "Since _the_ _Amoco_ _Transport_ decision, _the_ Fifth Circuit ... has not recognized _exceptions_ to the rule _in_ _Robins_ Dry Dock _outside_ of the context of _collision_ cases." Id. _at_ _413_ (citations omitted). The first ground _Pride_ Offshore asserts in moving for summary judgment rests _on_ the sufficiency of Century _Exploration's_ _amended_ complaint. _"[A]_ summary-judgment motion may be made on the basis of the pleadings alone, and if this is done it 800 _functionally_ is the _same_ as a motion _to_ dismiss for _failure_ _to_ state _a_ claim ...." _10A_ CHARLES ALAN WRIGHT, ARTHUR R. MILLER & _MARY_ KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2713, at 222-23 _(3d_ _ed._ _1998)_ (citations omitted). A complaint may be _dismissed_ _under_ Rule 12(b)(6) for "failure _to_ state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic _Corp._ _v._ Twombly, 550 U.S. 544, 555, _127_ S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ____,_ 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), _the_ Supreme Court confirmed that Rule _12(b)(6)_ must be read in conjunction with _Rule_ 8(a), which requires "a short and _plain_ statement of the claim showing that the _pleader_ _is_ _entitled_ to relief." Twombly abrogated _the_ Supreme Court's _prior_ _statement_ in _Conley_ v. _Gibson,_ 355 U.S. 41, 45-46, 78 S.Ct. _99,_ 2 _L.Ed.2d_ _80_ (1957), that "a complaint should not be dismissed for failure to state a _claim_ _unless_ it appears beyond _doubt_ that the plaintiff can prove no set of facts in support of his _claim_ which _would_ _entitle_ him to relief." See _Twombly,_ _550_ U.S. at 562-63, _127_ S.Ct. 1955 _("Conley's_ `no set of _facts'_ language... is best forgotten as an incomplete, negative gloss on an _accepted_ pleading standard...."). To withstand a Rule 12(b)(6) motion, _a_ complaint must contain _"enough_ facts to state a claim to relief that is plausible on its face." Twombly, 550 _U.S._ at 570, 127 S.Ct. _1955;_ see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 _(5th_ Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The _Court_ explained that "the _pleading_ _standard_ Rule 8 _announces_ does _not_ require `detailed factual allegations,' but it demands _more_ than _an_ _unadorned,_ the-defendant-unlawfully-harmed-me accusation." _Iqbal,_ 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). When a plaintiff's complaint fails _to_ _state_ a claim, _the_ court should _generally_ give the plaintiff at least one _chance_ to amend the complaint under Rule 15(a) before dismissing the action with prejudice. _See_ Great Plains _Trust_ Co. v. Morgan Stanley Dean _Witter_ & Co., 313 F.3d 305, 329 _(5th_ _Cir.2002)_ ("[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies _before_ _dismissing_ _a_ case, _unless_ it _is_ _clear_ that the defects are incurable or the plaintiffs advise the court that they _are_ _unwilling_ or unable to _amend_ in a _manner_ that will _avoid_ dismissal."); see also _United_ _States_ ex _rel._ Adrian v. Regents of the Univ. of Cal., 363 _F.3d_ 398, 403 (5th Cir.2004) ("Leave to _amend_ should be freely _given,_ _and_ outright _refusal_ to grant _leave_ to amend _without_ a _justification_ ... is considered _an_ abuse of discretion." (internal citation omitted)). However, a plaintiff _should_ be denied leave to amend a complaint if the court determines that "a proposed amendment _..._ clearly is _frivolous,_ advancing _a_ claim or defense that is legally _insufficient_ on _its_ face ...." 6 WRIGHT, _MILLER_ & KANE § 1487, at 732-33; see also Ayers v. Johnson, 247 _Fed.Appx._ 534, 535 (5th Cir.2007) _(un_
202 F.2d 530 WOODWORKERS TOOL WORKSv.BYRNE. No. 13236. United States Court of Appeals Ninth Circuit. March 10, 1953. Tripp & Calloway, Los Angeles, Cal., for appellant. John W. Olson, Los Angeles, Cal., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 This action is for damages for personal injury sustained by appellee in consequence of the disintegration of an allegedly defective panel raiser head manufactured by appellant, an Illinois corporation, and shipped by it to appellee's employer in California, of which state appellee is a resident. A verdict awarding damages was returned and a judgment entered thereon. 2 On appeal from that judgment, Woodworkers Tool Works v. Byrne, 9 Cir., 191 F.2d 667, this court held with appellee on the merits. But a motion of appellant to quash the service of summons had been denied by the trial court, and we thought, 191 F.2d at pages 670-673, that the showing before the court at the time the motion was ruled on, going to the issue whether appellant had constituted one Preuer by law an agent in California to receive service of process on its behalf, was insufficient to warrant the denial. We noted, however, that during the course of the trial substantial oral evidence had been received tending to show the existence of the necessary agency relationship between appellant and Preuer, and we summarize this evidence, 191 F.2d at page 673; but it was further noted that the trial judge regarded the jurisdictional problem as having already been determined, hence had not taken the oral evidence into account except for such bearing as it might have on the merits. 3 We were of opinion that the issue of the validity of the service, inasmuch as it was one of due process, was open to further examination and that the evidence adduced on the trial might properly be considered as supplementing the original showing on that issue. We said, 191 F.2d at page 673, that "if there be added to the evidence which was before the court at the time of the denial of the motion to quash the service of the summons the evidence adduced at the trial, particularly that of Preuer hereinbefore referred to there might be a basis to sustain a conclusion that Woodworkers Tool Works had made Preuer its agent. This issue cannot be resolved without a finding thereon by the trier of fact and therefore upon remand it will be necessary for the court below to make an appropriate finding upon the present record." 4 After consideration and disposition of the remaining issues the court made the following order: "To the end that the court below may determine the question of whether the evidence now in the record is sufficient to sustain Byrne's contention that Woodworkers Tool Works made Woodworkers Supply Company, viz., Preuer, its agent for the service of process in California, we vacate the judgment and remand the cause with the direction to the court below to proceed to determine that issue. If the court determines the evidence of agency to be sufficient it will possess the authority to reinstate the judgment."1 5 Neither party petitioned for a rehearing. 6 Upon remand the trial court on the existing record made appropriate findings of fact as shown in the footnote,2 and concluded that at and prior to time of service appellant was doing business in California through Preuer as its agent, and had by law constituted him its agent in California to receive service of process in its behalf. The judgment was ordered reinstated. 7 From the reinstated judgment appellant has taken the present appeal, claiming that the evidence is insufficient to support the court's finding of agency. Is the point now open to inquiry? We think not. This court's original decision constitutes the law of the case. It clearly implied that on the evidence in the record the issue was one of fact for the trial court's determination, not one of law for ourselves. Had we deemed the evidence insufficient as a matter of law to support a finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding. We would have been obliged to reverse the judgment outright. Nor, if we were in doubt whether on that evidence a finding of jurisdiction could be sustained by us, would we have thought it proper to undertake at that juncture the very considerable and perhaps wholly futile task of passing on the merits. Taking the opinion by its four corners we construe it as holding that the trial court's finding of fact was to be accepted as conclusive of the question of the validity of the service. 8 True, the rule we apply here is not a compulsive principle akin to res judicata. The phrase law of the case expresses rather the general practice of the courts to decline to reopen what they have already in effect decided. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152. Cf. People of State of Illinois ex rel. Hunt v. Illinois Central R. Co., 184 U.S. 77, 91, 22 S.Ct. 300, 46 L.Ed. 440. The rule is grounded in large part on the policy of ending litigation, and in some instances on the want of power in an appellate court to modify its own judgments otherwise than on a rehearing. And it has been pointedly observed that if the practice were not followed, changes in the personnel of the court would produce confusion. Clary v. Hoagland, 6 Cal. 685; Oakley v. Aspinwall, 13 N.Y. 500, 501. For a comprehensive statement of the doctrine and for citations of the almost numberless cases bearing on it, see 5 C.J.S., Appeal and Error, § 1821 et seq.; 21 C.J.S., Courts, § 195 et seq. 9 Application of the doctrine in this instance would result in no injustice or hardship since a trial on the merits has already been had. 10 Affirmed. Notes: 1 The formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of the costs of the appeal 2 "That Elmer Preuer is the sole proprietor of Woodworkers Supply Company; that defendant, Woodworkers Tool Works, a corporation, was engaged in selling its products in California through the agency of said Woodworkers Supply Company; that the panel raiser head involved in this action was sold to plaintiff's employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had a running course of business every year and sold some of its items at all times in California through said Woodworkers Supply Company on a commission basis; that defendant's business of selling its products in California through the agency of said Woodworkers Supply Company was continuous and systematic; that said panel raiser head as well as other products of defendant sold in California were shipped by defendant company directly to the purchasers through orders received from Woodworkers Supply Company and paid for by purchasers through said Woodworkers Supply Company; that said Woodworkers Supply Company was the agent of defendant, Woodworkers Tool Works, as their identity of names implies."	202 f. 2d 530 woodworkers tool worksv. byrne. no. 13236. united states court of appeals ninth circuit. march 10, 1953. tripp & calloway, los angeles, cal., for appellant. john w. olson, los angeles, cal., for appellee. before stephens, healy, and pope, circuit judges. healy, superior judge. 1 this action is for damages for personal injury sustained by appellee in consequence of the disintegration of an allegedly defective panel raiser head manufactured by appellant, an illinois corporation, and shipped by it to appellee ' s employer in california, of which state appellee is a resident. a verdict regarding damages was returned and a judgment entered thereon. 2 on appeal from that judgment, woodworkers tool works v. byrne, 9 feb., 191 f. 2d 667, this court held with appellee on the merits. but a motion of appellant to quash the service of summons had been denied by the trial court, and we thought, 191 f. 2d at pages 670 - 673, that the showing before the court at the time the motion was ruled on, going to the issue whether appellant had constituted one preuer by law an agent in california to receive service of process on its behalf, was insufficient to warrant the denial. we noted, however, that during the course of the trial substantial oral evidence had been furnished tending to show the existence of the necessary agency relationship between appellant and preuer, and we summarize this opinion, 191 f. 2d at page 673 ; but it was further noted that the trial judge regarded the jurisdictional problem as having already been determined, hence had not taken the oral evidence into account except for such bearing as it might have on the trial. 3 we were of opinion that the issue of the validity of the service, inasmuch as it was one of due process, was open to further examination and that the evidence adduced on the trial might properly be considered as supplementing the original showing on that issue. we said, 191 f. 2d at page 673, that " if there be objection to the evidence which was before the court at the time of the denial of satisfactory evidence to quash the receipt of the summons the evidence adduced at the trial, particularly that of preuer hereinbefore referred to there might be a basis to sustain a conclusion that woodworkers tool works had made preuer its agent. this issue cannot be resolved without a finding thereon by the trier of fact and therefore upon remand it will be necessary for the court below to make an appropriate finding upon the present record. " 4 after consideration and disposition of the remaining issues the court made the following order : " to the end that the court below may determine the question of whether the evidence now in the record is sufficient to sustain byrne ' s contention that woodworkers tool works made woodworkers supply company, viz., preuer, its agent for the service of process in california, we vacate the judgment and remand the cause with the direction to the court below to proceed to determine that issue. if the court determines the evidence of agency to be sufficient it will possess the authority to reinstate the judgment. " 1 5 neither party petitioned for a rehearing. 6 upon remand the trial court on the existing record made appropriate findings of fact as shown in the footnote, 2 and concluded that at and prior to time of service appellant was doing business in california through preuer as its agent, and had by law constituted him its agent in california to receive service of process in its behalf. the judgment was ordered reinstated. 7 from the reinstated judgment appellant has taken the present appeal, claiming that the evidence is insufficient to support the court ' s finding of agency. is the point now open to inquiry? we think not. this court ' s original decision constitutes the law of the case. it clearly implied that on the evidence in the record the issue was one of fact for the trial court ' s determination, not one of law for ourselves. had we deemed the evidence insufficient as a matter of law to support a finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding. we would have been obliged to reverse the judgment outright. nor, if we were in doubt whether on that evidence a finding of jurisdiction could be sustained by us, would we have thought it proper to undertake at that juncture the very considerable and perhaps wholly futile task of passing on the merits. taking the opinion by its four corners we construe it as holding that the trial court ' s finding of fact was to be accepted as conclusive of the question of the validity of the service. 8 true, the rule we apply here is not a compulsive principle akin to res judicata. the phrase law of the case expresses rather the general practice of the courts to decline to reopen what they have already in effect decided. messenger v. anderson, 225 u. s. 436, 444, 32 s. ct. 739, 56 l. ed. 1152. cf. people of state of illinois ex rel. hunt v. illinois central r. co., 184 u. s. 77, 91, 22 s. ct. 300, 46 l. ed. 440. the rule is grounded in large part on the policy of ending litigation, and in some instances on the want of power in an appellate court to modify its own judgments otherwise than on a rehearing. and it has been pointedly observed that if the practice were not followed, changes in the personnel of the court would produce confusion. clary v. hoagland, 6 cal. 685 ; oakley v. aspinwall, 13 n. y. 500, 501. for a comprehensive statement of the doctrine and for citations of the almost numberless cases bearing on it, see 5 c. j. s., appeal and error, § 1821 et seq. ; 21 c. j. s., courts, § 195 et seq. 9 application of the doctrine in this instance would result in no injustice or hardship since a trial on the merits has already been had. 10 affirmed. notes : 1 the formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of the costs of the appeal 2 " that elmer preuer is the sole proprietor of woodworkers supply company ; that defendant, woodworkers tool works, a corporation, was engaged in selling its products in california through the agency of said woodworkers supply company ; that the panel raiser head involved in this action was sold to plaintiff ' s employer, selby company, in california by defendant through said woodworkers supply company ; that defendant had a running course of business every year and sold some of its items at all times in california through said woodworkers supply company on a commission basis ; that defendant ' s business of selling its products in california through the agency of said woodworkers supply company was continuous and systematic ; that said panel raiser head as well as other products of defendant sold in california were shipped by defendant company directly to the purchasers through orders received from woodworkers supply company and paid for by purchasers through said woodworkers supply company ; that said woodworkers supply company was the agent of defendant, woodworkers tool works, as their identity of names implies. "	202 F. 2d 530 WOODWORKERS TOOL WORKSv. BYRNE. No. 13236. United States Court of Appeals Ninth Circuit. March 10, 1953. Tripp & Calloway, Los Angeles, Cal. , for appellant. John W. Olson, Los Angeles, Cal. , for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 This action is for damages for personal injury sustained by appellee in consequence of the disintegration of an allegedly defective panel raiser head manufactured by appellant, an Illinois corporation, and shipped by it to appellee ' s employer in California, of which state appellee is a resident. A verdict awarding damages was returned and a judgment entered thereon. 2 On appeal from that judgment, Woodworkers Tool Works v. Byrne, 9 Cir. , 191 F. 2d 667, this court held with appellee on the merits. But a motion of appellant to quash the service of summons had been denied by the trial court, and we thought, 191 F. 2d at pages 670 - 673, that the showing before the court at the time the motion was ruled on, going to the issue whether appellant had constituted one Preuer by law an agent in California to receive service of process on its behalf, was insufficient to warrant the denial. We noted, however, that during the course of the trial substantial oral evidence had been received tending to show the existence of the necessary agency relationship between appellant and Preuer, and we summarize this evidence, 191 F. 2d at page 673; but it was further noted that the trial judge regarded the jurisdictional problem as having already been determined, hence had not taken the oral evidence into account except for such bearing as it might have on the merits. 3 We were of opinion that the issue of the validity of the service, inasmuch as it was one of due process, was open to further examination and that the evidence adduced on the trial might properly be considered as supplementing the original showing on that issue. We said, 191 F. 2d at page 673, that " if there be added to the evidence which was before the court at the time of the denial of the jotiob to quash the service of the summons the evidence adduced at the trial, particularly that of Preuer hereinbefore referred to there might be a basis to sustain a conclusion that Woodworkers Tool Works had made Preuer its agent. This issue cannot be resolved without a finding thereon by the trier of fact and therefore upon remand it will be necessary for the court below to mA<e an appropriate finding upon the present record. " 4 After consideration and disposition of the remaining issues the court made the following order: " To the end that the court below may determine the question of whether the evidence now in the record is sufficient to sustain Byrne ' s contention that Woodworkers Tool Works made Woodworkers Supply Company, viz. , Preuer, its agent for the service of process in California, we vacate the judgment and remand the cause with the direction to the court below to proceed to determine that issue. If the court determines the evidence of agency to be sufficient it will possess the authority to reinstate the judgment. " 1 5 Neither party petitioned for a rehearing. 6 Upon remand the trial court on the existing record made appropriate findings of fact as shown in the footnote, 2 and concluded that at and prior to time of service appellant was doing business in California through Preuer as its agent, and had by law constituted him its agent in California to receive service of process in its behalf. The judgment was ordered fsinstated. 7 From the reinstated judgment appellant has taken the present appeal, claiming that the evidence is insufficient to support the court ' s finding of agency. Is the point now open to inquiry? We think not. This xIurt ' s original decision constitutes the law of the case. It clearly implied that on the evidence in the record the issue was one of fact for the t5ia< court ' s determination, not one of law for ourselves. Had we deemed the evidence insufficient as a matter of law to support a finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding. We would have been obliged to r3vers$ the judgment outright. Nor, if we were in doubt whether on that evidence a finding of jurisdiction could be sustained by us, would we have thought it proper to undertake at that juncture the very considerable and perhaps wholly futile task of passing on the merits. Taking the opinion by its four corners we construe it as No;ding that the trial court ' s finding of fact was to be accepted as conclusive of the question of the validity of the service. 8 True, the rule we apply here is not a compulsive principle akin to res judicata. The phrase law of the case expresses rather the general practice of the courts to decline to reopen what they have already in effect decided. Messenger v. Anderson, 225 U. S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152. Cf. People of State of Illinois ex rel. Hunt v. Illinois Central R. Co. , 184 U. S. 77, 91, 22 S. Ct. 300, 46 L. Ed. 440. The rule is grounded in large part on the policy of ending litigation, and in some instances on the want of power in an appellate court to modify its own judgments otherwise than on a rehearing. And it has been po*n%edly observed that if the practice wRrD not followed, changes in the personnel of the court would produce confusion. Clary v. Hoagland, 6 Cal. 685; Oakley v. Aspinwall, 13 N. Y. 500, 501. For a comprehensive statement of the doctrine and for citations of the almost numberless cases bear&Hg on it, see 5 C. J. S. , Appeal and Error, § 1821 et seq. ; 21 C. J. S. , Courts, § 195 et seq. 9 Application of the doctrine in this instance would result in no injustice or hardship since a trial on the merits has already been had. 10 Affirmed. Notes: 1 The formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of the costs of the appeal 2 " That Elmer Preuer is the sole proprietor of Woodworkers Supply Company; that defendant, Woodworkers Tool Works, a corporation, was engaged in selling its products in California through the agency of said Woodworkers Supply Company; that the panel raiser head involved in this action was sold to plaintiff ' s employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had a running course of business every year and sold some of its items at all times in California through said Woodworkers Supply Company on a commission basis; that defendant ' s business of selling its products in California through the agency of said Woodworkers Supply Company was continuous and systematic; that said panel raiser head as well as other products of defendant sold in California were shipped by defendant company directly to the purchasers through orders received from Woodworkers Supply Company and paid for by purchasers through said Woodworkers Supply Company; that said Woodworkers Supply Company was the agent of defendant, Woodworkers Tool Works, as their identity of names implies. "	202 F.2d 530 WOODWORKERS TOOL WORKSv.BYRNE. No. 13236. States Court of Appeals Ninth Circuit. March 10, 1953. Tripp & Calloway, Los Cal., for appellant. John Olson, Los Angeles, Cal., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. Circuit Judge. 1 This action for damages for injury sustained by appellee in of the disintegration an allegedly defective head manufactured by appellant, an Illinois corporation, shipped by it to appellee's employer in California, of which state is a resident. A verdict awarding was returned and a judgment thereon. 2 On appeal from that judgment, Woodworkers Tool Works v. Byrne, 9 Cir., 191 F.2d 667, this court held appellee on the merits. But motion of appellant quash the service of summons been denied the court, and thought, 191 at pages 670-673, that the showing before the court at the time the motion was ruled going to the issue whether had constituted one Preuer by law an agent to receive of process on its was insufficient to warrant the denial. We noted, however, that during the of trial substantial evidence had been received to show the existence of the necessary agency relationship between and Preuer, and we summarize this evidence, 191 F.2d at page 673; but it was further noted that the regarded the jurisdictional problem as having already been determined, hence had not taken oral evidence into account except for such bearing as it might have on the merits. 3 We were of opinion that the issue of the validity of the service, inasmuch as it was one process, was open to further examination and that the evidence adduced on the trial might properly be considered supplementing original showing on that issue. We 191 F.2d at page 673, that "if be to the evidence which was the at the time of the denial of the motion to quash the service of the summons the adduced the trial, particularly of Preuer hereinbefore referred to there might a basis to sustain a conclusion that Tool had made Preuer its agent. issue cannot be resolved without a finding thereon the trier of fact therefore upon remand will be necessary for the court below to make an appropriate finding upon the record." 4 After and disposition of the remaining issues the court made the following order: the end court below may determine the question of whether the evidence now in the record is sufficient to sustain Byrne's contention that Works made Woodworkers Supply viz., Preuer, its agent for the service of process California, vacate the judgment and the cause with the direction to the court below to proceed determine that issue. If the court the evidence of agency to be sufficient it will possess authority to reinstate the judgment."1 5 party petitioned a rehearing. 6 Upon remand the trial court on the existing record made appropriate findings of fact as shown in footnote,2 and concluded that at and prior to time of service appellant was doing business in California through Preuer as its agent, and had by law constituted him its agent in California to receive service of in its behalf. The judgment ordered reinstated. 7 From the reinstated judgment appellant has taken the present appeal, claiming that the evidence insufficient to support the court's finding of agency. Is the point now open to We not. This court's original decision constitutes the law of the case. It clearly implied that the evidence in the record the issue was one of fact for the trial court's determination, not one of law for ourselves. Had we deemed the evidence insufficient as a matter of law to finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding. We would have been obliged to reverse the judgment outright. Nor, if we were in doubt whether on that evidence a finding of jurisdiction could be sustained by us, would we have thought proper to undertake at that juncture the very considerable and perhaps wholly futile task of on the merits. Taking the opinion by its four corners we construe it as holding that the trial court's finding of was to be accepted as conclusive of the question of the validity of service. 8 True, the rule we apply here is not a principle akin to res judicata. The law of case expresses the general practice of the courts to decline to reopen what they have already in effect decided. Messenger v. Anderson, 225 444, 32 S.Ct. 739, 56 L.Ed. 1152. Cf. People of State of Illinois ex rel. Hunt v. Central Co., 184 U.S. 77, 91, 22 S.Ct. 300, L.Ed. 440. The rule is grounded in large on the policy of ending litigation, in some instances on the want of power in an appellate court to modify its own judgments otherwise than on a rehearing. And it has been pointedly that if the practice were not followed, changes in the personnel of the court would produce Clary v. Hoagland, 6 Cal. 685; Oakley v. Aspinwall, 13 N.Y. 501. For a comprehensive statement of the doctrine and for citations of almost numberless cases bearing on it, see 5 C.J.S., and Error, § 1821 et 21 C.J.S., Courts, § 195 et seq. 9 Application of the doctrine in this instance would in no injustice or hardship a trial merits has already been 10 Notes: 1 The formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of costs the appeal 2 "That Elmer Preuer is the sole proprietor of Woodworkers Supply Company; that defendant, Woodworkers Tool a corporation, was engaged in selling its products in California through the agency of said Woodworkers Supply Company; that the panel raiser head involved in this action was sold to plaintiff's employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had a course of business every year and sold some of its items at all times in California through said Woodworkers Supply Company on a commission basis; that business of its in California through the agency of said Woodworkers Supply Company continuous and systematic; said panel raiser head as well other products of defendant sold in California were by defendant company directly to the purchasers through orders received from Woodworkers Supply Company and paid for by purchasers through said Woodworkers Supply Company; that said Woodworkers Supply Company was the agent of defendant, Woodworkers Tool Works, as identity of names implies."	202 F.2D 530 WOodWOrkErS Tool WorkSv.BYRNe. NO. 13236. UNiteD stateS CourT of aPPeaLS NInTh CiRcuIt. MARcH 10, 1953. TRiPP & CalLoWay, los AnGelEs, Cal., FoR AppElLaNt. jOHn W. oLSOn, lOS aNgeles, CaL., FOr aPpeLLEe. BEfoRe sTepHenS, heAlY, And PoPE, CIRCUiT JUDGEs. heaLy, CIRCuIT jUdGe. 1 THiS aCtiON IS FOR DaMAgES FOr PeRsoNaL iNjuRy sustAInEd bY appeLlee iN cONSEQUeNCE oF thE DIsInTegratiOn Of aN ALLEGeDly dEfectIve pAnEL raiseR HEaD MaNUfaCtuRED By AppeLlANt, aN illiNoIS cORpORatIoN, aNd sHippeD by it to appElLee'S EMPLOyEr IN CAlIfoRNia, oF whICh STatE ApPeLleE Is A rEsiDeNT. a VErdicT aWaRdIng dAMages was reTUrnEd AND A jUdGMeNt ENtEReD THerEoN. 2 oN AppeaL FrOm THat jUdGMenT, WoODWorkErs tool WORKs v. ByrNE, 9 cIr., 191 f.2D 667, tHIS cOurT heLd with APPElLEe oN The meRITs. bUT A MotioN oF aPpeLLaNT TO quAsh ThE serVicE Of SummOnS HAD bEeN DEnIEd by ThE Trial COURt, and We THoUGHT, 191 F.2D aT pagEs 670-673, ThaT thE sHowiNG BEforE THe cOuRT At tHe time THe MOtIOn WaS rUlEd on, GOINg TO tHE ISsUe WHeTheR appELlaNt hAd cONSTituTEd One PrEUEr bY Law aN AgEnT iN CALiFoRnIA To recEiVe SErViCE Of pROCeSS oN ITS behALf, WaS insuFfIcIEnt tO wArRAnT tHE DENiAL. WE nOTED, hoWEvER, ThaT DurinG The cOuRSe Of The TRIAL subSTaNtIal oraL EViDENce HAD beEN RECEIVEd teNdIng TO sHow the EXiStEncE Of The neCeSsARY aGeNcY RELATioNSHIP BeTWeeN APPeLLaNT And PREuer, aND we SUMmAriZE ThIs eviDENCe, 191 F.2d At paGe 673; bUt it was FURthEr nOteD ThaT THE TrIAl JuDGE rEgARdED the jurIsdIcTionAL pRoBlEm AS HaVInG AlReAdy BeeN DeTERMINEd, HeNCe HAD Not taKeN THE OraL evIDEnce Into ACcount EXCEpT FOr sUCH BeaRinG AS it MIgHt haVe On tHE MEriTS. 3 wE weRE oF oPiNION tHat tHe iSSue of The validity Of The SERVicE, iNaSmuch as IT was oNe of Due pROcess, WAS open tO FuRTHER ExaMinAtIOn aND THaT thE EvIDence aDdUcEd on the TRiAL MIGHt pROpeRLy bE COnsIDERed As suppleMentING THE OrIgInAl sHoWiNg on tHaT iSSUe. We SAId, 191 F.2d At pAGe 673, THAt "if thEre be Added tO The eVIDENcE whICH WAS BEFoRe thE cOURT at thE Time OF tHE deNiaL Of THe MotiOn to QuAsh The sERvicE of ThE SuMmONS thE eVIDeNCe ADDuCED at THe TriAl, PArTicUlArlY thaT oF PrEUer hErEINBefore rEFeRReD to tHEre miGHT BE A basIs tO SuStaIn A conCLUsiON tHAT WOodworkErS TOOL WOrKs Had MaDe PReUEr itS AGENT. this issue CannoT BE reSOlved wiTHOut A FINDiNG tHEReOn By THE TRier OF FaCt And thEREFOre uPOn rEMaNd iT WiLl be NECessARY FOr tHe coUrT BeloW TO MaKE an appropRiATe FiNdiNg UPoN THE presenT rECOrD." 4 afTer cONsiDeRatioN and dISpOsiTion OF thE ReMaInING issUeS the COurT mAde THe fOlloWINg ORDeR: "TO The enD tHAt THE cOuRt bElow mAy DEteRMinE THE QueStion of WHetHER ThE eviDENCE NOW In tHe recORd Is suFfIcIeNT to susTAIn byrne'S CoNTenTioN that woODwOrkerS tooL WORKS made WoODWOrKers SUppLy coMPAny, vIZ., prEueR, ITS AgenT FoR ThE seRvICe of pRoCEsS In CALifORNia, WE vacaTE tHE judgmenT ANd reMAnd tHE CAUsE WITh tHe dirECTION To the COurT BelOW TO PRoCeEd TO DeTErMInE thaT issUe. if thE CourT DetermineS The EVidenCe oF agEncy tO bE SuFfiCIeNT it wiLL POsSess tHe aUThOrIty To reInStAte ThE juDgMEnt."1 5 nEiTheR pARTY petitioNeD FoR a REhEarING. 6 uPOn ReMaNd the TRial coURt on THE exIstIng ReCoRd mADe aPProPRIaTE fINDIngS OF faCt as sHOwn In THE FootNoTE,2 anD cONcluDED thAT at AnD PRIor to tIme oF serVICE aPpeLLANT wAs Doing BusINess IN CalIfORNIA ThrouGH preuEr aS ITS aGeNT, aNd hAD by LAw coNStItuTed hIM ITs AgENt In CAlIforNia tO RECEIve SErVICe of PrOCeSs in ITs BEhALF. THe judGMEnt WAS OrDEred ReInstAted. 7 fROm tHe reiNSTAtEd judgMenT aPpEllANT Has TAkEn the PrESeNT appeAL, ClaimING ThAT tHe EviDence Is iNSUFFiCiENT tO SuPporT THe coUrt's finDIng oF AgeNCY. iS THe POiNt NoW oPeN tO inquiRY? WE Think NoT. tHis couRT'S oRIgINaL DeCIsIOn conSTITuTeS THe laW oF tHe cAse. IT cLeARly IMplIEd THat oN ThE EVIdENCE In tHE recoRd thE isSuE wAs oNE Of fACT fOR THe TrIAL coURT'S DEteRmINATIon, NOT onE of lAw fOr OURsElveS. hAD we DEemED the eVidence InsUFFicIeNt as a MaTTER oF lAW to SupPorT A fiNdinG of juRiSDiCtion IT wouLd have BEen worSE ThaN an imPErtiNENce tO rEmAnD THe CASe For a fInDInG. we WOulD HaVe beEn oBligED TO rEvErse tHe juDgment oUtrigHT. nor, if wE WERe In DouBt wHETher oN thAt eVIDence a findinG OF JurISdicTiON COulD be SuStaiNEd By Us, wOUld we HAVe ThOugHt IT prOPer to unDERTakE aT THAT JunCTUre THe vERY cONsIdeRaBlE AnD perHaps WholLY futILE tAsk oF paSsING On THE merITs. TAKINg thE oPiNIoN BY Its four CORnERs We ConsTRuE it aS HoLdiNg THAT THE tRiAl courT'S FINding of FacT WaS TO BE ACCEpTEd As CONCLusIVE oF tHe quEsTIon Of tHE vaLIdiTy oF tHe serViCe. 8 TrUe, the rULE We aPply HerE IS Not a cOmPUlSiVE PRIncipLE aKin To rES JudIcAta. tHE pHrASe laW OF thE cAse eXPREssEs rAtHeR THe GeNeRAL prACtiCe of The COurTS to dEcline tO rEOpEN what tHey have ALrEaDy iN EfFeCT DeCIDeD. mesSENGer V. anDErson, 225 U.s. 436, 444, 32 S.Ct. 739, 56 L.ed. 1152. cf. PEOpLE OF STATE Of iLLInoiS eX Rel. HunT V. ILlInOIS CenTRaL R. CO., 184 U.s. 77, 91, 22 s.cT. 300, 46 L.eD. 440. tHE RuLE is GROunded IN Large PART ON The pOLIcy Of eNding lItiGatIOn, anD iN SOME InsTANces on the want Of pOweR iN AN appelLaTe cOurT tO MODIFY itS OwN judgMENts oThERwise THaN On A reHEARIng. aND iT HAS BEEN poIntEDLY oBServed THAT if tHE PrACTICe weRe NoT FoLlOwEd, cHAngES IN THE PeRSOnnel OF thE coUrt WOUld pRODucE confUSiOn. ClARY V. HOagLaNd, 6 caL. 685; OAKLey V. ASPinWALl, 13 N.y. 500, 501. fOr a comPREHENSIVe STaTemeNt OF tHe DocTRiNE AND foR CITAtIOnS oF THE aLMosT nuMBerLESS caSES beAriNg On iT, SeE 5 c.j.S., appEAL AnD ErRor, § 1821 et sEQ.; 21 c.j.s., cOurTS, § 195 et seq. 9 APPLIcaTioN of ThE dOctrinE IN This iNsTANCE woulD reSuLT iN nO InJuSTIce or HaRdSHIP sinCE A TRIAL ON thE mEriTs HaS alreADy bEEN had. 10 AfFIrMed. NOTEs: 1 THe foRMal JUDGmEnt ENterED By OuR cLERk fOLlOWeD eXPLicITLy thIs LANGUaGe, aND DIREcTEd Also AN EqUAl DIViSION Of ThE cOsts Of thE ApPeAL 2 "THAt elMER preUER is THe sOLE PROPRiEToR oF wooDWoRkERS Supply ComPANY; thaT deFenDanT, WoODwoRkERS tool WORKs, A corPoration, Was enGageD iN SElLING Its prOdUcTS IN CalifoRniA thRough tHE ageNcy Of saID woODWoRKErS suPplY cOmPaNy; ThAt ThE pAneL raiSEr heAd InVoLVEd IN This AcTiOn Was SolD tO plAInTIFf's EmPloYeR, SeLby CoMPAny, iN cAliforNia bY DEFENDaNT tHROuGH sAID WOoDWOrkeRs sUPPLY COMPANY; tHAT DefENdanT Had a RuNNINg CourSe OF bUSiNESs Every yEar aNd SOld sOMe Of iTs IteMS At ALl TiMEs In cALIforNIa throUGh sAiD WoodwOrKeRs SUppLy compANY ON A cOMMission basiS; that DEfeNDANT's BuSinESS oF SeLling itS ProduCTS in CAlIfOrNIa thRouGH tHe agency OF saiD WOOdWORKers sUPplY cOmPanY WAS COnTInUouS anD SystEMATIc; ThaT SAId pANEL rAiSER HeAd as well as otHEr ProDucTS Of dEfEnDant SoLd In cAliFOrnIa wErE ShiPPEd BY dEfeNDANT cOMPAny diRECTLy TO The pURCHAsERS thRouGh oRdERs RECEiVED FRom woODWoRKErs sUpPLY cOmPanY AND PAID For By purcHASeRS tHROUGH SAID woODwORKers SUpply coMpaNy; THAT saId WoODwoRKERS sUpPLY ComPANY wAs THE agEnt of dEFENDant, wOODWorKErS TOOL WORks, as tHEiR IDeNTiTY OF nAmes impliEs."	202 F.2d 530 WOODWORKERS TOOL WORKSv.BYRNE.No. 13236. United StatesCourt of Appeals Ninth Circuit. March 10, 1953. Tripp & Calloway, Los Angeles,Cal., for appellant. John W.Olson,LosAngeles, Cal., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. HEALY, CircuitJudge. 1 This action is for damages for personal injury sustained by appellee in consequenceof the disintegrationof an allegedly defectivepanelraiser head manufactured by appellant,an Illinois corporation, and shipped by it to appellee's employer in California, of which state appellee is a resident. A verdictawarding damages was returned and a judgment entered thereon. 2 On appeal from thatjudgment, Woodworkers Tool Works v. Byrne, 9 Cir., 191 F.2d 667, this court held with appellee onthe merits. But a motion of appellant to quash the service ofsummonshad been denied by the trial court, and we thought, 191F.2d at pages670-673, that the showing before the court at the time the motion was ruled on, goingto theissue whether appellanthad constituted one Preuer by law an agent in California to receive service of process on its behalf, was insufficient to warrant the denial. We noted, however,thatduring the courseofthetrial substantialoral evidence had been received tending to show the existence of the necessary agency relationship betweenappellant and Preuer, and wesummarize this evidence, 191F.2d at page 673; but it was further noted that the trial judge regardedthejurisdictional problem ashaving alreadybeen determined,hence had not taken the oral evidence into account except forsuch bearing as itmight have onthe merits. 3 We were of opinion thatthe issue of the validity of the service, inasmuch as it was one ofdue process, was open to further examinationand that the evidence adduced on the trialmight properly be considered as supplementing the original showing on that issue. We said, 191 F.2d at page 673, that"if there be added to the evidence which was before the court atthe time of the denial of the motion to quash the service of thesummonsthe evidence adduced at the trial, particularly that of Preuer hereinbefore referredto there might be abasis tosustain a conclusion that Woodworkers Tool Works had made Preuer its agent. This issue cannot be resolved without a finding thereon by the trier of fact and therefore upon remandit will be necessary for the court below to make an appropriate finding upon the presentrecord." 4 After considerationand disposition oftheremaining issues the court made the following order: "To the end thatthe court below may determine the question of whether the evidence now in therecord is sufficient to sustain Byrne's contention thatWoodworkers Tool Works made Woodworkers SupplyCompany, viz., Preuer, its agent for the service ofprocess in California, we vacate the judgmentand remandthe cause with the directionto the court below to proceed to determine that issue. Ifthe court determines the evidence of agency tobe sufficient it will possess the authority toreinstate the judgment."1 5 Neither party petitionedfor a rehearing.6 Upon remand the trial court on the existing record made appropriate findings of fact asshown in the footnote,2and concluded that at and prior to timeof service appellant was doing business in California through Preuer as itsagent, and had by law constituted him itsagent in California to receive serviceofprocess inits behalf. The judgment was ordered reinstated. 7 From the reinstated judgment appellant has taken the present appeal, claiming that the evidence is insufficient to support the court's finding of agency. Is thepoint nowopen to inquiry? We think not. Thiscourt'soriginaldecision constitutes the law of thecase. It clearly implied that on the evidence in the record theissue wasone of fact for the trialcourt's determination, not one of law for ourselves. Had we deemed the evidence insufficient as a matter of law to support a finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding.We would have been obliged to reverse the judgment outright. Nor, if wewerein doubt whether onthat evidence a finding of jurisdiction could besustained by us, would we havethought it proper to undertake at that juncturethe very considerable and perhaps wholly futile task of passingon the merits. Taking the opinion by its fourcorners we construe it as holding that the trial court'sfindingof fact was to be accepted as conclusive of the question of the validity of the service. 8 True, the rule we apply here isnot a compulsive principle akin to res judicata. Thephrase law of the caseexpresses ratherthe general practice of the courts to decline to reopen what they have already ineffect decided. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152. Cf. People of State of Illinois ex rel.Hunt v. Illinois Central R. Co.,184 U.S. 77, 91, 22 S.Ct. 300, 46 L.Ed. 440. The ruleisgrounded in large part on the policy of ending litigation, and in some instances onthe want of power in an appellatecourttomodify its own judgments otherwisethan on a rehearing. And it has been pointedly observed that if the practice were not followed, changes in the personnel ofthe court would produce confusion. Clary v.Hoagland, 6Cal. 685; Oakley v. Aspinwall, 13 N.Y. 500, 501. For a comprehensive statementof the doctrine and for citations of the almost numberlesscases bearing on it, see 5 C.J.S., Appeal and Error, §1821 etseq.; 21 C.J.S., Courts, § 195 et seq. 9Application of the doctrinein this instance would resultin no injustice or hardship since a trial on themerits hasalready been had. 10 Affirmed. Notes: 1 The formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of the costsof the appeal 2 "That Elmer Preuer isthe soleproprietor of Woodworkers SupplyCompany; that defendant, Woodworkers Tool Works, a corporation, was engaged in selling itsproducts in California through the agency of said Woodworkers Supply Company; that the panel raiserheadinvolved in this action was sold to plaintiff's employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had a running course of business every year andsold some of its items at all times in California through said Woodworkers SupplyCompany on a commission basis; thatdefendant's business ofselling its products in California through the agency of said Woodworkers Supply Company was continuousand systematic; thatsaid panel raiserhead as well asother products ofdefendant sold in California wereshipped by defendant companydirectly to the purchasers throughorders received fromWoodworkers SupplyCompany and paid for by purchasers through said Woodworkers Supply Company; thatsaid Woodworkers Supply Company was theagent of defendant,WoodworkersTool Works, as their identity of names implies."	202 F.2d 530 WOODWORKERS TOOL WORKSv.BYRNE. _No._ _13236._ _United_ States Court of Appeals Ninth Circuit. March 10, 1953. _Tripp_ & Calloway, Los Angeles, Cal., for appellant. John W. Olson, Los Angeles, Cal., for appellee. Before STEPHENS, _HEALY,_ and POPE, Circuit Judges. _HEALY,_ Circuit Judge. _1_ This action _is_ for damages _for_ personal injury sustained by appellee in consequence _of_ _the_ disintegration _of_ an allegedly defective _panel_ raiser head manufactured by appellant, an Illinois corporation, and shipped by it to appellee's employer in California, _of_ which state appellee _is_ a resident. _A_ verdict awarding _damages_ was _returned_ and a judgment entered thereon. _2_ On appeal from that _judgment,_ Woodworkers Tool Works v. Byrne, 9 _Cir.,_ 191 F.2d 667, this court held with appellee on the merits. _But_ a motion of appellant _to_ quash the service of summons had _been_ denied by the _trial_ _court,_ and we thought, 191 F.2d at pages 670-673, that the _showing_ _before_ _the_ court _at_ the time the motion _was_ ruled _on,_ going _to_ the issue whether _appellant_ had constituted _one_ Preuer by _law_ an agent in California to receive service of process on its behalf, was insufficient to warrant the denial. We noted, however, that _during_ the course _of_ the trial _substantial_ oral evidence had been received tending to show the _existence_ of the _necessary_ _agency_ relationship between appellant and Preuer, _and_ we summarize _this_ evidence, 191 _F.2d_ at page _673;_ but _it_ was further noted that the trial judge regarded the _jurisdictional_ problem as having already been determined, _hence_ had not taken _the_ oral evidence into account except for such bearing as it might have on the merits. _3_ We were _of_ opinion that _the_ _issue_ of the _validity_ of the _service,_ _inasmuch_ as _it_ was one of _due_ process, _was_ open _to_ further examination and that _the_ evidence adduced on the trial might properly be considered as supplementing _the_ _original_ showing on that _issue._ We said, 191 F.2d at page 673, _that_ "if there _be_ _added_ to the _evidence_ which was before the court at the time of the denial _of_ the motion to quash the service _of_ the summons the evidence _adduced_ at the trial, particularly that _of_ Preuer hereinbefore referred to there might be a _basis_ _to_ sustain a conclusion that Woodworkers Tool Works had _made_ Preuer its agent. _This_ _issue_ cannot be resolved _without_ _a_ finding thereon by the trier of fact and therefore upon remand it will be _necessary_ for the court below to _make_ an appropriate finding upon the present _record."_ 4 After consideration and _disposition_ of the remaining issues the court made the following order: "To the _end_ _that_ the court below may determine _the_ question _of_ _whether_ the _evidence_ now in the record is sufficient to sustain Byrne's _contention_ that Woodworkers Tool Works made Woodworkers Supply Company, viz., Preuer, its agent for the _service_ _of_ process _in_ California, we vacate the judgment and _remand_ the cause with _the_ direction to _the_ court _below_ to _proceed_ _to_ determine that issue. If the court determines the evidence of agency _to_ be _sufficient_ _it_ will possess the _authority_ to reinstate the judgment."1 5 _Neither_ party petitioned for _a_ _rehearing._ 6 Upon _remand_ _the_ trial court on the existing record made _appropriate_ _findings_ of _fact_ as shown _in_ the footnote,2 _and_ concluded that at and prior to time of service _appellant_ was doing business in _California_ through _Preuer_ as its agent, and had by _law_ _constituted_ him its agent in California to receive service of process in _its_ _behalf._ The judgment was ordered reinstated. 7 From the reinstated _judgment_ _appellant_ has _taken_ the present appeal, _claiming_ that the evidence is insufficient to _support_ the _court's_ _finding_ of agency. _Is_ the _point_ now open _to_ inquiry? _We_ think not. _This_ court's original decision constitutes _the_ _law_ of the case. It _clearly_ implied _that_ on the evidence in the _record_ the issue was _one_ _of_ fact for the trial court's determination, not one of law for ourselves. Had we _deemed_ the evidence insufficient as a matter of law to support a finding of jurisdiction it _would_ have _been_ worse _than_ an _impertinence_ to _remand_ the case for a finding. We would have been obliged to reverse the judgment outright. _Nor,_ if we were in _doubt_ whether on that evidence a finding of jurisdiction could be sustained by us, _would_ _we_ _have_ thought it proper to undertake at that _juncture_ the very _considerable_ and perhaps wholly _futile_ task _of_ passing on the merits. Taking _the_ opinion by its _four_ _corners_ we construe it as holding _that_ the _trial_ _court's_ _finding_ of fact was to be accepted as conclusive of _the_ _question_ of _the_ validity of _the_ service. 8 True, the rule we apply _here_ _is_ not a compulsive principle akin to res judicata. The _phrase_ law of _the_ case expresses _rather_ the general practice of _the_ courts to decline _to_ reopen what they have already _in_ effect decided. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. _739,_ 56 L.Ed. _1152._ Cf. _People_ of _State_ of Illinois ex rel. Hunt v. Illinois Central R. Co., 184 U.S. 77, _91,_ 22 S.Ct. 300, _46_ L.Ed. 440. The rule is grounded _in_ _large_ part on the policy of ending litigation, and in some instances on the want of power in _an_ appellate court to modify its own judgments _otherwise_ than on a rehearing. And it has been pointedly observed that if _the_ practice were not followed, changes in the personnel of the _court_ would produce confusion. Clary _v._ Hoagland, 6 _Cal._ 685; Oakley v. Aspinwall, 13 N.Y. 500, 501. _For_ a _comprehensive_ statement of _the_ doctrine _and_ for citations of the almost _numberless_ cases _bearing_ on it, see 5 C.J.S., Appeal and Error, § 1821 _et_ seq.; 21 C.J.S., Courts, § 195 et _seq._ 9 Application _of_ the doctrine in _this_ instance would result in no _injustice_ or _hardship_ since a trial on the merits has already been had. 10 Affirmed. _Notes:_ 1 The _formal_ judgment entered by our clerk followed explicitly this language, and directed _also_ an equal division of the costs of the _appeal_ _2_ "That _Elmer_ _Preuer_ is _the_ sole _proprietor_ of Woodworkers Supply Company; _that_ _defendant,_ _Woodworkers_ Tool Works, a corporation, was _engaged_ in selling its products _in_ California through the _agency_ _of_ said _Woodworkers_ Supply Company; that the panel raiser head involved _in_ this action was sold to plaintiff's employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had _a_ running course of business every _year_ _and_ sold some of _its_ items at _all_ _times_ _in_ California through _said_ Woodworkers _Supply_ Company on a commission basis; that _defendant's_ business _of_ _selling_ its products in California _through_ the agency of said Woodworkers Supply _Company_ was _continuous_ and _systematic;_ that _said_ panel raiser head _as_ well as _other_ _products_ of defendant sold in California were shipped by defendant company _directly_ to the _purchasers_ through _orders_ received from Woodworkers Supply Company and paid for by purchasers _through_ said Woodworkers Supply Company; that said Woodworkers Supply Company was the agent of defendant, _Woodworkers_ _Tool_ _Works,_ as their identity of names implies."
J-A08035-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIK R. SURRATT : : Appellant : No. 469 WDA 2018 Appeal from the Judgment of Sentence Entered January 10, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005355-2005, CP-02-CR-0005495-2005 BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 26, 2019 Erik R. Surratt appeals from the judgment of sentence entered following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Surratt claims that in fashioning his sentence, the PCRA1 court erroneously considered him an adult, failed to consider whether he was capable of rehabilitation, and failed to consider the Miller factors. We affirm. Surratt was one of three individuals involved in a shooting that resulted in the death of two victims and one victim being wounded. Surratt shot one of the victims that died. Surratt was approximately 17 ½ years old at the time of the murders. A jury convicted Surratt of two counts of first-degree murder and other offenses. In 2008, the trial court sentenced Surratt to two life ____________________________________________ 1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. J-A08035-19 sentences without parole and 25 to 50 years’ incarceration for the remaining charges. This Court affirmed the judgment of sentence. In 2017, the PCRA court granted Surratt a resentencing, pursuant to Miller and Montgomery. At the resentencing hearing, Surratt presented five witnesses. One of the witnesses was a forensic social worker who testified to Surratt’s rehabilitation. Following two hearings, the PCRA court resentenced Surratt to 40 years’ incarceration to life imprisonment. Surratt filed a post-sentence motion which the trial court denied. This timely appeal followed. On appeal, Surratt raises the following issues: I. Whether the lower court erred and abused its discretion in imposing a 40-year minimum sentence because the Court failed to acknowledge or appropriately consider the factors laid out in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), in light of the diminished capabilities and greater prospects for reform of the adolescent offender. II. Whether the lower court erred and abused its discretion by placing excessive weight on the facts of the crime rather than focusing on Miller’s central question of whether the juvenile is capable of rehabilitation. The facts of the murder are not determinative in assessing permanent incorrigibility. III. Whether the lower court erred and abused its discretion by impermissibly considering Mr. Surratt to be an adult at the time of the offense, repeatedly referring the “arbitrary line” the U.S. Supreme Court had drawn between offenders under the age of 18 and those who are 18 and older. The Court does not have the discretion to make a finding contrary to the United States Supreme Court’s “legal conclusion[s] . . . and the facts (scientific studies) underlying it” when it concerns the inherent traits associated with adolescent development. See Commonwealth v. Batts, 163 A.3d 410, 437 (Pa. -2- J-A08035-19 2017). Because the Commonwealth failed to introduce any new evidence at the resentencing hearing, the Court also lacked competent evidence to make the aforementioned finding. Surratt’s Br. at 6-7. Surratt’s first two claims challenge discretionary aspects of his sentence. See Commonwealth v. White, 193 A.3d 977, 981 (Pa.Super. 2018) (concluding claims that trial court failed to consider Miller factors and did not consider rehabilitative evidence are challenges to discretionary aspects of sentence). As such, we must first determine whether: (1) the appeal is timely; (2) the issue is preserved; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement; and (4) a substantial question is raised. See Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017). Here, Surratt has satisfied the first three factors. We now address whether he has raised a substantial question. Surratt maintains that the PCRA court imposed an excessive sentence and failed to consider his mitigating factors. He claims that the PCRA court incorrectly “considered [him] an adult at the time of the crime, and focused on the life without parole sentences imposed on [his] adult co-defendants.” Surratt’s Br. at 14-15. He also maintains that the sentence imposed by the court is excessive for a crime that was committed by a juvenile and is “contrary to the fundamental norms underlying the sentencing process, and is inconsistent with the Sentencing Code.” Id. at 15. -3- J-A08035-19 Surratt’s claim of an excessive sentence paired with a claim that the court failed to consider his mitigating factors raises a substantial question. See Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015). Therefore, we will address the merit of his claims. We review a challenge to discretionary aspects of sentencing for an abuse of discretion. See Commonwealth v. Derry, 150 A.3d 987, 997 (Pa.Super. 2016). An abuse of discretion exists where “the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill[-]will, or arrived at a manifestly unreasonable decision.” Id. (quoting Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa.Super. 2007)). Surratt claims that the PCRA court “wholly failed to consider [his] individual, juvenile characteristics – focusing instead on the details of Surratt’s crime, improperly considering Surratt as an adult, and weighing the life sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. He argues it failed to consider his juvenile characteristics as referenced in Miller. To begin, the PCRA court was not required to consider the Miller factors. The Miller2 factors must be considered “when a juvenile is exposed to a potential sentence of life without the possibility of parole[.]” Commonwealth ____________________________________________ 2These factors include such things as “immaturity, impetuosity, and failure to appreciate risks and consequences; . . .” Batts II, 163 A.3d at 438 (quoting Miller, 567 U.S. at 477-78). -4- J-A08035-19 v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019); see also Batts II, 163 A.3d at 432. Here, the Commonwealth did not seek a life-without-parole sentence, and thus, the court was not required to consider the Miller factors. Commonwealth v. Lekka, --- A.3d ---, 2019 WL 2064541, at *9 (Pa.Super. filed May 10, 2019) (“In cases where the Commonwealth does not seek a life- without-parole sentence, the application of the Miller factors is not required”). While Surratt maintains that the PCRA court improperly considered him an adult, we disagree. The PCRA court conceded it had to reconsider Surratt’s sentence pursuant to Miller and Montgomery because Surratt was under the age of 18 at the time of the murders. However, the court observed that the age of majority was somewhat arbitrary and concluded that, as Surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated, in part, by his	j - a08035 - 19 non - precedential decision - see superior court i. o. p. 65. 37 commonwealth of pennsylvania : in massachusetts superior court of : pennsylvania : v. : : : erik r. surratt : : appellant : no. 469 wda 2018 appeal from the judgment of sentence entered january 10, 2018 in the court of common pleas of somerset county criminal division at no ( s ) : cp - 02 - cr - 0005355 - 2005, cp - 02 - cr - 0005495 - 2005 before : panella, p. j., stabile, j., thomas mclaughlin, j. memorandum by mclaughlin, j. : filed july 26, 2019 erik r. surratt appeals from the judgment of sentence entered following a resentencing hearing pursuant to miller v. alabama, 567 u. s. 460 ( 2012 ), and montgomery v. louisiana, 136 s. p. 718 ( 2016 ). surratt claims that in fashioning parole sentence, the pcra1 investigators erroneously considered him an adult, failed to consider whether he was capable of parole, and failed to consider specific miller factors. we affirm. surratt was one of three individuals involved in a shooting that resulted in the death of two victims and one victim being wounded. surratt shot one of the victims that died. surratt was approximately 17 ½ years old by the time of the murders. a jury convicted surratt of two counts of first - degree murder and other offenses. in 2008, the trial court sentenced surratt to two life _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 post conviction relief act, 42 pa. c. s. a. § § 9541 - 9546. j - a08035 - 19 sentences without parole and 25 to 50 years ’ incarceration for the remaining charges. this court affirmed the judgment of sentence. in 2017, the pcra court granted surratt a resentencing, pursuant to miller and montgomery. at the resentencing hearing, surratt presented five witnesses. one of the witnesses was a forensic social worker which testified to surratt ’ s rehabilitation. following two hearings, the pcra court resentenced surratt to 40 years ’ incarceration to life imprisonment. surratt filed a post - sentence motion which the trial court denied. this timely appeal followed. on appeal, surratt raises the following issues : i. whether the lower court erred and abused its discretion in imposing a 40 - year minimum sentence because the court failed to acknowledge or appropriately consider the factors laid out in miller v. alabama, 567 u. s. 460 ( 2012 ), and montgomery v. louisiana, 136 s. ct. 718 ( 2016 ), in light of the diminished capabilities and greater prospects for reform of the adolescent offender. ii. whether the lower court erred and abused its discretion by placing excessive weight on the facts of the crime rather than focusing on miller ’ s central question of whether the juvenile is capable of rehabilitation. the facts of the murder are not determinative in assessing permanent incorrigibility. iii. whether the lower court erred and abused its discretion by impermissibly considering mr. surratt to be an adult at the time of the offense, repeatedly referring the “ arbitrary line ” the u. s. supreme court had drawn between offenders under the age of 18 and those who are 18 and older. the court does not have the discretion to make a finding contrary to the united states supreme court ’ s “ legal conclusion [ s ]... and the facts ( scientific studies ) underlying it ” when it concerns the inherent traits associated with adolescent development. see commonwealth v. batts, 163 a. 3d 410, 437 ( pa. - 2 - j - a08035 - 19 2017 ). because the commonwealth failed to introduce any new evidence at the resentencing hearing, the court also lacked competent evidence to make the aforementioned finding. surratt ’ s br. at 6 - 7. surratt ’ s first two claims challenge discretionary aspects of his sentence. see commonwealth v. white, 193 a. 3d 977, 981 ( pa. super. 2018 ) ( concluding claims that trial court failed to consider miller factors and did not consider rehabilitative evidence are challenges to discretionary aspects of sentence ). as such, we must first determine whether : ( 1 ) the appeal is timely ; ( 2 ) the issue is preserved ; ( 3 ) appellant ’ s brief includes a pa. r. a. p. 2119 ( f ) statement ; and ( 4 ) a substantial question is raised. see commonwealth v. battles, 169 a. 3d 1086, 1090 ( pa. super. 2017 ). here, surratt has satisfied the first three factors. we now address whether he has raised a substantial question. surratt maintains that the pcra court imposed an excessive sentence and failed to consider his mitigating factors. he claims that the pcra court incorrectly “ considered [ him ] an adult at the time of the crime, and focused on the life without parole sentences imposed on [ his ] adult co - defendants. ” surratt ’ s br. at 14 - 15. he also maintains that the sentence imposed by the court is excessive for a crime that was committed by a juvenile and is “ contrary to the fundamental norms underlying the sentencing process, and is inconsistent with the sentencing code. ” id. at 15. - 3 - j - a08035 - 19 surratt ’ s claim of an excessive sentence paired with a claim that the court failed to consider his mitigating factors raises a substantial question. see commonwealth v. swope, 123 a. 3d 333, 339 ( pa. super. 2015 ). therefore, we will address the merit of his claims. we review a challenge to discretionary aspects of sentencing for an abuse of discretion. see commonwealth v. derry, 150 a. 3d 987, 997 ( pa. super. 2016 ). an abuse of discretion exists where “ the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill [ - ] will, or arrived at a manifestly unreasonable decision. ” id. ( quoting commonwealth v. hoch, 936 a. 2d 515, 517 - 18 ( pa. super. 2007 ) ). surratt claims that the pcra court “ wholly failed to consider [ his ] individual, juvenile characteristics – focusing instead on the details of surratt ’ s crime, improperly considering surratt as an adult, and weighing the life sentences imposed on surratt ’ s adult co - defendants. ” surratt ’ s br. at 18. he argues it failed to consider his juvenile characteristics as referenced in miller. to begin, the pcra court was not required to consider the miller factors. the miller2 factors must be considered “ when a juvenile is exposed to a potential sentence of life without the possibility of parole [. ] ” commonwealth _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2these factors include such things as “ immaturity, impetuosity, and failure to appreciate risks and consequences ;... ” batts ii, 163 a. 3d at 438 ( quoting miller, 567 u. s. at 477 - 78 ). - 4 - j - a08035 - 19 v. machicote, 206 a. 3d 1110, 1120 ( pa. 2019 ) ; see also batts ii, 163 a. 3d at 432. here, the commonwealth did not seek a life - without - parole sentence, and thus, the court was not required to consider the miller factors. commonwealth v. lekka, - - - a. 3d - - -, 2019 wl 2064541, at * 9 ( pa. super. filed may 10, 2019 ) ( “ in cases where the commonwealth does not seek a life - without - parole sentence, the application of the miller factors is not required ” ). while surratt maintains that the pcra court improperly considered him an adult, we disagree. the pcra court conceded it had to reconsider surratt ’ s sentence pursuant to miller and montgomery because surratt was under the age of 18 at the time of the murders. however, the court observed that the age of majority was somewhat arbitrary and concluded that, as surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated, in part, by his	J - A08035 - 19 NON - PRECEDENTIAL DECISION - SEE SUPERIOR DOUDT I. O. P. 65. 37 COMMONWEALTH OF PENNSYLVANIA: IN THE SUPERIOR COURT OF: PENNSYLVANIA: v. :: : ERIK R. SURRATT: : Appellant: No. 469 WDA 2018 Appeal from the Judgment of Sentence Entered January 10, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No (s ): CP - 02 - CR - 0005355 - 2005, CP - 02 - CR - 0005495 - q00R BEFORE: PANELLA, P. J. , STABILE, J. , and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J. : FILED JULY 26, 2019 Erik R. Surratt appeals from the judgment of sentence entered following a resentencing hearing purs6anR to Miller v. Alabama, 567 U. S. 460 (2012 ), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016 ). Surratt claims that in fashioning his sentence, the PCRA1 court erroneously considered him an adult, failed to consider whether he was capable of rehabilitation, and failed to consider the Miller factors. We affirm. Surratt was one of three individuals involved in a shooting that resulted in the death of two victims and one victim being wounded. Surratt shot one of the victims that died. Surratt was approximately 17 ½ years old at the time of the murders. A jury convicted Surratt of two counts of first - degree murder and other offenses. In 2008, the trial court sentenced Surratt to two life ____________________________________________ 1 Post Conviction Relief Act, 42 Pa. C. S. A. § § 9541 - 9546. J - A08035 - 19 sentences without parole and 25 to 50 years ’ incarceration for the remaining charges. This Court affirmed the judgment of sentence. In 2017, the PCRA court granted Surratt a resentencing, pursuant to Miller and Montgomery. At the resentencing hearing, Surratt presented five witnesses. One of the witnesses was a forensic social worker who testified to Surratt ’ s rehabilitation. Following two hearings, the PCRA court resentenced Surratt to 40 years ’ incarceration to life imprisonment. Surratt filed a pozG - sentence motion which the trial court denied. This timely appeal followed. On appeal, Surratt raises the following issues: I. Whether the lower court erred and abused its discretion in imposing a 40 - year minimum sentence because the Court failed to acknowledge or appropriately consider the factors laid out in Miller v. Alabama, 567 U. S. 460 (2012 ), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016 ), in light of the diminished capabilities and greater prospects for reform of the adolescent offender. II. Whether the lower court erred and abused its discretion by placing excessive weight on the facts of the crime rather than focusing on Miller ’ s central question of whether the juvenile is capable of rehabilitation. The facts of the murder are not determinative in assessing permanent incorrigibility. III. Whether the lower c0jrt erred and abused its discretion by impermissibly considering Mr. Surratt to be an adult at the time of the offense, repeatedly referring the “ arbitrary line ” the U. S. Supreme Court had drawn between offenders under the age of 18 and those who are 18 and older. The Court does not have the discretion to make a finding contTa3y to the United States Supreme Court ’ s “ legal conclusion [s ]. .. and the facts (scientific studies) underlying it ” when it concerns the inherent traits associated with adolescent development. See Commonwealth v. Batts, 163 A. 3d 410, 437 (Pa. - 2 - J - A08035 - 19 2017 ). Because the Commonwealth failed to introduce any new evidence at the resentencing hearing, the Court also lacked competent evidence to make the aforementioned finding. Surratt ’ s Br. at 6 - 7. Surratt ’ s first two claims challenge discretionary aspects of his sentence. See Commonwealth v. White, 193 A. 3d 977, 981 (Pa. Super. 2018) (concluding claims that trial court failed to consider Miller factors and did not consider rehabilitative evidence are challenges to discretionary aspects of sentence ). As such, we must first determine whether: (1) the appeal is timely; (2) the issue is preserved; (3) appellant ’ s brief includes a Pa. R. A. P. 2119 (f) statement; and (4) a substantial question is raised. See Commonwealth v. Battles, 169 A. 3d 1086, 1090 (Pa. Super. 2017 ). Here, Surratt has satisfied the first three factors. We now address whether he has raised a substantial question. Surratt maintains that the PCRA court imposed an excessive sentence and failed to consider his mitigating factors. He claims that the PCRA court incorrectly “ considered [him] an adult at the time of the crime, and focused on the life without parole sentences imposed on [his] adult co - defendants. ” Surratt ’ s Br. at 14 - 15. He also maintains that the sentence ikpPsed by the court is excessive for a crime that was committed by a juvenile and is “ contrary to the fundamental norms underlying the sentencing process, and is inconsistent with the Sentencing Code. ” Id. at 15. - 3 - J - A08035 - 19 Surratt ’ s claim of an excessive sentence paifsd with a claim that the court failed to consider his mitigating factors raises a substantial question. See Commonwealth v. Swope, 123 A. 3d 333, 339 (Pa. Super. 2015 ). Therefore, we will address the merit of his claims. We review a challenge to discretionary aspects of sentencing for an abuse of discretion. See Commonwealth v. Derry, 150 A. 3d 987, 997 (Pa. Super. 2016 ). An abuse of discretion exists where “ the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill [-] will, or arrived at a manifestly unreasonable decision. ” Id. (quoting Commonwealth v. Hoch, 936 A. 2d 515, 517 - 18 (Pa. Super. 2007) ). Surratt claims that the PCRA court “ wholly failed to consider [his] individual, juvenile characteristics – focusing instead on the details of Surratt ’ s crime, improperly considering Surratt as an adult, and weighing the life sentences imposed on Surratt ’ s adult co - defendants. ” Surratt ’ s Br. at 18. He argues it failed to consider his juvenile characteristics as referenced in Miller. To begin, the PCRA court was not required to consider the Miller factors. The Miller2 factors must be considered “ when a juvenile is exposed to a potential sentence of life wjrhout the possibility of parole [.] ” Commonwealth ____________________________________________ 2These factors include such things as “ immaturity, impetuosity, and failure to appreciate risks and consequences; .. . ” Batts II, 163 A. 3d at 438 (quoting ,illRr, 567 U. S. at 477 - 78 ). - 4 - J - A08035 - 19 v. Machicote, 206 A. 3d 1110, 1120 (Pa. 2019 ); see also Batts II, 163 A. 3d at 432. Here, the Commonwealth did not seek a life - without - parole sentence, and thus, the court was not required to consider the Miller factors. Commonwealth v. Lekka, - - - A. 3d - - -, 2019 WL 2064541, at * 9 (Pa. Super. filed May 10, 2019) (“ In cases where the Commonwealth does not seek a life - without - parole sentence, the application of the Miller factors is not required ” ). While Surratt maintains that the PCRA court improperly considered him an adult, we disagree. The PCRA court conceded it had to reconsider Surratt ’ s sentence pursuant to Miller and Montgomery because Surratt was under the age of 18 at the time of the murders. However, the court observed that the age of majority was somewhat arbitrary and concluded that, as Surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated, in part, by his	NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : ERIK R. SURRATT : : Appellant : No. 469 WDA 2018 from the Judgment of Sentence Entered January 10, 2018 In the Court of Common Pleas Allegheny County Criminal Division at No(s): CP-02-CR-0005355-2005, CP-02-CR-0005495-2005 BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J. BY McLAUGHLIN, J.: FILED JULY 26, 2019 Erik R. Surratt appeals from the judgment of sentence entered following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Surratt claims that in fashioning his sentence, the PCRA1 court erroneously considered an adult, failed to consider whether was capable of rehabilitation, and failed to consider the Miller factors. We affirm. Surratt was one of three individuals in a shooting that resulted in the two victims and one victim wounded. Surratt shot one of the victims that died. Surratt was approximately 17 years at the time of the murders. A jury convicted Surratt of two counts of first-degree murder and other offenses. In 2008, the trial court sentenced Surratt to two life ____________________________________________ Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. J-A08035-19 sentences without parole and 25 to 50 years’ incarceration for the remaining charges. This Court affirmed the judgment of sentence. 2017, the PCRA court granted Surratt a resentencing, pursuant to Miller Montgomery. At the resentencing hearing, Surratt presented five witnesses. One of the witnesses was a forensic social worker who testified to Surratt’s rehabilitation. Following two hearings, the PCRA court resentenced Surratt to years’ incarceration to life imprisonment. Surratt filed motion which the trial denied. This timely appeal followed. On appeal, Surratt raises the issues: I. Whether the lower court erred and abused its discretion in imposing a 40-year sentence Court failed to acknowledge or appropriately consider the factors laid out in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), in light of the diminished capabilities and greater prospects for reform of the adolescent offender. II. Whether the lower court and abused its discretion by placing weight the facts of the crime rather than focusing on Miller’s question of whether the juvenile is of rehabilitation. The of the murder are not determinative assessing permanent incorrigibility. III. Whether lower erred and its discretion by impermissibly Mr. to be an adult at the time of the referring the “arbitrary line” the U.S. Supreme Court had drawn between offenders under the of 18 and those are 18 older. The Court does not have the discretion to a finding contrary to the United States Supreme Court’s “legal conclusion[s] . . and the facts studies) underlying it” when it concerns the inherent traits associated with adolescent See Commonwealth v. Batts, 163 A.3d 410, 437 (Pa. -2- J-A08035-19 2017). Because the failed to introduce any evidence at the resentencing hearing, the Court also lacked competent evidence to make the aforementioned finding. Surratt’s Br. at 6-7. Surratt’s first two claims challenge discretionary aspects of his sentence. Commonwealth v. White, 193 A.3d 977, 981 (Pa.Super. (concluding claims that trial court failed to Miller factors and did not rehabilitative evidence challenges to discretionary aspects of As such, must first determine whether: (1) the appeal is timely; (2) the issue is preserved; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) and (4) a substantial question raised. See Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017). Here, Surratt has the first three factors. We now address whether he has raised a substantial question. Surratt maintains the PCRA court imposed an excessive sentence and failed to his mitigating factors. He claims that PCRA court incorrectly “considered [him] an adult at the time of the crime, and focused on the life without parole sentences imposed on adult co-defendants.” Surratt’s Br. at 14-15. He also maintains that the sentence imposed by the court excessive a crime that was committed by a juvenile and is “contrary to the fundamental norms underlying the sentencing process, and is inconsistent with the Sentencing Code.” Id. at 15. J-A08035-19 claim an excessive sentence paired claim the court failed to consider his mitigating factors raises a substantial See v. Swope, 123 A.3d 333, 2015). Therefore, we will address the merit of his review a challenge to discretionary aspects of sentencing for abuse of discretion. See Commonwealth v. Derry, A.3d 2016). An abuse of discretion exists where “the sentencing court or misapplied the law, exercised judgment for reasons of partiality, prejudice, bias or ill[-]will, or arrived at manifestly unreasonable decision.” Id. (quoting Commonwealth v. Hoch, 936 A.2d 517-18 (Pa.Super. 2007)). Surratt claims the PCRA court “wholly failed to consider [his] individual, juvenile characteristics – instead on the details of Surratt’s crime, improperly considering Surratt as an weighing the life sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. He argues it failed consider his juvenile characteristics as referenced in Miller. To begin, the PCRA court was not required to the Miller The Miller2 must be considered “when a is exposed to a potential of life the possibility of parole[.]” Commonwealth 2These factors include such things as impetuosity, and failure to appreciate risks and . . Batts II, 163 A.3d at 438 Miller, 567 U.S. at 477-78). J-A08035-19 v. Machicote, 206 A.3d 1110, 1120 2019); see also Batts II, 163 A.3d at 432. Here, the Commonwealth did not seek a life-without-parole sentence, and the court was not required to consider the Miller factors. Commonwealth v. Lekka, --- A.3d ---, 2019 WL 2064541, at *9 (Pa.Super. filed May 10, 2019) (“In cases where the Commonwealth does not a life- without-parole sentence, the application of the Miller factors is not required”). While Surratt maintains that the PCRA court improperly considered him an adult, we The PCRA court conceded it had to reconsider sentence to Miller and Montgomery because Surratt was under the age of 18 at the of murders. the court observed the age of was somewhat arbitrary and concluded that, as Surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated, in part, by his	J-a08035-19 noN-PrECEDentIAl DEcISIon - sEE sUpErIOR COURT i.O.P. 65.37 CoMmonWEAlth Of PEnnSylVania : in The sUpeRIOr Court of : pEnNSylVaniA : V. : : : eRIk r. SURratT : : APpelLAnT : no. 469 WDa 2018 appEAL frOm tHe JuDgMENt of sEnTenCe ENteREd JaNuarY 10, 2018 IN THE coUrT oF comMon PlEAS OF aLleghENy County CRimiNAL diVisioN aT No(s): cP-02-CR-0005355-2005, cP-02-Cr-0005495-2005 befORe: PanEllA, P.J., StabIlE, J., aNd mClAUGHLIn, j. meMORaNDuM By MCLaUghLin, j.: filed JUlY 26, 2019 ERiK r. SUrrAtT APPeals fROM The jUdGmEnt of sEntENce entEred foLLOwinG A resenteNCING hEarInG pUrSuant to mILLeR v. aLABaMA, 567 u.S. 460 (2012), AND MoNTgOMERy V. loUisIAna, 136 s.Ct. 718 (2016). SurRAtt CLaiMS THAT In fAsHiOnING HIS SEnTeNCe, the pcRa1 CourT eRrOnEoUsLY CoNSiDERED HIm An aduLT, fAiLed To cONSIDer wHEther hE WaS cApABLE of rehABilitAtion, And fAILeD to cOnSIdER THe miLLEr factoRs. wE AFFIrm. SuRRATt was ONE of THRee INDiVidUALs inVoLved in A shOOTInG THat reSultEd In thE dEAtH OF TwO VIcTiMs AnD ONE vIctim BEINg wounDEd. sUrRaTt Shot oNE Of THE viCtImS tHat DIeD. SURrATT WaS apProxIMatElY 17 ½ YeaRS Old AT tHe TImE of THE mUrDeRs. a JURy CoNvIcTED sUrraTt of tWO CoUnTS OF FIrst-dEGrEE MuRDEr AND oTHeR offeNSEs. IN 2008, THe tRial coUrt sEnTenCED SUrRatt tO TwO LIFE ____________________________________________ 1 POsT cONVicTiON RelIeF ACt, 42 Pa.c.s.A. §§ 9541-9546. j-A08035-19 senTEnces wItHoUt ParolE AnD 25 tO 50 YEARs’ inCaRCerAtioN FOR The ReMAIninG chargEs. tHis CoURt aFfIRmED the JUdgMenT oF SEnTeNce. In 2017, the pCra COURT GRAnteD SURRaTT a rESeNtEnCING, PUrSuAnt to mILLer aND mOnTGoMeRy. aT ThE rEsENTeNCinG HEARInG, sUrrATt PRESEntEd fIVE WitnESsEs. oNe OF tHE WiTNeSsEs Was A foRENsiC sOCiaL worKER WHo tEStIfiED To Surratt’s rEHaBiliTAtioN. FolLoWing TWO HEarinGs, ThE pcra CouRT rEseNteNCeD SurRaTt TO 40 YeARS’ INCARCERatiON TO lIfE IMPRisoNmeNt. SurraTt filed A POst-SeNtEnce moTIoN wHicH The TriAL CoURT dEnIed. tHis timElY APpEAL fOlLoWeD. on appeAl, sURRATt RAiSES tHe folloWING issueS: I. wHEThEr thE LoWeR couRt erreD And ABUSEd its DIscrEtIOn IN iMPOsING A 40-YEaR MInIMUm SEnteNCE bECause ThE cOURT fAIlEd to aCKnowLEdge OR APProprIATELY CoNSidER tHe faCTOrs laid OUT iN MIlLer v. aLAbaMa, 567 u.s. 460 (2012), AND MoNtgOmEry v. LOUISianA, 136 s.Ct. 718 (2016), IN LiGht oF ThE dImINiShED CapABilItiES ANd GREatEr PRosPeCTs fOr REform Of THE adoLEscENT OffeNDeR. II. whEtheR tHe LOWeR cOurt eRREd AnD ABUsed ITS dIScRETioN by PLaCInG EXcesSIVe wEIght oN ThE faCTs Of the cRIME RATHer tHAN FOCusinG on MilLeR’S CENtRAl qUEStIOn Of WheTHER ThE JUVeNILe is CAPAbLe Of REHabilItation. THe FacTs oF The MuRDer aRE NOt DETermINATive iN ASSessIng perMaNEnT IncORRIGiBIliTy. iII. whETHer tHe LOwER COURT ErrEd AnD aBuSed ItS DIsCRetIon by IMpERMiSsibLY cOnSIdEring mr. sURrATt To BE an AdULT At The TIme OF ThE offensE, repEateDLy reFerriNg THe “aRBItraRY LiNe” tHe U.S. SUpRemE couRt HaD DraWN BETwEen ofFENders UNDer ThE aGe OF 18 And tHose whO are 18 anD Older. tHE coUrt dOes noT hAve The DiScREtIon To mAKe A fInDInG CoNtRaRy To The unITed StAtEs SUPREme couRt’S “LEGal cOncLUsIon[S] . . . And tHe FAcTS (scieNtIFIc StuDies) UNdErlyInG IT” whEn iT concerns THe inHErent trAItS ASsocIaTeD WitH aDOlesCEnt deveLoPMENT. see cOMMOnwEALth v. batTs, 163 a.3D 410, 437 (pA. -2- J-a08035-19 2017). BEcAUse the CoMmonWeAlTh fAiLed to InTRoDUcE ANy New eVIDence AT THE resEnTENcing heaRiNG, tHE CoUrt ALsO LackEd coMPEteNt eviDeNce tO MAKE The aForemEnTIOnED fINdING. SurRAtt’S bR. aT 6-7. sURRATt’S fiRst two CLaIms chalLeNGE diScREtIOnary ASpECTs of HiS SEntEncE. sEe cOMmONwEalTh V. WhITE, 193 a.3D 977, 981 (pa.suPER. 2018) (CONclUding claimS THaT TrIaL cOurt faIlEd to cOnsiDeR MilleR FACTOrs ANd DId NOT CONSider RehaBILITatIve eVidENcE ARe chAllENgES TO dIscRETioNARy Aspects Of sEnTenCe). As SUcH, we muSt fIRST DetERminE WhEtHEr: (1) The APpEAl Is TimelY; (2) thE IssuE iS pREseRVED; (3) apPellANt’S brIEF IncLuDEs a PA.r.a.P. 2119(F) STatEMeNt; ANd (4) a sUbsTANTiaL QUesTION is raIsed. seE COmMonwEAlth V. BAtTLEs, 169 a.3D 1086, 1090 (PA.SUPer. 2017). hErE, sURRaTt has SatIsfIED The first thrEe FACtoRs. WE nOW ADDress WHETheR he HAS RaISeD a SUBStANTiAL qUeSTIOn. SurRATT MaiNTaInS thAt The pCrA COURt iMPosED aN exCesSive SEnTENce and FAiLed tO coNsIDer hiS MiTiGaTING factoRS. hE claiMS thaT thE PCra court INcorRECtly “cONSIDEREd [HiM] An ADuLT at THe TiME of the cRiME, aNd FoCuSED ON ThE lIFE WitHOUT PaRoLe SENTEncES ImposEd on [hIS] AdUlT co-deFeNdanTS.” suRratt’s bR. aT 14-15. hE also maINtaInS THat tHE sEnTENCE IMPoSed by tHE cOurt is excessIve FoR A CrIme thAT wAs cOmmiTTed bY a JuVEnIlE And Is “ConTrAry tO thE fUndAmeNtAL nORMS UndERlyING The SeNtEncinG PRoCeSs, aNd IS iNCOnsisteNT WITH ThE SEnteNcInG CoDe.” Id. At 15. -3- j-a08035-19 SUrrATT’S clAIm OF an ExcESSivE sEnteNce pAIRed wITH a CLaIM that thE COUrT FAILeD tO conSIdeR his miTigAting fACtOrS rAISEs A sUbstANTiAl QueSTION. SEE CoMmOnwEaLth V. SwoPe, 123 a.3D 333, 339 (pA.super. 2015). theREfOrE, WE WILL ADDrESS THe MerIt OF hIS ClaiMs. we rEVieW a ChAlLENge tO DIsCretIoNaRY aSPeCTs OF SEnTenCInG For An AbUse OF DIscRETion. sEe COMmoNWEaLTH V. DErRY, 150 a.3D 987, 997 (pa.SUpeR. 2016). AN aBUSE oF dISCreTIon eXIsts whERe “tHE SentenCInG COURT igNOred OR miSAPPLIED THE lAw, eXErCiSeD Its judgMenT foR REAsOns of PArtiAlItY, PRejudiCE, BIaS or ill[-]WILl, OR arriVEd AT A maniFeSTLY UNreAsOnABLe DEcISiON.” Id. (QUOtiNG COmmoNweALTH v. HoCH, 936 a.2D 515, 517-18 (pa.suPEr. 2007)). SURRaTT CLAIMs THAt the Pcra COuRT “wHOLLy fAIled tO cONsideR [his] indiVIduaL, JuVeniLe chArACTeriStIcs – FoCUSINg iNsTEad oN tHe DEtAilS oF sURrATt’S crIme, ImPropERly cONsiderINg SuRrATt AS aN aDuLt, And WEigHINg the liFe SeNteNces imPOSED oN SuRrAtT’s ADuLt co-DeFeNDAnTs.” SUrrATt’S br. at 18. he aRguEs it fAIlEd To coNsiDER HIS JUveNile ChaRaCtErISTICS aS rEFerENceD IN MilLer. To BeGiN, tHe pcRA cOurT WaS NOt ReQUiReD TO ConSIder The Miller FactORS. the miLLeR2 fACtOrS mUsT be cONSIdereD “WHeN a JUvENiLe iS ExpoSEd TO a POTeNTiaL senteNCE oF lIfE wIthoUT tHE POSsibIliTy of PAROLe[.]” cOmMoNwEAlTH ____________________________________________ 2ThEse faCtoRS INcludE SuCh ThiNGS As “imMAtURItY, IMpEtuoSIty, And fAilURe To APPrECiatE risks aNd consequeNCES; . . .” batTS ii, 163 a.3d At 438 (QUotIng mILler, 567 u.S. at 477-78). -4- j-a08035-19 v. mAcHicOtE, 206 a.3d 1110, 1120 (pa. 2019); SEe ALsO BaTTS Ii, 163 a.3D at 432. HErE, thE CoMMonwEALTh DId not SeEK A LiFe-WIthOuT-pAroLe sENTeNCE, AnD ThUS, tHe coUrT was NOt REquiReD To ConSIDEr tHe mILLer faCtORs. ComMoNweaLTH v. leKKa, --- a.3d ---, 2019 WL 2064541, at *9 (pa.super. filEd may 10, 2019) (“IN cASEs wHeRE the commONWeALth DoEs NoT SeeK a liFe- wiThout-parOlE SentENcE, The ApplICATIoN Of The millER fACToRS Is not REQuirEd”). WhiLe SURrATt maIntAinS ThaT the pcrA COuRT imProPerlY cOnsiDEReD HIM AN aDUlT, WE dISagree. thE PCrA CourT CoNcEDeD iT haD to reCoNsiDEr SuRRatT’S sentENce PuRsuanT to MIllEr aNd mOntGomeRy BeCAUse SUrRAtT wAS UNdeR ThE aGe oF 18 AT thE Time of THE mURdErS. hOwEVeR, The COuRt oBserVed thaT tHE aGe of maJority waS SomewHaT arbItrARy ANd COnCLuDed tHaT, as suRratT WAs 17½ when he comMItted ThE MURderS, He WAs RelaTIveLY MATurE, As DemonStrATeD, iN part, By hIs	J-A08035-19 NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA: INTHE SUPERIORCOURT OF: PENNSYLVANIA : v. : : : ERIK R. SURRATT : :Appellant : No. 469 WDA 2018Appeal from theJudgment of Sentence Entered January 10, 2018 Inthe Court of CommonPleas of Allegheny County Criminal Divisionat No(s): CP-02-CR-0005355-2005, CP-02-CR-0005495-2005 BEFORE: PANELLA, P.J., STABILE, J.,and McLAUGHLIN, J.MEMORANDUM BY McLAUGHLIN, J.: FILED JULY26, 2019 Erik R. Surratt appeals from the judgment of sentence enteredfollowinga resentencing hearing pursuant to Miller v. Alabama, 567 U.S.460(2012), and Montgomery v. Louisiana,136 S.Ct. 718 (2016).Surratt claims thatin fashioning his sentence,the PCRA1 court erroneouslyconsidered him an adult,failed to consider whether he was capable of rehabilitation, and failed to considerthe Miller factors. We affirm. Surratt was oneof three individuals involved in a shooting that resulted in the deathof two victimsand one victim being wounded. Surratt shot one of the victims that died. Surratt was approximately 17 ½ years old at the time of the murders. A juryconvicted Surratt of two counts of first-degree murder and other offenses. In 2008, thetrial court sentenced Surratt to two life ____________________________________________ 1 Post Conviction Relief Act, 42 Pa.C.S.A. §§9541-9546. J-A08035-19 sentences without parole and 25to 50 years’ incarceration for the remaining charges. ThisCourt affirmed thejudgment of sentence. In 2017, the PCRA court granted Surratt a resentencing, pursuant to Miller and Montgomery. Attheresentencing hearing, Surratt presented five witnesses. Oneof the witnesses was a forensic social worker who testified to Surratt’s rehabilitation. Following twohearings, the PCRA courtresentenced Surratt to 40 years’ incarceration to lifeimprisonment.Surratt filed a post-sentencemotion which the trialcourt denied. Thistimely appeal followed.On appeal, Surratt raises the followingissues: I. Whether the lower court erred and abused its discretion in imposing a 40-yearminimum sentence because the Court failed to acknowledge or appropriately consider the factorslaid out in Miller v. Alabama, 567 U.S. 460 (2012), andMontgomery v.Louisiana, 136 S.Ct.718 (2016), in light ofthediminished capabilities and greater prospects for reform oftheadolescent offender. II. Whether the lower court erred and abused itsdiscretion by placing excessiveweight on the facts of the crime rather thanfocusingon Miller’s central question of whether thejuvenile is capable of rehabilitation. The facts of themurder are notdeterminative inassessing permanent incorrigibility. III. Whetherthelower court erred and abused its discretion by impermissibly considering Mr. Surratt to be an adultat the time of the offense, repeatedly referring the “arbitrary line”the U.S. Supreme Court had drawnbetweenoffenders under the age of 18 and thosewho are 18 and older. The Courtdoes not have the discretion tomake a findingcontrary to theUnited States SupremeCourt’s “legal conclusion[s]. . . andthe facts (scientific studies) underlying it” whenitconcerns the inherent traits associatedwith adolescent development.See Commonwealth v. Batts, 163 A.3d410, 437 (Pa. -2- J-A08035-19 2017). Because the Commonwealth failed to introduce any newevidence at the resentencinghearing, the Court also lackedcompetentevidence to make theaforementioned finding. Surratt’s Br.at 6-7. Surratt’s first two claims challengediscretionary aspectsof his sentence. See Commonwealth v. White, 193 A.3d 977, 981 (Pa.Super. 2018)(concluding claims that trial court failed toconsider Miller factors and did not consider rehabilitative evidence are challenges to discretionary aspects of sentence). As such, we must first determine whether: (1) the appeal is timely; (2) the issue is preserved;(3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement; and(4) a substantial question is raised. See Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017). Here, Surratt hassatisfied thefirst three factors. We now address whether hehas raised a substantial question. Surratt maintains that thePCRA court imposed an excessive sentence and failed to consider his mitigating factors. He claims that the PCRA court incorrectly “considered [him] an adultat the time of the crime, andfocusedon the lifewithout parole sentences imposed on [his] adult co-defendants.” Surratt’s Br. at 14-15. Healso maintains that the sentence imposed by thecourt is excessive for a crime that was committed by a juvenile and is “contrary to thefundamentalnorms underlying the sentencing process, and is inconsistentwith the Sentencing Code.” Id. at 15. -3- J-A08035-19 Surratt’s claim ofan excessive sentence paired with a claim thatthecourt failed to consider his mitigating factors raisesa substantial question. SeeCommonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015).Therefore, we will addressthe merit of his claims. We reviewa challenge to discretionary aspects of sentencing for an abuse of discretion. SeeCommonwealth v. Derry, 150 A.3d 987, 997 (Pa.Super. 2016). An abuse of discretion exists where “the sentencingcourt ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice,bias or ill[-]will, or arrived at a manifestly unreasonable decision.” Id. (quoting Commonwealthv. Hoch, 936A.2d515, 517-18(Pa.Super. 2007)).Surratt claims that the PCRA court “wholly failedto consider [his] individual, juvenile characteristics– focusing insteadon the details of Surratt’s crime, improperly considering Surratt as an adult, andweighing the life sentencesimposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. He argues it failedto consider his juvenile characteristics as referenced in Miller. To begin, the PCRA courtwas not required to consider the Miller factors. The Miller2 factors must be considered“when a juvenile is exposed to apotential sentence of life without the possibility of parole[.]” Commonwealth ____________________________________________ 2These factors include such things as “immaturity, impetuosity, and failure to appreciate risksand consequences; . ..” BattsII, 163 A.3d at 438 (quoting Miller,567 U.S. at 477-78).-4- J-A08035-19 v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019);see also Batts II, 163 A.3d at 432. Here,the Commonwealth did not seeka life-without-parole sentence, and thus, thecourt was not required toconsider theMiller factors. Commonwealth v. Lekka, --- A.3d ---, 2019 WL 2064541, at *9(Pa.Super. filed May 10, 2019) (“In caseswhere the Commonwealthdoesnot seek a life- without-parole sentence, the application of the Miller factors is not required”). While Surratt maintainsthatthe PCRA court improperly considered him an adult, we disagree. The PCRA court conceded it had to reconsider Surratt’s sentence pursuant toMiller and Montgomery because Surratt was under the age of 18 at the time of the murders. However, the court observed that the age of majority wassomewhat arbitrary and concluded that, as Surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated,in part, by his	J-A08035-19 NON-PRECEDENTIAL DECISION _-_ SEE SUPERIOR _COURT_ I.O.P. 65.37 _COMMONWEALTH_ OF PENNSYLVANIA _:_ IN THE SUPERIOR _COURT_ OF : PENNSYLVANIA : v. : : : ERIK _R._ SURRATT : _:_ _Appellant_ : _No._ 469 _WDA_ 2018 Appeal from _the_ Judgment of Sentence Entered January 10, 2018 _In_ the Court _of_ Common Pleas of Allegheny _County_ Criminal Division at No(s): CP-02-CR-0005355-2005, CP-02-CR-0005495-2005 BEFORE: PANELLA, P.J., STABILE, _J.,_ and McLAUGHLIN, _J._ MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 26, 2019 _Erik_ _R._ _Surratt_ _appeals_ _from_ the judgment _of_ sentence entered following _a_ resentencing _hearing_ _pursuant_ to _Miller_ v. Alabama, 567 U.S. 460 (2012), and _Montgomery_ v. Louisiana, _136_ S.Ct. 718 (2016). Surratt claims that _in_ _fashioning_ his sentence, the PCRA1 court _erroneously_ considered him an adult, failed to consider whether he was capable of rehabilitation, _and_ failed to consider _the_ Miller factors. We _affirm._ Surratt _was_ one of _three_ individuals involved in a shooting that resulted in the death of two _victims_ _and_ one _victim_ being wounded. Surratt _shot_ _one_ of _the_ _victims_ that died. Surratt was approximately 17 ½ years old at the time of the murders. A jury convicted Surratt of two counts _of_ first-degree murder and _other_ _offenses._ _In_ 2008, the trial court sentenced Surratt _to_ two life ____________________________________________ 1 _Post_ _Conviction_ Relief Act, 42 Pa.C.S.A. §§ 9541-9546. _J-A08035-19_ sentences without _parole_ and 25 to 50 years’ incarceration for the remaining charges. This Court affirmed _the_ judgment _of_ sentence. In 2017, the _PCRA_ _court_ _granted_ Surratt a resentencing, pursuant _to_ Miller and _Montgomery._ At the resentencing hearing, _Surratt_ _presented_ five _witnesses._ One _of_ the witnesses _was_ a forensic social worker who _testified_ to Surratt’s rehabilitation. Following two hearings, the PCRA court resentenced _Surratt_ to 40 years’ incarceration to _life_ imprisonment. _Surratt_ filed a post-sentence motion _which_ the trial court denied. This _timely_ appeal followed. On appeal, Surratt raises the _following_ issues: I. _Whether_ the lower court erred and abused its _discretion_ in _imposing_ a 40-year minimum sentence because _the_ Court failed to _acknowledge_ or _appropriately_ consider the _factors_ laid out in Miller v. Alabama, 567 U.S. 460 (2012), and _Montgomery_ v. Louisiana, 136 S.Ct. 718 (2016), in light _of_ _the_ diminished capabilities and greater prospects _for_ reform of _the_ adolescent offender. II. Whether the lower court erred _and_ abused its discretion by _placing_ excessive _weight_ _on_ the facts _of_ the crime _rather_ than _focusing_ on Miller’s central question _of_ whether the _juvenile_ is capable of rehabilitation. The _facts_ of the murder are not determinative in assessing permanent incorrigibility. III. Whether the lower court erred _and_ abused its discretion by impermissibly considering Mr. _Surratt_ to _be_ an adult at the _time_ of the offense, repeatedly referring the _“arbitrary_ line” the U.S. _Supreme_ Court had drawn between offenders under the age of 18 and those who are _18_ and older. The Court does not have _the_ _discretion_ to _make_ a finding contrary to the United States Supreme _Court’s_ “legal conclusion[s] . _._ . and the facts (scientific studies) _underlying_ it” when it concerns the inherent traits associated with adolescent development. See Commonwealth v. Batts, _163_ A.3d 410, 437 (Pa. -2- J-A08035-19 2017). Because the Commonwealth failed to introduce any new evidence at the resentencing hearing, _the_ Court also lacked competent evidence to make the aforementioned finding. Surratt’s _Br._ _at_ 6-7. Surratt’s _first_ two _claims_ _challenge_ discretionary aspects of _his_ _sentence._ See Commonwealth _v._ _White,_ _193_ _A.3d_ 977, 981 (Pa.Super. 2018) (concluding _claims_ _that_ trial _court_ _failed_ to consider Miller _factors_ and did not consider rehabilitative evidence _are_ challenges to discretionary aspects _of_ _sentence)._ As such, we must _first_ determine whether: (1) _the_ appeal is _timely;_ (2) the issue is preserved; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) _statement;_ and (4) a substantial question is raised. See Commonwealth _v._ Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017). Here, Surratt _has_ satisfied the first three factors. We _now_ address whether he has raised a _substantial_ question. _Surratt_ maintains _that_ the PCRA court imposed an excessive sentence and failed to consider _his_ _mitigating_ factors. He claims _that_ the PCRA court incorrectly “considered [him] _an_ adult _at_ the time _of_ the _crime,_ and focused on the life without _parole_ sentences imposed _on_ [his] adult co-defendants.” Surratt’s Br. at 14-15. He _also_ _maintains_ _that_ _the_ sentence _imposed_ _by_ the _court_ is excessive for a _crime_ that was committed by a juvenile and _is_ “contrary _to_ the _fundamental_ norms underlying the sentencing process, and is inconsistent with the _Sentencing_ Code.” _Id._ at 15. _-3-_ _J-A08035-19_ Surratt’s _claim_ of _an_ excessive sentence _paired_ with a _claim_ _that_ the court _failed_ _to_ consider _his_ mitigating factors raises _a_ substantial _question._ See Commonwealth _v._ Swope, 123 A.3d 333, _339_ (Pa.Super. _2015)._ Therefore, _we_ will address the _merit_ of his claims. We review _a_ _challenge_ to _discretionary_ aspects of sentencing _for_ an abuse of discretion. See _Commonwealth_ v. Derry, 150 _A.3d_ 987, 997 _(Pa.Super._ _2016)._ An abuse of discretion exists where “the sentencing court ignored or misapplied the _law,_ exercised its judgment for _reasons_ _of_ _partiality,_ prejudice, _bias_ or ill[-]will, _or_ arrived at a manifestly unreasonable _decision.”_ Id. (quoting _Commonwealth_ v. Hoch, 936 A.2d 515, _517-18_ (Pa.Super. 2007)). Surratt claims that the _PCRA_ court “wholly failed to _consider_ _[his]_ _individual,_ juvenile characteristics – _focusing_ instead on _the_ details of Surratt’s _crime,_ _improperly_ considering Surratt as an _adult,_ _and_ _weighing_ _the_ life sentences imposed on Surratt’s adult co-defendants.” _Surratt’s_ Br. at 18. He _argues_ it failed to consider _his_ juvenile characteristics as _referenced_ in _Miller._ To begin, the _PCRA_ court was not required to _consider_ the Miller factors. _The_ Miller2 factors must be considered “when _a_ juvenile _is_ exposed to a potential sentence of life without the possibility of parole[.]” Commonwealth ____________________________________________ 2These factors include such things as “immaturity, impetuosity, and failure to _appreciate_ risks and consequences; _._ . .” Batts II, _163_ _A.3d_ at _438_ _(quoting_ Miller, 567 U.S. at 477-78). -4- _J-A08035-19_ v. Machicote, 206 A.3d _1110,_ _1120_ (Pa. 2019); see _also_ Batts _II,_ 163 A.3d at 432. Here, the _Commonwealth_ did not seek a life-without-parole sentence, and thus, _the_ _court_ was not _required_ to consider _the_ Miller factors. _Commonwealth_ _v._ Lekka, --- A.3d ---, 2019 WL 2064541, _at_ _*9_ (Pa.Super. filed May 10, 2019) (“In cases where the Commonwealth _does_ not seek a life- without-parole sentence, the application of the Miller _factors_ _is_ not _required”)._ While Surratt _maintains_ that the PCRA _court_ improperly considered him an adult, we _disagree._ The PCRA court conceded it had _to_ reconsider Surratt’s sentence pursuant to Miller and Montgomery _because_ Surratt was _under_ the age _of_ 18 at the _time_ of the _murders._ However, the court observed that the age of majority was somewhat arbitrary and concluded that, as Surratt was 17½ when he committed _the_ murders, he was relatively mature, as demonstrated, _in_ part, _by_ his
486 So.2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 KA 0899. Court of Appeal of Louisiana, First Circuit. March 25, 1986. Rehearing Denied April 29, 1986. 857 Stephen L. Laiche and William B. Faust, III, Asst. Attys. Gen., New Orleans, for the State. J. Michael McDonald and David E. Stanley, Baton Rouge, for defendant. Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ. WATKINS, Judge. Michael Burge was originally charged by a single grand jury indictment with three counts of first degree murder. Prior to trial on the merits, the indictment was amended to reduce each charge to second degree murder in violation of LSA-R.S. 14:30.1. Thereafter, defendant withdrew his former plea of not guilty and not guilty by reason of insanity and entered a plea of not guilty. Following trial by jury, defendnat was convicted on each count as charged by the amended indictment. The trial court sentenced defendant to a term of life imprisonment, without benefit of parole, probation, or suspension of sentence, on each count. The sentences for counts one and two are to be served consecutively to each other and to any other sentence defendant 858 is now serving. The sentence for count three is to be served concurrently. Defendant brings this appeal urging ten assignments of error: 1. The trial court erred in failing to suppress the confession of the defendant. 2. The trial court erred in failing to suppress inflammatory, prejudicial photographs. 3. The trial court erred in not granting a mistrial after two violations of its order of sequestration of witnesses. 4. The trial court erred in failing to grant a mistrial after the misconduct and harassment of defense witnesses by the state. 5. The trial court erred in failing to grant a mistrial after harassment by the state of the defendant. 6. The trial court erred in failing to grant a mistrial after improper conduct of the prosecution by referring to a nickname of the defendant in violation of court order. 7. The trial court erred in failing to grant a judgment of acquittal. 8. The trial court erred in failing to grant a mistrial or a new trial because of the cumulative prejudicial effect of the acts of the state and prosecution. 9. The trial court erred in failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. The trial court erred in admitting into evidence the autopsy report of Dr. Cavalier. It is conceded by defendant that, shortly after midnight on a Sunday night, he fatally stabbed Ricky Gray, Mark Vincent and Lester Allen with a knife fashioned from a sharpened file. A fourth individual, Darryl Washington, was also stabbed by defendant, but he survived.[1] At the time of the instant offenses, defendant and the victims were all inmates of Louisiana State Penitentiary at Angola, housed in Magnolia 3 dormitory. Magnolia 3 dormitory is a prison structure capable of housing sixty inmates, who sleep in one large room with their individual beds arranged side by side in several long rows. Prison personnel characterize the facility as an appropriate placement for an inmate who is not easily integrated into the general prison population. After making a formal request for protection because of difficulties encountered in another placement at Angola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. Robert Shriver was already housed in that facility. Shriver and defendant, both white inmates, subsequently developed a homosexual relationship. Antagonism developed between defendant and Shriver and a group of several black inmates, which included the instant victims. One of those inmates, Larry Thomas, testified that he and Lester Allen broke the lock on Shriver's locker box during the Friday preceding the stabbing incident and stole several items. Larry Thomas admitted that defendant asked to have half of his and Shriver's things returned; however, Thomas was unwilling or unable to comply. Thomas maintains that defendant threatened to recover his property "one way or another." Warren Cain, an inmate who testified for the state, claims to have overheard a conversation among defendant, Shriver, Lester Allen and Mark Vincent during the afternoon immediately preceding the stabbing incident. Cain characterized Allen's and Vincent's response to defendant's request to have his property returned as one of indifference. Defendant was advised to seek return of his property whatever way he wanted. Defendant and defense witnesses, Al Bates and Aubrey Thompson, maintain that, when questioned about returning defendant's property, Lester Allen advised defendant to get a knife or "check out." However, defendant testified that he did not request a transfer from Magnolia 3 dormitory because he did not want to be separated from Shriver. Rather, defendant 859 retrieved a homemade knife from the prison recreation yard, brought it inside the dormitory, and hid it with his belongings. On Sunday night in Magnolia 3 dormitory, lights were turned off at 10:00 p.m.; and the dormitory television was turned off at midnight. All inmates were expected to be in bed by midnight. James Slaven, the correctional officer on duty when the stabbing incident occurred, made a head count at 12:30 a.m. Officer Slaven recalled that defendant, Shriver, and Warren Cain were all awake when that count was made. While Officer Slaven was in the shower room reporting his head count, four inmates were stabbed. When the lights were turned on, Officer Slaven observed defendant standing by his bed with a knife in his hand. Defendant's knife, in reality a sharpened file, was held in place by a glove or by gauze wrapped around his hand. No other weapons were found in the dormitory "shake down" following this incident. As defendant was escorted from the dormitory, he remarked to Captain John Purpera of the prison security staff, "I stabbed all four of them." Accounts of the stabbing incident differ greatly. Inmates Warren Cain and Mark Duhon testified that they saw defendant get out of his bed and proceed to stab Ricky Gray and Mark Vincent as they lay in bed. Gray occupied a bed immediately adjacent to defendant's bed. Vincent's bed was located on the other side of Gray's bed. While Gray and Vincent were being stabbed, Shriver went to Lester Allen's bed and hit Allen with a sock containing batteries. With Gray and Vincent immobilized, defendant went to Shriver's assistance. Defendant stabbed Allen and in the process disturbed Darryl Washington, who occupied the bed immediately adjacent to Allen's bed. Washington was stabbed several times but managed to grab a radio which he hurled against a post. Robert Shriver acknowledged that he had a sock filled with batteries and was also aware that defendant had brought a knife into the dormitory. He claims ignorance as to Ricky Gray's or Mark Vincent's role in the fight. Rather, Shriver contends that the fight began when Lester Allen approached his bed and said, "Come on and do something for me." In response to that proposition, Shriver got out of his bed, which was positioned end on end relative to defendant's bed, and struck Allen with the sock full of batteries. Defendant came to Shriver's assistance. Defendant's version of the incident is supported in part by the testimony of fellow inmates, Al Bates, Aubrey Thompson and Donald Fontenot. Defendant maintains that when Shriver and Allen first started arguing he put on a glove and placed the homemade knife in his left hand. Defendant denied utilizing any tape or gauze to wrap his hand. When defendant got up to help Shriver, he was attacked by Ricky Gray and Mark Vincent. Gray had a knife in his right hand, and Vincent appeared unarmed. Defendant grabbed Gray's right hand; and defendant, Gray and Vincent fell onto a bed. Defendant described his encounter with Gray and Vincent: "[W]e was kinda rassling (sic), all three of us on the bed, standing up, falling back down, and I was just stabbing." After Gray and Vincent were incapacitated, defendant intervened in the fight between Shriver and Allen. Defendant stabbed Allen "once or twice". Defendant did not know if Allen had a weapon. Defendant and Shriver were neither bruised nor cut as a result of the incident. Dr. Emile Laga performed autopsies on Ricky Gray and Mark Vincent. Dr. Laga noted that Gray had four stab wounds to the upper, left half of his body. One deep wound penetrated the front wall of his heart. No defensive injuries were found on Gray's extremities. Dr. Laga was certain that the assailant and Gray had been face to face when Gray was stabbed, and he hypothesized that Gray might have been in a supine position. Vincent suffered two stab wounds to his chest. Again, one wound penetrated the cardial sac, and Dr. Laga was certain that the assailant and Vincent had been face to face when Vincent was stabbed. 860 Dr. Debra Cavalier, who performed the autopsy of Lester Allen, noted two stab wounds, one positioned in the mid-abdomen and the other on Allen's right side. Allen also had two cuts on his face and a laceration on his forehead. Again, no defensive wounds were located on Allen's hand or forearms, and Dr. Cavalier opined that Allen and his assailant had been face to face during the attack. ASSIGNMENT OF ERROR NUMBER 1: By this assignment, defendant contends that the trial court erred by failing to suppress a written statement made by him. Defendant argues that his written statement was tainted because prior to making that statement he had been taken into custody and orally questioned about the incident without having been advised of	486 so. 2d 253 ( 1986 ) state of louisiana v. michael burge. no. 85 ka 0899. court of appeal of louisiana, first circuit. november 25, 1986. rehearing denied april 29, 1986. * 857 stephen l. laiche and william b. faust, iii, asst. attys. gen., new orleans, for the state. j. michael mcdonald and david e. stanley, baton rouge, for defendant. before grover l. covington, c. j., and watkins and shortess, jj. watkins, judge. michael burge was originally charged by a single grand jury indictment with three counts of first degree murder. prior to trial on the merits, the indictment was amended to reduce each charge to second degree murder in violation of lsa - r. s. 14 : 30. 1. thereafter, defendant withdrew his former plea of not guilty and not convicted by reason of insanity and entered a plea of not guilty. following trial by jury, defendnat was convicted on each count as charged by the amended indictment. the trial court sentenced defendant to a term of life imprisonment, without benefit of custody, probation, or suspension of probation, on each count. the sentences for counts one and two are to be served consecutively to each other and to any other sentence defendant * 858 is now serving. the sentence for count three is to be served concurrently. defendant brings this appeal urging ten assignments of error : 1. the trial court erred in having to suppress the confession of the defendant. 2. the trial court erred in failing to suppress inflammatory, prejudicial photographs. 3. the trial court erred in not granting a mistrial after two violations followed its order of sequestration of witnesses. 4. the trial court erred in failing to grant a mistrial after the misconduct upon harassment of defense witnesses by the state. 3. the trial court erred in failing to grant a mistrial after harassment by the state of the defendant. 6. louisiana trial court erred in failing to grant a mistrial after improper conduct of the prosecution by referring to a nickname of the defendant in violation of court order. 7. the trial court erred in failing to grant a judgment of acquittal. 8. the trial court erred in failing to grant a mistrial or a new trial because of the cumulative prejudicial effect of the acts of the state and prosecution. 9. the trial court erred in failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. the trial court erred in admitting into evidence the autopsy report of dr. cavalier. it is conceded by defendant that, shortly after midnight on a sunday night, he fatally stabbed ricky gray, mark vincent and lester allen with a knife fashioned from a sharpened file. a fourth individual, darryl washington, was also stabbed by defendant, but he survived. [ 1 ] at the time of the instant offenses, defendant and the victims were all inmates of louisiana state penitentiary at angola, housed in magnolia 3 dormitory. magnolia 3 dormitory is a prison structure capable of housing sixty inmates, who sleep in one large room with their individual beds arranged side by side in several long rows. prison personnel characterize the facility as an appropriate placement for an inmate who is not easily integrated into the general prison population. after making a formal request for protection because of difficulties encountered in another placement at angola, defendant was moved to magnolia 3 dormitory some six weeks before the stabbing incident occurred. robert shriver was already housed in that facility. shriver and defendant, both white inmates, subsequently developed a homosexual relationship. antagonism developed between defendant and shriver and a group of several black inmates, which included the instant victims. one of those inmates, larry thomas, testified that he and lester allen broke the lock on shriver ' s locker box during the friday preceding the stabbing incident and stole several items. larry thomas admitted that defendant asked to have half of his and shriver ' s things returned ; however, thomas was unwilling or unable to comply. thomas maintains that defendant threatened to recover his property " one way or another. " warren cain, an inmate who testified for the state, claims to have overheard a conversation among defendant, shriver, lester allen and mark vincent during the afternoon immediately preceding the stabbing incident. cain characterized allen ' s and vincent ' s response to defendant ' s request to have his property returned as one of indifference. defendant was advised to seek return of his property whatever way he wanted. defendant and defense witnesses, al bates and aubrey thompson, maintain that, when questioned about returning defendant ' s property, lester allen advised defendant to get a knife or " check out. " however, defendant testified that he did not request a transfer from magnolia 3 dormitory because he did not want to be separated from shriver. rather, defendant * 859 retrieved a homemade knife from the prison recreation yard, brought it inside the dormitory, and hid it with his belongings. on sunday night in magnolia 3 dormitory, lights were turned off at 10 : 00 p. m. ; and the dormitory television was turned off at midnight. all inmates were expected to be in bed by midnight. james slaven, the correctional officer on duty when the stabbing incident occurred, made a head count at 12 : 30 a. m. officer slaven recalled that defendant, shriver, and warren cain were all awake when that count was made. while officer slaven was in the shower room reporting his head count, four inmates were stabbed. when the lights were turned on, officer slaven observed defendant standing by his bed with a knife in his hand. defendant ' s knife, in reality a sharpened file, was held in place by a glove or by gauze wrapped around his hand. no other weapons were found in the dormitory " shake down " following this incident. as defendant was escorted from the dormitory, he remarked to captain john purpera of the prison security staff, " i stabbed all four of them. " accounts of the stabbing incident differ greatly. inmates warren cain and mark duhon testified that they saw defendant get out of his bed and proceed to stab ricky gray and mark vincent as they lay in bed. gray occupied a bed immediately adjacent to defendant ' s bed. vincent ' s bed was located on the other side of gray ' s bed. while gray and vincent were being stabbed, shriver went to lester allen ' s bed and hit allen with a sock containing batteries. with gray and vincent immobilized, defendant went to shriver ' s assistance. defendant stabbed allen and in the process disturbed darryl washington, who occupied the bed immediately adjacent to allen ' s bed. washington was stabbed several times but managed to grab a radio which he hurled against a post. robert shriver acknowledged that he had a sock filled with batteries and was also aware that defendant had brought a knife into the dormitory. he claims ignorance as to ricky gray ' s or mark vincent ' s role in the fight. rather, shriver contends that the fight began when lester allen approached his bed and said, " come on and do something for me. " in response to that proposition, shriver got out of his bed, which was positioned end on end relative to defendant ' s bed, and struck allen with the sock full of batteries. defendant came to shriver ' s assistance. defendant ' s version of the incident is supported in part by the testimony of fellow inmates, al bates, aubrey thompson and donald fontenot. defendant maintains that when shriver and allen first started arguing he put on a glove and placed the homemade knife in his left hand. defendant denied utilizing any tape or gauze to wrap his hand. when defendant got up to help shriver, he was attacked by ricky gray and mark vincent. gray had a knife in his right hand, and vincent appeared unarmed. defendant grabbed gray ' s right hand ; and defendant, gray and vincent fell onto a bed. defendant described his encounter with gray and vincent : " [ w ] e was kinda rassling ( sic ), all three of us on the bed, standing up, falling back down, and i was just stabbing. " after gray and vincent were incapacitated, defendant intervened in the fight between shriver and allen. defendant stabbed allen " once or twice ". defendant did not know if allen had a weapon. defendant and shriver were neither bruised nor cut as a result of the incident. dr. emile laga performed autopsies on ricky gray and mark vincent. dr. laga noted that gray had four stab wounds to the upper, left half of his body. one deep wound penetrated the front wall of his heart. no defensive injuries were found on gray ' s extremities. dr. laga was certain that the assailant and gray had been face to face when gray was stabbed, and he hypothesized that gray might have been in a supine position. vincent suffered two stab wounds to his chest. again, one wound penetrated the cardial sac, and dr. laga was certain that the assailant and vincent had been face to face when vincent was stabbed. * 860 dr. debra cavalier, who performed the autopsy of lester allen, noted two stab wounds, one positioned in the mid - abdomen and the other on allen ' s right side. allen also had two cuts on his face and a laceration on his forehead. again, no defensive wounds were located on allen ' s hand or forearms, and dr. cavalier opined that allen and his assailant had been face to face during the attack. assignment of error number 1 : by this assignment, defendant contends that the trial court erred by failing to suppress a written statement made by him. defendant argues that his written statement was tainted because prior to making that statement he had been taken into custody and orally questioned about the incident without having been advised of	486 So. 2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 KA 0899. Court of Appeal of Louisiana, First Circuit. March 25, 1986. Rehearing Denied April 29, 1986. * 857 Stephen L. Laiche and William B. Faust, III, Asst. Attys. Gen. , New Orleans, for the State. J. Michael McDonald and David E. Stanley, Baton Rouge, for defendant. Before GROVER L. COVINGTON, C. J. , and WATKINS and SHORTESS, JJ. WATKINS, Judge. Michael Burge was originally charged by a single grand jury indictment with three counts of first sehree murder. Prior to trial on the merits, the indictment was amended to reduce each charge to second degree murder in violation of LSA - R. S. 14: 30. 1. Thereafter, defendant withdrew his former plea of not guilty and not guilty by reason of insanity and entered a plea of not guilty. Following trial by jury, defendnat was convicted on each count as charged by the amended indictment. The trial court sentenced defendant to a term of life imprisonment, without benefit of parole, probation, or suspension of sentence, on each count. The sentences for counts one and two are to be served consecutively to each other and to any other sentence defendxBt * 858 is now serving. The sentence for count three is to be served concurrently. Defendant brings this appeal urging ten assignments of error: 1. The trial court erred in failing to suppress the confession of the defendant. 2. The trial court erred in failing to suppress inflammatory, prejudicial photographs. 3. The trial court erred in not granting a mistrial after two violations of its order of sequestration of witnesses. 4. The trial court erred in failing to grant a mistrial after the misconduct and harassment of defense witnesses by the state. 5. The trial court erred in failing to grant a mistrial after harassment by the state of the defendant. 6. The trial court erred in failing to grant a mistrial after improper conduct of the prosecution by referring to a nickname of the defendant in violation of court order. 7. The trial court erred in failing to grant a judgment of acquittal. 8. The trial court erred in failing to grant a mistrial or a new trial because of the cumulative prejudicial effect of the acts of the state and prosecution. 9. The trial court erred in failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. The trial court erred in admitting into evidence the autopsy report of Dr. Cavalier. It is conceded by defendant that, shortly after midnight on a Sunday night, he fatally stabbed Ricky Gray, Mark Vincent and Lester Allen with a knife fashioned from a sharpened file. A fourth individual, Darryl Washington, was also stabbed by defendant, but he survived. [1] At the time of the instant offenses, defendant and the victims were all inmates of Louisiana State Penitentiary at Angola, housed in Magnolia 3 dormitory. Magnolia 3 dormitory is a prison structure cApabl@ of housing sixty inmates, who sleep in one Ia#ge room with their individual beds arranged side by side in several long rows. Prison personnel characterize the facility as an appropriate placement for an inmate who is not easily integrated into the general prison population. After making a formal request for protection because of difficulties encountered in another placement at Angola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. Robert Shriver was already housed in that facility. Shriver and defendant, both white inmates, subsequently developed a homosexual relationship. Antagonism developed between defendant and Shriver and a group of several black inmates, which included the instant victims. One of those inmates, Larry Thomas, testified that he and Lester Allen broke the lock on Shriver ' s locker box during the Friday preceding the stabbing incident and stole several items. Larry Thomas admitted that defendant asked to have half of his and Shriver ' s things returned; however, Thomas was unwilling or unable to comply. Thomas maintains that defendant threatened to recover his property " one way or another. " Warren Cain, an inmate who testified for the state, claims to have overheard a conversation among defendant, Shriver, Lester Allen and Mark VinSenf during the afternoon immediately preceding the stabbing incident. Cain characterized Allen ' s and Vincent ' s response to defendant ' s request to have his property returned as one of indifference. Defendant was advised to seek return of his property whatever way he wanted. Defendant and defense witnesses, Al Bates and Aubrey Thompson, maintain that, when questioned about returning defendant ' s property, Lester Allen advised defendant to get a knife or " check out. " However, defendant testified that he did not request a transfer from Magnolia 3 dormitory because he did not want to be separated from Shriver. Rather, defendant * 859 retrieved a homemade ln(fe from the prison recreation yard, brought it inside the dormitory, and hid it with his belongings. On Sunday night in Magnolia 3 dormitory, lights were turned off at 10: 00 p. m. ; and the dormitory television was turned off at midnight. All inmates were expected to be in bed by midnight. James Slaven, the correctional officer on duty when the stabbing incident occurred, made a head count at 12: 30 a. m. Officer Slaven recalled that defendant, Shriver, and Warren Cain were all awake when that count was made. While Officer Slaven was in the shower room reporting his head count, four inmates were stabbed. When the lights were turned on, Officer Slaven observed defendant standing by his bed with a knife in his hand. Defendant ' s knife, in reality a sharpened f9ie, was held in place by a g<Ive or by gauze wrapped around his hand. No other weapons were found in the dormitory " shake down " following this incident. As defendant was escorted from the dormitory, he remarked to Captain John Purpera of the prison security staff, " I stabbed all four of them. " Accounts of the stabbing incident differ greatly. Inmates Warren Cain and Mark Duhon testified that they saw defendant get out of his bed and proceed to stab Ricky Gray and Mark Vincent as they lay in bed. Gray occupied a bed immediately adjacent to defendant ' s bed. Vincent ' s bed was located on the other side of Gray ' s bed. While Gray and Vincent were being stabbed, Shriver went to Lester Allen ' s bed and hit Allen with a sock containing batteries. With Gray and Vincent immobilized, defendant went to Shriver ' s assistance. Defendant stabbed Allen and in the process disturbed Darryl Washington, who occupied the bed immediately adjacent to Allen ' s bed. Washington was stabbed several times but managed to grab a radio which he hurled against a post. Robert Shriver acknowledged that he had a sock filled with batteries and was also aware that defendant had brought a knife into the dormitory. He claims ignorance as to Ricky Gray ' s or Mark Vincent ' s role in the fight. Rather, Shriver contends that the fight began when Lester Allen approached his bed and said, " Come on and do something for me. " In response to that proposition, Shriver got out of his bed, which was positioned end on end relative to defendant ' s bed, and struck Allen with the sock full of batteries. Defendant came to Shriver ' s assistance. Defendant ' s version of the incident is supported in part by the testimony of fellow inmates, Al Bates, Aubrey Thompson and Donald Fontenot. Defendant maintains that when Shriver and Allen first started arguing he put on a glove and placed the homemade knife in his left hand. Defendant denied utilizing any tape or gauze to wrap his hand. When defendant got up to help Shriver, he was attacked by Ricky Gray and Mark Vincent. Gray had a knife in his right hand, and Vincent appeared unarmed. Defendant grabbed Gray ' s right hand; and defendant, Gray and Vincent fell onto a bed. Defendant described his encounter with Gray and Vincent: " [W] e was kinda rassling (sic ), all three of us on the bed, standing up, falling back down, and I was just stabbing. " After Gray and Vincent were incapacitated, defendant intervened in the fight between Shriver and Allen. Defendant stabbed Allen " once or twice ". Defendant did not know if Allen had a weapon. Defendant and Shriver were neither bruised nor cut as a result of the incident. Dr. Emile Laga performed autopsies on Ricky Gray and Mark Vincent. Dr. Laga noted that Gray had four stab wounds to the upper, left half of his body. One deep wound penetrated the front wall of his heart. No defensive injuries were found on Gray ' s extremities. Dr. Laga was certain that the assailant and Gray had been face to face when Gray was stabbed, and he hypothesized that Gray might have been in a supine pksiyion. Vincent suffered two stab wounds to his chest. Again, one wound penetrated the cardial sac, and Dr. Laga was certain that the assailant and Vincent had been face to face when Vincent was stabbed. * 860 Dr. Debra Cavalier, who performed the autopsy of Lester Allen, noted two stab wounds, one positioned in the mid - abdomen and the other on Allen ' s right side. Allen also had two cuts on his face and a laceration on his forehead. Again, no defensive wounds were located on Allen ' s hand or forearms, and Dr. Cavalier opined that alldn and his assailant had been face to face during the attack. ASSIGNMENT OF ERROR NUMBER 1: By this assignment, defendant contends that the trial court erred by failing to suppress a written statement made by him. Defendant argues that his written statement was tainted because prior to making that statement he had been taken into custody and orally questioned about the incident without having been advised of	486 So.2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 KA 0899. Court of Appeal of Louisiana, First March 25, 1986. Denied April 1986. 857 Stephen Laiche and William B. Faust, III, Attys. New Orleans, for the State. J. McDonald and David E. Stanley, Baton Rouge, for defendant. Before GROVER L. C.J., and WATKINS and SHORTESS, JJ. WATKINS, Judge. Michael was originally charged by a single grand jury indictment with three counts first degree murder. Prior to trial on merits, the indictment was amended to reduce charge to second degree murder in violation of LSA-R.S. 14:30.1. Thereafter, defendant withdrew plea of not guilty and not by reason of and a plea of not Following trial jury, defendnat was convicted on each count as by the amended The trial sentenced defendant to a term of imprisonment, without of parole, probation, or of sentence, on each The sentences counts one and two are to be served to each other and to any other sentence defendant 858 is now serving. The sentence for count three is to be served concurrently. Defendant this appeal urging ten assignments of error: 1. The trial court erred in failing to suppress the confession of defendant. 2. The trial court erred in failing suppress inflammatory, prejudicial photographs. 3. The trial erred in not granting a mistrial after two violations of its order sequestration of witnesses. 4. The trial court erred in failing to grant a mistrial the misconduct and harassment of defense witnesses by the state. The trial court erred in failing to grant a mistrial after by the state of the defendant. 6. The trial court erred failing to grant a mistrial after improper conduct of the prosecution by referring a nickname of the defendant in violation of court order. 7. trial court erred in failing to a judgment of acquittal. 8. The trial court in to grant a mistrial new trial because of the prejudicial effect of the acts of the state and prosecution. 9. The trial erred in failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. The trial court erred in admitting into evidence autopsy report of Dr. Cavalier. It is conceded by defendant that, shortly after midnight a Sunday night, he fatally stabbed Ricky Gray, Mark and Lester Allen with a knife fashioned from a sharpened file. A fourth individual, Darryl Washington, was also stabbed by defendant, but he survived.[1] the time of instant offenses, defendant and the were all inmates of Louisiana State at Angola, housed in Magnolia 3 Magnolia dormitory is a prison structure capable of housing sixty inmates, who sleep in one large room with their individual beds arranged side by side in several long rows. Prison personnel characterize the facility as an appropriate placement for an who is not integrated into the general population. After making a request for protection of difficulties encountered in another placement Angola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. Robert Shriver was already housed in facility. Shriver and defendant, both white inmates, subsequently developed a relationship. Antagonism developed between defendant and Shriver and group of several black inmates, which included the instant victims. One of those inmates, Larry Thomas, testified that he Lester Allen broke the on Shriver's locker box during the Friday preceding the stabbing incident stole several items. Thomas that defendant asked to have half of his and Shriver's things returned; Thomas was unwilling or unable to comply. Thomas maintains defendant threatened to recover his property "one way or another." Warren Cain, an inmate who testified for the state, claims to have overheard a conversation among defendant, Shriver, Lester Allen and Mark during the afternoon immediately preceding the stabbing incident. Cain characterized Allen's and Vincent's response to defendant's request to have his property returned as of indifference. Defendant was advised to seek of property whatever way he wanted. Defendant and defense Bates and Aubrey Thompson, maintain that, when questioned about returning defendant's property, Lester Allen defendant to get a knife or "check out." However, defendant testified that he did a transfer from Magnolia 3 dormitory because did not want to be separated from Shriver. Rather, defendant 859 retrieved a homemade knife from the prison recreation yard, brought it inside the dormitory, and hid it with his belongings. On Sunday night in Magnolia 3 dormitory, lights were turned off at 10:00 p.m.; and the dormitory television was turned off midnight. All inmates were expected be in bed by midnight. James Slaven, the correctional officer on duty when the stabbing incident occurred, a head count at 12:30 a.m. Officer Slaven recalled that Shriver, and Warren Cain were that count was made. While Officer Slaven was in the shower room reporting his head count, four inmates were stabbed. When the lights were on, Officer Slaven observed defendant standing by his bed with a knife in his knife, in a sharpened file, was held in place by a glove or by gauze wrapped around his hand. No other weapons were found in the dormitory "shake down" following this incident. As defendant was from the dormitory, he remarked to Captain John Purpera of prison security "I stabbed all four of them." Accounts of stabbing incident differ Inmates Warren Cain and Mark Duhon testified that saw get out of his bed and proceed to stab Ricky Gray and Mark Vincent as they lay in occupied a bed immediately adjacent to defendant's bed. Vincent's bed located on the other side of Gray's While Gray and Vincent were being stabbed, Shriver went to Lester Allen's and hit Allen with a sock containing batteries. With Gray and Vincent immobilized, defendant went to Shriver's assistance. Defendant stabbed Allen and in the process disturbed Darryl Washington, who occupied the bed immediately adjacent to Allen's bed. Washington was stabbed several times but managed to grab a radio which he hurled against a Robert Shriver acknowledged that had a filled with batteries and was also that defendant had brought a knife into the dormitory. He claims as to Ricky Gray's or Mark Vincent's role in the fight. Rather, Shriver contends that the fight began when Lester Allen his bed and said, "Come on and do something for me." In response to that proposition, Shriver got out of bed, which was positioned end on end relative to bed, and struck Allen with full of batteries. Defendant to Shriver's assistance. Defendant's version of the incident is supported in part by the testimony of fellow inmates, Bates, Aubrey Thompson Donald Defendant maintains that when Shriver and Allen first started arguing he put on a glove and placed the homemade knife in his hand. Defendant denied utilizing any tape or gauze wrap his hand. When defendant got up to help Shriver, he was attacked by Ricky and Mark Vincent. had a knife in his right hand, and Vincent appeared unarmed. Defendant grabbed Gray's right hand; and defendant, Gray and fell onto a bed. Defendant his encounter with Gray and Vincent: "[W]e was kinda rassling (sic), three of on the standing up, falling back down, and I was just stabbing." After Gray and were incapacitated, defendant in the fight between Shriver and Allen. Defendant stabbed "once twice". Defendant not know if Allen had a weapon. Defendant and Shriver were neither bruised nor cut as a result of the incident. Dr. Emile Laga autopsies on Gray and Mark Vincent. Dr. Laga noted Gray had four stab wounds to the upper, left half of his body. One deep wound penetrated the front wall of heart. No defensive injuries were found on Gray's Dr. Laga was certain that assailant and had been face to face when Gray was stabbed, and he hypothesized that Gray might have been in a supine position. Vincent suffered two stab wounds to chest. Again, one wound penetrated the cardial and Laga was certain that the and Vincent had been face Vincent was stabbed. 860 Dr. Debra Cavalier, who performed autopsy of Lester Allen, noted stab wounds, one positioned in the mid-abdomen and the other on Allen's right side. Allen had two on his face and a laceration on his forehead. Again, no defensive wounds were located on Allen's hand or forearms, and Dr. Cavalier opined that Allen and his assailant had been face to face during the attack. ASSIGNMENT OF NUMBER 1: By this assignment, contends that the trial court failing to suppress a made by him. Defendant argues that his written statement was because prior that statement he had been taken into custody and orally questioned about the incident without having been advised of	486 SO.2d 855 (1986) StATE Of LOUIsiANa v. michaeL burGe. NO. 85 kA 0899. CoURT oF aPPEAL Of LOuisiANA, FIrsT ciRCUIT. marCh 25, 1986. REHeARiNg dEnIeD APRil 29, 1986. 857 sTEpHEN L. LAiChE AnD WilliAm B. FaUST, Iii, ASsT. aTtYS. gEN., New OrLEans, fOr thE STATE. J. MIcHaEl mCDoNAlD AnD dAVid E. StANlEY, BAToN rouGE, FoR dEFendant. beFore gRoveR l. CoviNgtoN, C.j., AnD WATkInS aND SHOrtESs, jj. WAtKIns, jUDgE. mIchAEl BUrgE wAS ORIGiNalLy charGEd By a SingLe gRANd jUrY InDiCTmenT witH tHrEE cOunts oF fiRSt deGrEe muRdeR. PRiOR tO TRIal On The MeRITS, tHe IndiCTment was aMeNDED TO rEdUcE EACh ChArGE TO SEcOnd DEGREE murDER iN viOLAtIOn Of lSa-R.S. 14:30.1. tHerEaftER, DeFEndAnT wIthDREw his FOrmEr plea Of NOt guiLTY ANd not guilty BY REason of iNsaniTY AND EnTeRed A plea oF NOt gUIlTY. FOllowIng trIAl by JurY, dEFEnDnat wAS ConVICted ON eaCH coUNt aS chARGed bY The amENdED iNdICtMeNT. the trIAl CourT SeNTeNCEd DEfendAnt TO A TeRM of LIFe imPRisoNMent, WiTHoUT BeneFIt OF ParOLE, pROBatIon, OR suspEnSion OF sentenCe, ON EaCh couNt. tHE SEntEnCeS fOr cOUntS OnE ANd tWo ArE TO Be sErved cOnsECUtiVelY To EACH oTheR ANd to aNy OtHeR sEnTEnCe DEfENdAnt 858 is noW seRvING. tHe SENTenCe For COunt THreE iS to be SeRVeD cOncURrENtLy. dEFeNdANT BrINGS THIs AppeaL URGiNG Ten asSIgnMEnTs OF error: 1. the Trial courT eRRED in faILiNG TO suPPREss ThE cOnfESsiOn oF The deFendANT. 2. the triAL COURt ErRed iN fAilIng to sUppresS infLammAtORy, PREjUDicIAl phOTOGRAphS. 3. thE TrIAL couRT eRREd In nOT graNting a misTRiAL aFTER TWO ViolAtIOnS of ITS orDER oF seQUeSTRAtION OF WITNeSSEs. 4. the TRiaL coURt ErReD in fAiLinG TO gRAnt a miSTrIal AfTEr The miSCOnduct And HArAssMENT of DEFeNse wITNEsses bY tHE State. 5. thE trial COuRt ERrED in FaiLIng To graNT A mISTrIAL afTer harasSmenT By THe sTate OF The DEFENdAnT. 6. tHE trIaL COURt errEd In FAIlINg to graNt A miSTRIal aftER ImpRoPeR coNDUCT of THE PROsecuTiOn By refeRRiNg tO A nicKNAME Of THE DEFeNdaNt In vIoLAtioN oF court orDER. 7. ThE trIaL COuRT ErREd in FaIling TO GrANT A JuDgMeNt Of aCQuittaL. 8. tHe TRial COurt ERrEd iN FaIliNg To gRAnt a mIStRiAl or a NEW TRIAl BECaUSE of THe cumULAtIve pREJuDICiAl effecT OF tHE ACts oF THE StATE anD PrOsecuTiOn. 9. THe tRiAL cOUrT ErRED in FaIlIng to gRaNT a MiStrIAl oR SeAT AN aLternATE JUROR wheN A JuROr vieWEd tHE deFendANT sHAckLed. 10. tHE trIaL CoUrt erREd In aDmITTINg iNTo EViDeNCE ThE AUtopSY RePoRt Of dr. CavAlIER. iT Is CONcEDed BY DefeNdANt ThAt, SHortly AftER midniGhT On A SuNdaY NiGHt, He FAtalLY StABbED rICkY GraY, mArK vincENt And LeSTeR aLLEN wItH A knIfe fAsHiONed FroM a sHARPENeD fILE. A fourtH IndivIDuAl, DaRRyl WaSHingTon, wAs aLSO stabbED bY DEFEnDANt, bUt he SurvIVEd.[1] at THE TIME oF thE INStAnT OFFEnsEs, DEFENDant AND THE vIcTims weRe aLL InmaTes OF loUIsiAnA StAtE pEnitENTIARY at AngOLa, housed iN MaGnOliA 3 dOrMiTOrY. MaGnOlIA 3 DoRMIToRY is A PrisOn sTrUCturE capaBLe Of HoUsIng sIXTy INMAteS, WHO sLEep in oNe lArGe ROOM WITH tHEiR IndIvIDUaL BEds arrangEd sidE bY SIDE in SEvErAL LONG rows. pRIson peRsonnel ChARaCTeRIze the fAciLITY As an aPPROPRiatE PlACEment for aN InMatE WHo iS nOT EaSIly inTEgraTED intO thE GeNErAl PRIsON pOPUlAtion. aFtER maKinG A fOrmAl rEQUESt FOR prOtectION beCause OF DiFfIcUlties encOUNTeREd iN ANOTheR PlacemEnT At anGOLA, dEfeNdant Was movED tO MagNOliA 3 DORmitorY SOme Six weEkS beFore the STabBiNg InCIDeNT ocCURReD. ROBERT sHRiVeR waS AlrEadY hOusED iN ThaT faciLIty. ShriVeR AND DEfeNdAnT, BoTH white inMATeS, sUbseQUENtLY DEvELOpED a homOseXuAL reLATIoNsHiP. anTAGONISM deVeLoPED BETwEeN DEfENDAnt aND SHriVER And A GROuP oF SEVeRAl BLAck InMATeS, WhicH INcluDED thE INsTanT VICtiMs. ONe OF tHOSE INMatES, LArRy THoMas, tesTiFIed ThAT HE and leStER aLleN brokE the loCK on SHrIVER'S lOckeR Box duRING The FriDAy PReCedINg THE stabBInG INCIdENt ANd sTOLE SEvErAL ITemS. LArrY THOMAs aDmItTEd thAt DeFeNDanT aSkEd To hAVE halF OF hiS and shRIveR'S tHiNgs reTuRneD; HowEver, ThomAS was UNwilLiNg OR UNaBLE TO coMPLy. THOmAS MainTAInS ThaT DefENDANt ThREatEnEd to RecoVeR His pROPErTy "oNe Way OR ANoTHEr." wArrEn CaiN, aN INmATe whO TeStifIED For the state, claIMS TO haVE oVErHEArd A CoNVErSaTiON AMONg dEFEnDaNT, sHRiver, LEsTer ALlEN And MArk vinCEnT dURing thE aftErnOOn iMMedIateLy PRecEdINg tHe stAbBiNg IncIDent. cain CHarACTErIZed alLen's aNd viNcEnt's rEspONSE to DeFEnDAnT's RequEst To hAVE HIs propErTY reTUrNEd As OnE oF IndIfFeReNCE. DEfENDAnt WAS adVIsed TO SeEK ReTuRn Of His PRopeRTy whaTeveR wAY he WANtED. dEFEndANt aNd dEfENse witNeSSes, Al bATes AND AuBRey thomPSon, maintAiN tHat, WHEN QUESTiONed about REtURNING defeNDant's pRoPerty, lesTer allEN AdViSEd DeFeNDaNT tO GEt a KNIfE oR "cheCk oUt." HoWevEr, deFEndaNT TeSTiFiEd ThAt he dId NOT ReQUEST A TRANSfeR FrOm MaGnolIA 3 dORMitoRY BEcaUse he DId Not wanT to be SEpARaTED frOM SHRIvEr. ratheR, DeFendANT 859 retriEVeD a homEmADE knIfE FRoM tHE pRIsoN REcReaTION YARD, brOught iT INSide ThE DORMitoRY, AND Hid iT With HiS BeLonGINgs. oN sUnday NIgHT In magnoLia 3 DoRmIToRy, lIghts WEre TUrned OFf At 10:00 p.m.; and thE dorMItOry TELEVIsIon WAs TURnED OFF aT MidNiGHt. all INMATes WeRE eXpECted tO Be in BED BY miDNIghT. JaMEs SlAvEn, the CorRECtIoNAL OFfIceR ON DuTy WHEN ThE sTABbiNG INCIdeNt oCCuRRed, mAdE a HeAD cOUNt AT 12:30 a.m. oFfICER sLAVeN reCAlLED tHat dEFENdant, ShRIvER, and waRReN cAIn WEre ALl aWakE wHen that count wAs mADe. wHiLe OfficER slAVeN was IN tHe shOwER RoOM rEPortiNG hiS Head coUnT, FOur inMAteS weRE StabBeD. WHen tHe LIGhTs wEre TuRnEd On, offIcEr sLAveN obSeRVEd dEfeNDAnT StAnDiNG BY his BeD wiTh A kNifE IN hIs HAnd. DEFenDANt'S knifE, in rEAlItY a ShaRPENED fIlE, wAs HeLD In PlACE BY a gLovE or BY GauZe WRApPeD ARoUnd HiS hanD. no otHER weApONS weRe FouND In tHE DOrMItOry "ShAke down" folLOwIng THIs InCiDeNT. as DEFeNdanT WaS EsCorTed From THE DOrmiTory, HE rEmaRkED To capTaIN joHN PurpErA OF the priSoN SecURiTy StAFf, "i staBBED all FOuR Of TheM." aCcounTS of thE stAbBiNG iNCIdEnT DIffeR grEATLy. inMaTEs wARreN CaIn aNd maRk DUhON TEsTiFied THat tHEY SAw DEFendANT gEt Out oF hIs bed ANd PRoCeEd tO StAB riCky gRAy aND mARk VIncenT as THey lAY iN BeD. GRay OccUpIEd A bED IMMedIATeLy ADJaCent tO DeFeNdAnt's bed. vincEnT'S Bed WaS lOCAtED oN the othEr SIde Of gRaY'S bed. whILe graY AND VincEnT WERe beING sTABbed, sHrIVer wENT tO LESTER aLleN's BEd And Hit ALLEN WITh A soCK COnTAIning BattEries. wITh Gray aND VIncEnT IMMoBIliZEd, DEfeNdanT WeNt To shRIver'S AssisTaNCE. defEnDANt staBbeD AlLEn AND IN tHE PRocESs DistURbed DArryl wAShIngTon, wHO ocCupIed ThE BEd iMMEDiaTeLY ADJAcent to aLLEN'S BEd. WAsHINgTon WAS sTABbeD sEVERal tImES BuT MANagED tO GrAb A rADio WHiCh hE HurLEd AgAiNST A PoST. rOBert shrIVeR AckNOWleDGeD That HE hAd a soCK fILLeD wiTH BAtTerIES aND Was ALSO AWARE THat DeFeNdANt hAd BROugHt a kniFE INto The dORmItORY. HE CLAimS IGNOrAnCe AS tO rIckY grAy's OR MARk ViNCEnT'S ROLE in tHe fiGhT. rAtHer, shRIVER cONteNDs ThAt ThE figHt BeGAn WHEN LEStEr ALlEn APProacHED HIs BED ANd SaID, "COmE ON aND Do SOMETHiNg for mE." IN RESPoNSE To tHaT ProPOsitIon, SHrivER Got OUT oF His beD, WhicH wAs poSITIoneD eND on enD reLATivE TO DeFeNdAnt's bEd, AND sTRUcK allEn wiTh the SoCk fULL Of baTTERiEs. DefENdANt camE to shRIvER's ASsIstaNCE. dEFENdanT'S VERsiON OF ThE iNcIdEnT Is SUPPOrTeD in paRT bY THE TesTIMOnY oF FELlOw inMAtes, al BaTEs, aubREY ThOMPSOn aND doNAld fONteNOt. DeFenDaNT mAinTAins That WHEN sHRIVEr aND alLeN FIrst sTARTEd ArgUINg he put oN A gloVe AnD PlACED ThE hoMEMaDE kNifE in hiS LEft hAnD. deFenDaNt deNiED UtiLizINg AnY tAPE oR gauze To wRap hIS HAnD. wHEN deFenDaNT GOt UP to HELp ShRIVeR, hE Was aTTAcKed BY RICkY Gray AnD mArK ViNcent. GRay HAd a kNIfE iN HIS RigHT hAND, aND VinCeNt AppeAReD unARMEd. DefENDANT grABBED GRaY'S rIGht HAND; And DEfeNDaNT, GrAy AND vinceNT FeLl onTo a bEd. DEfeNdANt DEScrIBed HIs eNCOUnter wiTh gRAY And vIncEnt: "[w]e was kINDa rAssliNg (sic), AlL ThREE of uS oN THe beD, STANDinG Up, Falling back dOwn, AND I waS jusT stAbbiNG." afTER grAy ANd viNCeNt WErE InCApaCitATEd, DEfeNdant INtERvEnED In THe FIGHT BetweEn SHrIver and Allen. defeNDANT StaBBeD allEN "oNcE oR TWicE". DeFENDaNt dID not KNOW If alLeN HAD a wEaPon. DefENDAnt anD SHRIvER wERE nEIThEr bRUISeD NOR cut aS a RESULt oF thE Incident. dR. emIle LagA perFoRmed AUTOPSiES oN ricKy GRay aNd MarK VINcent. DR. lAGa NOTED ThaT GrAY HaD fouR StAB wOuNdS tO THe uPPER, lEFt HaLF OF His bOdy. ONE DeEP WoUND pEnETrAted THe frOnT WaLL OF HiS hEarT. No dEFeNsiVe iNJURiEs wErE fouNd on Gray's ExTREMItIES. dr. laga wAs Certain THaT thE assAiLAnT AnD Gray HAD bEEn fAce To FaCe When GRaY WAs sTabBed, AND he hYPotHeSIzEd ThAT GRAY mIGHT HaVE bEeN IN a SuPINE posITiOn. vInCEnt sUffeRed tWO stAb WOuNdS TO HiS Chest. AGain, one wOuNd PEnetrated tHe carDiaL Sac, AnD dr. LAGa wAs CerTAin THat tHE AssaIlAnt aNd VINcEnT hAd Been fAcE To FaCE WhEn VinCEnT wAS stAbbed. 860 dR. DebrA cAvAlIEr, whO perforMED The aUTOPsy OF leSTER ALlEn, noTEd twO sTab wounds, one PosITIONed IN The mid-aBdOMEn aND ThE OtHeR On AllEn'S riGhT side. AlLEn ALso hAd TwO cuTs ON HiS fAcE AnD a lACeRatIOn oN his FoREHEaD. aGain, nO DeFeNSive wOuNdS weRe lOCaTEd oN ALLeN'S haNd oR FoREaRmS, anD dr. caVaLIER oPiNeD thAt Allen aND HIS assailaNT Had BEen Face tO fAcE duRIng THe atTAcK. ASSIgnMent oF ERRor NuMBEr 1: By THis aSsIgnmeNT, DeFEnDaNT cOntEnds thAt The tRiaL cOURt erreD BY FAiLing tO supPreSs A wRiTtEn sTATEmEnT MADe BY HiM. deFENDANt ArGUEs that HiS WRiTTen StAtemENt WAs tAiNTeD bECAUsE pRiOR To maKinG ThAt sTATemeNT hE Had been takEN inTO CuSTODY AND oRAlLY QuestioNeD abOUt the INcIdENT wItHouT haVIng BeEn aDVIsed of	486 So.2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 KA 0899. Court of Appeal of Louisiana, First Circuit. March 25, 1986. Rehearing Denied April 29, 1986. 857 Stephen L. Laiche and William B. Faust, III, Asst. Attys. Gen., New Orleans, for the State. J. Michael McDonald andDavid E. Stanley, Baton Rouge, fordefendant. Before GROVER L.COVINGTON,C.J., and WATKINSand SHORTESS, JJ.WATKINS, Judge. Michael Burge was originally charged by a single grand jury indictment with three counts of first degreemurder.Prior to trialon the merits, the indictment was amended to reduce each charge to second degreemurder in violationof LSA-R.S. 14:30.1. Thereafter, defendant withdrew his former plea ofnot guilty andnotguilty by reason of insanity and entered a plea of not guilty. Following trial by jury, defendnat was convicted oneach count as charged by the amended indictment. Thetrial court sentenced defendant to a term of life imprisonment, without benefitof parole, probation, or suspension of sentence, on each count. The sentences forcounts oneand two are to be served consecutively to each other and to any other sentence defendant 858 is now serving. The sentencefor count three is to be served concurrently. Defendant brings this appeal urging ten assignments of error: 1. The trial court erred in failingtosuppress the confession of the defendant. 2. The trial court erred in failing to suppress inflammatory, prejudicial photographs. 3. The trialcourt erred in not granting a mistrial after two violations ofits order of sequestration of witnesses.4.The trial court erred in failing to grant amistrial afterthemisconduct and harassment of defense witnesses by the state. 5. Thetrial courterred in failing to grant a mistrial after harassment by the state of the defendant. 6. Thetrial court erredin failing to grant a mistrial after improper conduct ofthe prosecution by referring to a nickname of the defendant in violation ofcourt order. 7. The trial court erred in failingto grant a judgment of acquittal. 8. The trial court erred in failing to granta mistrial or a new trial becauseof thecumulative prejudicial effect of the actsof the state and prosecution. 9. The trial court erredin failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. The trial court erred inadmitting into evidence the autopsyreport of Dr. Cavalier. It is conceded by defendant that, shortly after midnight on a Sunday night, hefatally stabbed RickyGray, MarkVincent and Lester Allen with a knife fashioned from a sharpened file. A fourth individual,Darryl Washington, was also stabbed by defendant, but he survived.[1]At thetime of the instantoffenses, defendant and the victims were all inmates of LouisianaState Penitentiary at Angola,housed in Magnolia 3 dormitory. Magnolia 3 dormitory is a prison structure capableof housing sixty inmates, who sleep inone large room with their individual beds arrangedside by side in several long rows.Prison personnel characterize the facility as an appropriateplacement for an inmate who is not easily integrated into the general prison population.After making a formal request for protection becauseof difficulties encountered in anotherplacement atAngola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. Robert Shriver was already housed in that facility.Shriverand defendant,bothwhite inmates, subsequently developed a homosexual relationship. Antagonism developed between defendant and Shriver and a groupof several black inmates, which included the instant victims. One of those inmates, Larry Thomas, testified that he and Lester Allen broke the lock on Shriver'slocker box during the Fridaypreceding the stabbing incident and stole several items. Larry Thomas admitted that defendant asked to have half ofhis and Shriver's things returned; however, Thomas was unwilling orunable to comply. Thomas maintains that defendant threatenedtorecover his property "one way or another." Warren Cain, an inmate who testified forthe state, claimsto have overheard a conversation among defendant, Shriver,Lester Allen and MarkVincent during the afternoon immediately preceding the stabbing incident. Cain characterized Allen's andVincent's response to defendant's request to have his property returned as one of indifference. Defendantwasadvised toseek return ofhis property whatever way hewanted. Defendant and defense witnesses, Al Bates andAubrey Thompson, maintain that,whenquestioned aboutreturning defendant's property, Lester Allenadvised defendant to get a knife or "check out." However, defendant testified that he didnot request a transfer from Magnolia 3dormitory because he did not want to be separated from Shriver. Rather, defendant 859retrieved a homemade knifefromthe prison recreation yard, brought it inside the dormitory, and hid it with his belongings. On Sunday night in Magnolia 3 dormitory, lights were turned off at 10:00 p.m.; and the dormitory television was turnedoff atmidnight. All inmates were expectedto be in bed by midnight. James Slaven, the correctionalofficer on duty when the stabbing incident occurred, made a head count at 12:30 a.m. Officer Slaven recalled that defendant, Shriver, andWarren Cain were all awake whenthat count wasmade. While Officer Slaven wasin the shower room reporting his head count, four inmates were stabbed. Whenthe lights were turned on, Officer Slaven observed defendant standing by his bed with a knife inhis hand. Defendant's knife, in reality a sharpenedfile, was held inplace by a glove or by gauzewrapped around hishand. No other weapons were foundin the dormitory "shake down" followingthis incident.As defendant was escorted from the dormitory, he remarked to Captain John Purpera of the prison security staff, "I stabbed all four of them."Accounts of the stabbingincident differgreatly. Inmates Warren Cain and Mark Duhontestified that they saw defendant get out of his bed and proceedto stab RickyGrayand Mark Vincent as they layin bed. Grayoccupied abedimmediately adjacent to defendant's bed. Vincent's bed was located on the other sideof Gray's bed. While Gray and Vincent were being stabbed, Shriver went to Lester Allen's bed and hit Allen with a sock containing batteries. WithGray and Vincent immobilized, defendant went to Shriver's assistance. Defendant stabbed Allen and inthe process disturbed Darryl Washington, whooccupied thebed immediately adjacent to Allen's bed. Washington was stabbed several times butmanaged to grab a radio which he hurled against a post. Robert Shriver acknowledgedthat he had a sockfilled with batteries and was also aware that defendant had broughta knife into the dormitory. He claims ignorance as to Ricky Gray's or Mark Vincent's role in the fight. Rather, Shriver contends that the fight began when LesterAllen approached his bed and said, "Come on and do something for me." In response to that proposition,Shriver got out of his bed,which was positionedend on end relative todefendant's bed, andstruck Allen with the sock full of batteries. Defendant came to Shriver's assistance. Defendant's version of the incident is supported in part by the testimonyof fellow inmates, Al Bates, Aubrey Thompson and DonaldFontenot. Defendant maintains that when Shriverand Allen first started arguinghe put on a glove and placed thehomemade knife inhis left hand. Defendantdenied utilizing any tapeor gauze to wraphis hand.When defendant got up tohelp Shriver, he was attacked by Ricky Gray and Mark Vincent. Gray had a knife in his right hand, andVincent appearedunarmed. Defendant grabbedGray's right hand; and defendant, Gray and Vincent fell ontoa bed. Defendant describedhis encounter with Gray andVincent: "[W]e waskinda rassling (sic), all three of us on the bed, standing up, falling back down, and I wasjust stabbing." After Gray and Vincent were incapacitated, defendant intervened in the fight between Shriver and Allen. Defendant stabbed Allen "once or twice". Defendant did not know if Allen had a weapon. Defendant and Shriverwere neither bruisednor cut as a result ofthe incident. Dr. Emile Laga performed autopsies onRicky Gray and Mark Vincent. Dr.Laga noted that Grayhad four stab woundsto the upper, left half ofhisbody. One deep woundpenetrated the frontwall of his heart. Nodefensiveinjuries were foundon Gray's extremities. Dr. Laga was certain that the assailant and Gray had been face to face when Gray was stabbed, andhehypothesized that Gray might have been ina supine position. Vincent suffered two stab wounds to hischest.Again, onewound penetrated the cardial sac,and Dr. Laga was certain that the assailant andVincent hadbeen face to facewhen Vincent was stabbed. 860 Dr. Debra Cavalier,who performed theautopsyof Lester Allen, noted two stab wounds, one positioned in the mid-abdomen and theother on Allen's rightside. Allen also had two cuts onhis face and alaceration on his forehead. Again, no defensive wounds were located on Allen's hand or forearms, and Dr. Cavalier opined that Allenand his assailant had been face to face during theattack. ASSIGNMENT OF ERROR NUMBER1: By this assignment, defendant contends that the trial court erredby failing to suppress a writtenstatement made by him. Defendantargues that his written statement wastainted becauseprior tomaking that statement he had beentakeninto custody and orallyquestioned about the incident without having been advised of	486 So.2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 _KA_ 0899. _Court_ of Appeal _of_ Louisiana, First Circuit. March 25, 1986. Rehearing Denied April 29, _1986._ 857 _Stephen_ L. Laiche and William B. Faust, III, Asst. Attys. Gen., New Orleans, _for_ the _State._ J. _Michael_ _McDonald_ and David E. Stanley, Baton Rouge, _for_ defendant. _Before_ GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ. WATKINS, _Judge._ Michael Burge _was_ originally charged by a _single_ _grand_ _jury_ indictment with _three_ counts of first degree _murder._ Prior to trial on the _merits,_ the _indictment_ was amended _to_ _reduce_ each _charge_ to second degree murder in violation of LSA-R.S. 14:30.1. Thereafter, defendant withdrew his former _plea_ of _not_ _guilty_ and not _guilty_ _by_ reason of _insanity_ and entered a _plea_ of not guilty. Following trial by _jury,_ defendnat was convicted on each count as _charged_ _by_ _the_ amended _indictment._ The trial court sentenced defendant to a term _of_ life imprisonment, without benefit _of_ parole, probation, or _suspension_ of sentence, on _each_ count. _The_ sentences for counts one and two are to be served consecutively _to_ _each_ other and _to_ any other sentence defendant 858 is now serving. The sentence for count three is _to_ be served concurrently. Defendant brings this appeal _urging_ ten assignments _of_ error: _1._ _The_ trial court erred in failing _to_ suppress the confession _of_ the defendant. 2. _The_ trial court _erred_ _in_ failing to _suppress_ inflammatory, _prejudicial_ photographs. 3. The trial court erred in not granting a mistrial after _two_ _violations_ of its _order_ of _sequestration_ of witnesses. 4. The trial court erred in failing to grant a mistrial after the misconduct and harassment of defense witnesses by _the_ state. 5. The trial court _erred_ _in_ failing _to_ grant a mistrial after harassment _by_ _the_ state _of_ the defendant. 6. _The_ _trial_ court erred in failing to grant a mistrial after improper conduct _of_ the prosecution by referring to a _nickname_ of _the_ defendant _in_ violation of _court_ order. 7. _The_ _trial_ court erred in failing to grant a judgment of acquittal. 8. The _trial_ court erred in failing to grant a mistrial or a new _trial_ _because_ of the cumulative prejudicial effect of the _acts_ of the state and prosecution. 9. The _trial_ court _erred_ in failing to grant a mistrial or seat an _alternate_ juror when a juror _viewed_ the defendant shackled. 10. The trial _court_ erred in _admitting_ _into_ evidence the autopsy report of Dr. _Cavalier._ It is conceded by defendant that, shortly after midnight on a Sunday night, _he_ _fatally_ stabbed Ricky Gray, Mark Vincent _and_ Lester Allen with a knife fashioned from a sharpened file. _A_ fourth individual, _Darryl_ Washington, was _also_ stabbed by _defendant,_ but he survived.[1] At _the_ time of the _instant_ offenses, defendant and _the_ victims were all inmates of Louisiana State Penitentiary at Angola, housed in _Magnolia_ 3 dormitory. Magnolia 3 dormitory is a _prison_ _structure_ capable of housing sixty inmates, who sleep in _one_ _large_ room _with_ their individual _beds_ arranged side _by_ side _in_ several long _rows._ Prison personnel characterize the _facility_ _as_ _an_ appropriate placement for an _inmate_ who is not easily integrated into the general prison _population._ After _making_ a formal _request_ for protection because of _difficulties_ encountered in another placement at Angola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. _Robert_ Shriver was already housed in that facility. Shriver and defendant, both white inmates, subsequently developed a homosexual relationship. Antagonism developed between defendant and Shriver _and_ a group of _several_ black inmates, _which_ included the instant victims. _One_ of those inmates, Larry Thomas, testified that he and Lester Allen broke the lock on Shriver's locker box during the Friday _preceding_ the _stabbing_ incident and stole several items. Larry Thomas admitted _that_ defendant asked to _have_ half of his and Shriver's things returned; _however,_ Thomas was unwilling or _unable_ to comply. Thomas maintains that _defendant_ _threatened_ to _recover_ _his_ property _"one_ way or another." Warren Cain, an inmate who _testified_ for the state, claims to have overheard a conversation among _defendant,_ Shriver, _Lester_ _Allen_ and Mark Vincent during the afternoon immediately preceding the stabbing incident. Cain _characterized_ _Allen's_ and Vincent's response to defendant's request to _have_ his property returned as one of indifference. Defendant was advised to seek return of his property whatever way he wanted. Defendant and defense witnesses, Al Bates and Aubrey _Thompson,_ maintain that, when _questioned_ about returning defendant's property, Lester _Allen_ _advised_ defendant _to_ get a knife or "check _out."_ However, defendant testified that he did not request a transfer from Magnolia 3 dormitory because he did not _want_ _to_ be separated from Shriver. Rather, defendant 859 retrieved _a_ _homemade_ knife from the prison recreation yard, brought _it_ inside the dormitory, and hid it with _his_ belongings. On _Sunday_ night _in_ Magnolia 3 dormitory, lights were _turned_ off at 10:00 p.m.; and the dormitory television _was_ turned off at midnight. _All_ inmates were expected _to_ be in _bed_ _by_ midnight. James _Slaven,_ _the_ correctional officer on duty when the stabbing incident occurred, made a head count at 12:30 a.m. Officer _Slaven_ recalled that _defendant,_ Shriver, and Warren Cain _were_ all _awake_ when that count was made. While Officer _Slaven_ was in the _shower_ room reporting his head _count,_ four inmates were stabbed. When the lights were turned _on,_ Officer Slaven observed defendant standing by _his_ _bed_ _with_ a knife _in_ his hand. _Defendant's_ knife, _in_ reality a sharpened file, was held in place by a glove or by gauze wrapped around his _hand._ No other weapons were found in the dormitory _"shake_ down" following this incident. As defendant was escorted _from_ _the_ dormitory, _he_ remarked to Captain John _Purpera_ of _the_ prison security staff, "I stabbed all _four_ of them." _Accounts_ of the _stabbing_ incident differ greatly. Inmates Warren Cain and Mark _Duhon_ testified that they _saw_ defendant get out of his bed and proceed to _stab_ Ricky Gray and Mark Vincent as they _lay_ in bed. Gray _occupied_ _a_ _bed_ immediately adjacent to defendant's _bed._ Vincent's _bed_ was _located_ on the other side _of_ Gray's bed. While Gray _and_ Vincent were being stabbed, Shriver went _to_ Lester _Allen's_ bed and hit Allen with a sock containing batteries. With Gray _and_ Vincent immobilized, defendant went to Shriver's assistance. Defendant stabbed Allen and in the process disturbed Darryl Washington, who _occupied_ the bed _immediately_ adjacent to Allen's _bed._ Washington was stabbed several times but managed to grab _a_ radio which he hurled against _a_ post. Robert Shriver acknowledged that he _had_ _a_ _sock_ filled _with_ batteries and was also aware that defendant had brought a _knife_ into _the_ dormitory. _He_ claims ignorance as to Ricky Gray's or Mark Vincent's _role_ in the fight. Rather, Shriver contends that the fight began when Lester _Allen_ approached his bed and _said,_ "Come on and do something for me." In _response_ _to_ that proposition, Shriver got out of his bed, which was positioned _end_ on end relative _to_ _defendant's_ bed, and struck Allen with the sock full of _batteries._ Defendant came to Shriver's _assistance._ Defendant's version of the incident is supported in part by the testimony of fellow inmates, Al Bates, Aubrey Thompson and _Donald_ Fontenot. Defendant maintains that when Shriver _and_ Allen first started arguing he put on _a_ glove and placed the homemade _knife_ in _his_ left hand. Defendant denied _utilizing_ any _tape_ or gauze to wrap _his_ hand. When _defendant_ got up to _help_ Shriver, he was attacked _by_ Ricky _Gray_ and _Mark_ Vincent. Gray had a knife in his _right_ hand, and Vincent appeared unarmed. _Defendant_ grabbed Gray's right hand; and defendant, Gray and Vincent fell onto a bed. Defendant described his encounter _with_ Gray and _Vincent:_ "[W]e was kinda rassling (sic), all three of us on the bed, _standing_ up, falling back down, and I was just _stabbing."_ After Gray _and_ Vincent _were_ _incapacitated,_ defendant intervened in the fight _between_ Shriver and _Allen._ _Defendant_ _stabbed_ _Allen_ "once or twice". _Defendant_ did _not_ know if _Allen_ had a weapon. Defendant and _Shriver_ were neither bruised nor cut _as_ a result of the incident. Dr. Emile Laga performed _autopsies_ _on_ Ricky Gray and Mark Vincent. Dr. Laga noted _that_ Gray had four stab wounds to the _upper,_ left half of _his_ _body._ _One_ deep wound penetrated the front wall of his _heart._ _No_ defensive _injuries_ _were_ found on Gray's extremities. Dr. _Laga_ was certain that _the_ assailant and Gray had been face to face when _Gray_ was stabbed, _and_ he hypothesized that _Gray_ might have been in _a_ supine position. Vincent _suffered_ two stab wounds to _his_ _chest._ Again, one wound _penetrated_ the cardial sac, _and_ Dr. Laga was _certain_ that the assailant _and_ Vincent had been face to face when Vincent _was_ stabbed. 860 Dr. Debra Cavalier, who performed the autopsy of Lester _Allen,_ noted two stab wounds, _one_ _positioned_ in the mid-abdomen and the other on Allen's _right_ side. _Allen_ also had two cuts _on_ his face and a laceration on his _forehead._ _Again,_ no defensive _wounds_ were located on Allen's hand or forearms, and Dr. _Cavalier_ opined that Allen and _his_ assailant had been face to face _during_ the attack. ASSIGNMENT _OF_ ERROR _NUMBER_ 1: By this assignment, _defendant_ contends that _the_ trial court erred by failing to _suppress_ a _written_ _statement_ made by him. Defendant argues that his written statement _was_ tainted because prior _to_ making that statement he had been _taken_ into custody _and_ _orally_ questioned _about_ the incident without having been advised of
FILED United States Court of Appeals Tenth Circuit June 9, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT CLARENCE E. GRISSOM, JR., Plaintiff-Appellant, v. No. 10-3245 (D.C. No. 5:09-CV-03128-SAC) RAY ROBERTS, Warden, El Dorado (D. Kan.) Correctional Facility; DANIEL A. JACKSON, CSI, El Dorado Correctional Facility; (FNU) BOKOR, A.R.N.P., Correct Care Solutions, El Dorado Correctional Facility; GEORGE MCNICKLE, M.D., El Dorado Correctional Facility; DON THOMPKINS, El Dorado Correctional Facility; R. SHERMAN, CSII, El Dorado Correctional Facility; C. CASTLMAN, COII, El Dorado Correctional Facility, Defendants-Appellees. ORDER AND JUDGMENT * Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Clarence E. Grissom, Jr., a Kansas state prisoner proceeding pro se, appeals from the dismissal of his civil rights action. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. BACKGROUND Mr. Grissom filed an action under 42 U.S.C. § 1983. The district court screened his form complaint and numerous other filings under 28 U.S.C. § 1915A and entered a screening order. In that order, the district court identified three claims in his form complaint: (1) use of excessive force on August 27, 2008, at the El Dorado Correctional Facility; (2) denial of medical care for injuries sustained during that incident; and (3) creation of a false disciplinary report to cover up the incident. These claims were based on the following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctional officers, told Mr. Grissom to come to his cell door to be restrained while they removed his wheelchair. Mr. Grissom resisted the order, responded obscenely, and threw water at Officer Jackson. Officer Jackson, who knew that Mr. Grissom suffers from chronic obstructive pulmonary disease, used pepper spray on him. Officer Jackson then called a “Condition 30,” which resulted in the arrival of a team of correctional officers. Unidentified members of that team hit Mr. Grissom with an electric shield while he was in his wheelchair, then forcibly removed him from his cell and carried him -2- to the shower, where they held him under hot water. He sustained a broken nose and facial bruises. Thereafter, Mr. Grissom was laid down, his underwear was cut off, and he was rolled onto his side so that defendant Bokor, an advanced registered nurse practitioner (A.R.N.P.), could administer an albuterol inhaler. A.R.N.P. Bokor looked at his face but provided no treatment. The next day, both of his eyes were black and blue, and his right eye was swollen shut. He requested medical treatment but was denied. Later, Officer Jackson, Officer Castlman, and A.R.N.P. Bokor created an allegedly false disciplinary report to justify their actions, charging Mr. Grissom with battery and disobeying orders. Mr. Grissom was found guilty and given sixty days of disciplinary segregation, forty dollars in fines, and ninety days “‘L.G.T.’” R. at 167. 1 Based on these allegations, Mr. Grissom requested damages and the termination of defendants’ employment. In its screening analysis, the district court first concluded that it lacked power to order that any defendants be fired. The court also determined that Mr. Grissom’s request that he be permitted to use his wheelchair while in segregation, which was set forth in an attachment to his form complaint, was improperly joined, identified no named defendant, and stated no supporting facts. The court further concluded that for the same reasons, still other claims, scattered throughout the attachments to his complaint and other filings, were improperly 1 Apparently, “L.G.T.” means “loss of good time.” -3- raised. The court informed Mr. Grissom that it would not consider any claims referred to only in his attachments, and that instead, he must file an amended complaint in order to add claims or defendants; motions, exhibits, or other papers were not proper for that purpose. The court also provided him an overview of joinder under the Federal Rules of Civil Procedure. The district court then dismissed two defendants, Correct Care Solutions and the El Dorado Minimum Clinic, because neither was a “person” for § 1983 purposes, a necessary element of a § 1983 claim. Id. at 176 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 71 (1989)). Further, the court pointed out that Mr. Grissom failed to adequately identify the personal participation of defendants Roberts, McNickle, Thompkins, or Sherman. See R. at 176 (citing, inter alia, Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)). Thus, the court gave Mr. Grissom an opportunity to file a supplemental complaint alleging the necessary participation. The district court also instructed Mr. Grissom that a supplemental complaint was necessary to correct other shortcomings in his pleadings. As to his excessive force claim, the court reasoned that Mr. Grissom’s own statements and exhibits showed that “he was combative, disruptive, and very disrespectful”; he refused to obey orders”; he “had a history of battering or attempting to batter correctional officers”; and he “refused to be restrained and had thrown a cup of water on Jackson.” R. at 179-80. “Under such circumstances,” the court -4- concluded, “the use of some physical force such as pepper spray can hardly be considered repugnant to the conscience of mankind.” Id. at 180. 1 Moreover, the court noted that Mr. Grissom had not alleged severe pain or lasting injury as a result of the pepper spray, as required under Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir. 1983). Therefore, the court concluded, Mr. Grissom had not advanced sufficient factual allegations to show an Eighth Amendment violation based on Officer Jackson’s use of pepper spray or his call for a Condition 30. Turning to the physical injuries Mr. Grissom alleged were caused by the forced removal from his cell, the district court observed that he had not described acts by any specific defendant that caused those injuries. Rather, he alleged he was beaten by a team of correctional officers. Therefore, the court permitted him to file a supplemental complaint to provide additional factual allegations of personal participation by named defendants. The district court next concluded that Mr. Grissom’s allegations did not support his claim that he was denied medical treatment in violation of the Eighth Amendment. Mr. Grissom’s filings indicated that A.R.N.P. Bokor immediately gave him an albuterol inhaler and examined his broken nose and facial injuries. Mr. Grissom did “not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions” or “any 1 The district court apparently drew this standard from a line of Supreme Court cases discussed in Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). -5- ‘substantial harm’ suffered as a result of any delay in treating	filed united states court in appeals tenth circuit june 9, 2011 united states court of appeals elisabeth a. shumaker clerk of court for the tenth circuit clarence e. grissom, jr., plaintiff - appellant, v. no. 10 - 3245 ( d. c. no. 5 : 09 - cv - 03128 - sac ) ray roberts, warden, el dorado ( d. kan. ) correctional facility ; daniel a. jackson, csi, el dorado correctional facility ; ( fnu ) bokor, a. r. n. p., correct care centre, el dorado correctional facility ; george mcnickle, m. d., el dorado correctional facility ; don thompkins, el dorado correctional facility ; r. sherman, csii, el dorado correctional facility ; c. castlman, coii, el dorado detention facility, defendants - appellees. order and judgment * with tymkovich and baldock, circuit judges, and johnson, senior circuit judge. * after examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. see fed. r. app. p. 34 ( a ) ( 2 ) ; 10th cir. r. 34. 1 ( g ). the case is therefore ordered submitted without oral argument. this order and judgment is not binding precedent, except under the doctrines of law upon the case, res judicata, and collateral estoppel. it need be cited, however, for its persuasive value consistent with fed. r. app. p. 32. 1 and 10th cir. r. 3. 1. clarence e. grissom, jr., a kansas state prisoner proceeding pro se, appeals from the dismissal of his civil rights action. we have jurisdiction under 28 u. s. c. § 1291 and affirm. i. background mr. grissom filed an action under 42 u. s. c. § 1983. the district court screened his form complaint and numerous other filings under 28 u. s. c. § 1915a subsequently entered a screening order. in that order, the district court identified three claims in his form petition : ( 1 ) use of excessive force on august 27, 2008, at the el dorado correctional facility ; ( 2 ) denial of medical care for injuries sustained during that incident ; and ( 3 ) creation of a false disciplinary report to cover up the incident. these claims were based on the following allegations. defendants daniel a. jackson and c. castlman, both correctional officers, told mr. grissom to come to his cell door to be restrained while they removed his wheelchair. mr. grissom resisted the order, responded obscenely, and threw water at officer jackson. officer jackson, who knew that mr. grissom suffers from chronic obstructive pulmonary disease, used pepper spray on him. officer jackson then called a “ condition 30, ” which resulted in the arrival of a team of correctional officers. unidentified members of that team hit mr. grissom with an electric shield while he was in his wheelchair, then forcibly removed him from his cell and carried him - 2 - to the shower, where they held him under hot water. he sustained a broken nose and facial bruises. thereafter, mr. grissom was laid down, his underwear was cut off, and he was rolled onto his side so that defendant bokor, an advanced registered nurse practitioner ( a. r. n. p. ), could administer an albuterol inhaler. a. r. n. p. bokor looked at his face but provided no treatment. the next day, both of his eyes were black and blue, and his right eye was swollen shut. he requested medical treatment but was denied. later, officer jackson, officer castlman, and a. r. n. p. bokor created an allegedly false disciplinary report to justify their actions, charging mr. grissom with battery and disobeying orders. mr. grissom was found guilty and given sixty days of disciplinary segregation, forty dollars in fines, and ninety days “ ‘ l. g. t. ’ ” r. at 167. 1 based on these allegations, mr. grissom requested damages and the termination of defendants ’ employment. in its screening analysis, the district court first concluded that it lacked power to order that any defendants be fired. the court also determined that mr. grissom ’ s request that he be permitted to use his wheelchair while in segregation, which was set forth in an attachment to his form complaint, was improperly joined, identified no named defendant, and stated no supporting facts. the court further concluded that for the same reasons, still other claims, scattered throughout the attachments to his complaint and other filings, were improperly 1 apparently, “ l. g. t. ” means “ loss of good time. ” - 3 - raised. the court informed mr. grissom that it would not consider any claims referred to only in his attachments, and that instead, he must file an amended complaint in order to add claims or defendants ; motions, exhibits, or other papers were not proper for that purpose. the court also provided him an overview of joinder under the federal rules of civil procedure. the district court then dismissed two defendants, correct care solutions and the el dorado minimum clinic, because neither was a “ person ” for § 1983 purposes, a necessary element of a § 1983 claim. id. at 176 ( citing will v. mich. dep ’ t of state police, 491 u. s. 58, 66, 71 ( 1989 ) ). further, the court pointed out that mr. grissom failed to adequately identify the personal participation of defendants roberts, mcnickle, thompkins, or sherman. see r. at 176 ( citing, inter alia, trujillo v. williams, 465 f. 3d 1210, 1227 ( 10th cir. 2006 ) ). thus, the court gave mr. grissom an opportunity to file a supplemental complaint alleging the necessary participation. the district court also instructed mr. grissom that a supplemental complaint was necessary to correct other shortcomings in his pleadings. as to his excessive force claim, the court reasoned that mr. grissom ’ s own statements and exhibits showed that “ he was combative, disruptive, and very disrespectful ” ; he refused to obey orders ” ; he “ had a history of battering or attempting to batter correctional officers ” ; and he “ refused to be restrained and had thrown a cup of water on jackson. ” r. at 179 - 80. “ under such circumstances, ” the court - 4 - concluded, “ the use of some physical force such as pepper spray can hardly be considered repugnant to the conscience of mankind. ” id. at 180. 1 moreover, the court noted that mr. grissom had not alleged severe pain or lasting injury as a result of the pepper spray, as required under sampley v. ruettgers, 704 f. 2d 491, 495 ( 10th cir. 1983 ). therefore, the court concluded, mr. grissom had not advanced sufficient factual allegations to show an eighth amendment violation based on officer jackson ’ s use of pepper spray or his call for a condition 30. turning to the physical injuries mr. grissom alleged were caused by the forced removal from his cell, the district court observed that he had not described acts by any specific defendant that caused those injuries. rather, he alleged he was beaten by a team of correctional officers. therefore, the court permitted him to file a supplemental complaint to provide additional factual allegations of personal participation by named defendants. the district court next concluded that mr. grissom ’ s allegations did not support his claim that he was denied medical treatment in violation of the eighth amendment. mr. grissom ’ s filings indicated that a. r. n. p. bokor immediately gave him an albuterol inhaler and examined his broken nose and facial injuries. mr. grissom did “ not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions ” or “ any 1 the district court apparently drew this standard from a line of supreme court cases discussed in estelle v. gamble, 429 u. s. 97, 105 - 06 ( 1976 ). - 5 - ‘ substantial harm ’ suffered as a result of any delay in treating	FILED United States Court of Appeals Tenth Circuit June 9, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT CLARENCE E. GRISSOM, JR. , Plaintiff - Appellant, v. No. 10 - 3245 (D. C. No. 5: 09 - CV - 03128 - SAC) RAY ROBERTS, Warden, El Dorado (D. Kan.) Correctional Facility; DANIEL A. JACKSON, CSI, El Dorado Correctional Facility; (FNU) BOKOR, A. R. N. P. , Correct Care Solutions, El Dorado Correctional Facility; GEORGE MCNICKLE, M. D. , El Dorado Correctional Facility; DON THOMPKINS, El Dorado Correctional Facility; R. SHERMAN, CSII, El Dorado Correctuonsl Facility; C. CASTLMAN, COII, El Dorado Correctional Facility, Defendants - Appellees. ORDER AND JUFG,ENT * Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34 (a) (2 ); !0tt Cir. R. 34. 1 (G ). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32. 1. Clarence E. Grissom, Jr. , a Kansas state prisoner proceeding pro se, appeals from the dismissal of his civil rights action. We have jurisdiction under 28 U. S. C. § 1291 and affirm. I. BACKGROUND Mr. Grissom filed an action under 42 U. S. C. § 1983. The district court screened his form complaint and n6merouW other filings under 28 U. S. C. § 1915A and entered a screening order. In that order, the district court identified three claims in his form complaint: (1) use of excessive force on August 27, 2008, at the El Dorado Correctional Facility; (2) denial of medical care for injuries sustained during that incident; and (3) creation of a false disciplinary report to cover up the incident. These claims were based on the following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctional officers, told Mr. Grissom to come to his cell door to be restrained while they removed his wheelchair. Mr. Grissom resisted the order, responded obscenely, and threw water at Officer Jackson. Officer Jackson, who knew that Mr. Grissom suffers from chronic obstructive pulmonary disease, used pepper spray on him. Officer Jackson then called a “ Condition 30, ” which resulted in the arrival of a team of correctional officers. Unidentified members of that team hit Mr. Grissom with an electric shield while he was in his wheelchair, then forcibly removed him from his cell and carried him - 2 - to the shower, where they held him under hot water. He sustained a broken nose and facial bruises. Thereafter, Mr. Grissom was laid d)Dn, his underwear was cut off, and he was rolled onto his side so that defendant Bokor, an advanced registered nurse practitioner (A. R. N. P. ), could administer an albuterol inhaler. A. R. N. P. Bokor looked at his face but provided no treatment. The next day, both of his eyes were black and blue, and his right eye was swollen shut. He requested medical treatment but was denied. Later, Officer Jackson, Officer Castlman, and A. R. N. P. Bokor created an allegedly false disciplinary report to justify their actions, charging Mr. Grissom with battery and disobeying orders. Mr. Grissom was found guilty and given sixty days of disciplinary segregation, forty dollars in fines, and ninety days “ ‘ L. G. T. ’ ” R. at 167. 1 Based on these allegations, Mr. Grissom requested damages and the termination of defendants ’ employment. In its screening analysis, the district court first concluded that it lacked power to order that any defendants be fired. The court also determined that Mr. Grissom ’ s request that he be permitted to use his wheelchair while in segregation, which was set forth in an attachment to his form complaint, was improperly joined, identified no named defendant, and stated no supporting facts. The court further concluded that for the same rFas9ns, still other claims, scattered throughout the attachments to his complaint and other filings, were improperly 1 Apparently, “ L. G. T. ” means “ loss of good time. ” - 3 - raised. The court informed Mr. Grissom that it would not consider any claims referred to only in his attachments, and that instead, he must file an amended complaint in order to add claims or defendants; motions, exhibits, or other papers were not proper for that purpose. The court also provided him an overview of joinder Tnrer the Federal T6les of Civil Procedure. The district court then dismissed two defendants, Correct Care Solutions and the El Dorado Minimum Clinic, because neither was a “ person ” for § 1983 purposes, a necessary element of a § 1983 claim. Id. at 176 (citing Will v. Mich. Dep ’ t of State Police, 491 U. S. 58, 66, 71 (1989) ). Further, the court pointed out that Mr. Grissom failed to adequately identify the personal participation of defendants Roberts, McNickle, Thompkins, or Sherman. See R. at 176 (citing, inter alia, Trujillo v. Williams, 465 F. 3d 1210, 1227 (10th Cir. 2006) ). Thus, the court gave Mr. Grissom an opportunity to file a supplemental complaint alleging the necessary participation. The district court also instructed Mr. Grissom that a supplemental complaint was necessary to correct other shortcomings in his pleadings. As to his excessive force claim, the court reasoned that Mr. Grissom ’ s own statements and exhibits showed that “ he was combative, disruptive, and very disrespecyfu, ”; he refused to obey orders ”; he “ had a history of battering or attempting to batter correctional officers ”; and he “ refused to be restrained and had thrown a cup of water on Jackson. ” R. at 179 - 80. “ Under such circumstances, ” the court - 4 - concluded, “ the use of some physical force such as pepper spray can hardly be considered repugnant to the conscience of mankind. ” Id. at 180. 1 Moreover, the court noted that Mr. Grissom had not alleged severe pain or lasting injury as a result of the pepper spray, as required under Sampley v. Ruettgers, 704 F. 2d 491, 495 (10th Cir. 1983 ). Therefore, the court concluded, Mr. Grissom had not advanced sufficient factual allegations to show an Eighth Amendment violation based on Officer Jackson ’ s use of pepper spray or his call for a Condition 30. Turning to the physical injuries Mr. Grissom alleged were caused by the forced removal from his cell, the district court observed that he had not described acts by any specific defendant that caused those injuries. Rather, he alleged he was beaten by a team of correctional officers. Therefore, the court permitted him to file a supplemental complaint to lrogide additional factual allegations of personal participation by named defendants. The district court next concluded that Mr. Grissom ’ s allegations did not support his claim that he was denied medical treatment in violation of the Eighth Amendment. Mr. Grissom ’ s filings indicated that A. R. N. P. Bokor immediately gave him an albuterol inhaler and examined his broken nose and facial injuries. Mr. Grissom did “ not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions ” or “ any 1 The district court apparently drew this standard from a line of Supreme Court cases discussed in Estelle v. Gamble, 429 U. S. 97, 105 - 06 (1976 ). - 5 - ‘ substantial harm ’ suffered as a result of any delay in treating	FILED United States Court of Appeals Tenth Circuit June 2011 OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT CLARENCE E. GRISSOM, JR., Plaintiff-Appellant, v. No. 10-3245 (D.C. No. 5:09-CV-03128-SAC) ROBERTS, Warden, El (D. Correctional Facility; DANIEL A. JACKSON, CSI, El Dorado Correctional Facility; (FNU) BOKOR, A.R.N.P., Correct Care Solutions, El Dorado Correctional Facility; GEORGE MCNICKLE, M.D., El Dorado Correctional Facility; DON THOMPKINS, El Dorado Correctional Facility; SHERMAN, CSII, El Dorado Correctional Facility; C. CASTLMAN, COII, Dorado Correctional Facility, Defendants-Appellees. ORDER AND JUDGMENT * Before TYMKOVICH and BALDOCK, Circuit Judges, and Senior Circuit Judge. * After examining the briefs and appellate record, panel has determined unanimously that oral argument would not materially assist determination of appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The is therefore ordered submitted argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res collateral estoppel. It may be cited, however, for value consistent with Fed. R. App. and 10th Cir. R. Clarence E. Grissom, Jr., a Kansas state prisoner proceeding pro se, appeals from the dismissal of his civil rights action. We have jurisdiction under 28 U.S.C. § 1291 and I. BACKGROUND Mr. Grissom filed an action under 42 U.S.C. § 1983. The district court screened form complaint and numerous other filings under 28 U.S.C. § and entered a screening order. In that order, the district court identified three claims in his form complaint: (1) use of excessive force on August 27, 2008, at the Dorado Correctional Facility; denial of medical care for sustained during that incident; and creation of a false disciplinary report to cover up the incident. These were based on the following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctional officers, Mr. Grissom to come to his cell door to be restrained while they removed his wheelchair. Mr. the responded obscenely, and threw at Officer Jackson. Officer Jackson, who knew that Mr. Grissom suffers from chronic obstructive disease, used pepper spray on him. Officer Jackson then a “Condition 30,” resulted in the arrival of team correctional officers. Unidentified members of that team hit Mr. Grissom with electric while he was in his wheelchair, then forcibly removed him his cell and carried him -2- the shower, where they held him under hot water. sustained a broken nose facial bruises. Thereafter, Mr. Grissom laid down, his underwear was cut off, and he was rolled onto his side so that defendant Bokor, an advanced registered nurse (A.R.N.P.), administer an albuterol inhaler. A.R.N.P. Bokor looked at his face but provided no treatment. The next day, both of his eyes were black and his right eye was swollen shut. He requested medical treatment but was Later, Officer Officer Castlman, and created an false disciplinary to justify their actions, charging Mr. Grissom with battery and disobeying orders. Grissom was found guilty and sixty days of segregation, forty dollars in fines, and ninety days “‘L.G.T.’” R. at 167. Based on these allegations, Grissom requested and the of defendants’ employment. In its screening analysis, the district first concluded that it lacked power to order that any defendants be fired. The court also determined that Mr. Grissom’s request that he be permitted to use his in segregation, which was set forth in an to his form complaint, was improperly joined, identified no named defendant, and stated no supporting facts. The court further that for the same reasons, still other claims, throughout the attachments to his complaint and other filings, were improperly 1 Apparently, “L.G.T.” means “loss of good time.” -3- raised. The court informed Mr. Grissom that it would not consider any claims referred to only in his attachments, and that instead, he must file an amended complaint in order to claims or defendants; motions, other papers were not proper for that purpose. The court also provided him an overview of joinder under the Federal Rules of Civil Procedure. The district court then dismissed two defendants, Correct Care Solutions and the El Dorado Minimum Clinic, neither was a “person” for § 1983 a necessary element of a 1983 claim. Id. at 176 (citing Will v. Mich. Dep’t of State 491 U.S. 58, 66, 71 (1989)). Further, the court pointed out that Mr. Grissom failed to adequately identify the personal participation of defendants Roberts, McNickle, Thompkins, or Sherman. See R. at 176 inter alia, Trujillo v. Williams, 465 F.3d 1210, (10th Cir. 2006)). Thus, the court gave Mr. Grissom an opportunity to a supplemental complaint alleging the participation. The district also instructed Mr. Grissom that a supplemental complaint was necessary to correct other shortcomings in his pleadings. As to excessive force claim, the court reasoned Mr. Grissom’s own statements and exhibits showed that “he was combative, disruptive, and very disrespectful”; he refused to obey orders”; he “had history of battering or to batter correctional and he “refused be and had thrown a cup of water Jackson.” R. at 179-80. “Under such circumstances,” the court concluded, “the use of some physical force such pepper spray can hardly be considered repugnant to the conscience of mankind.” Id. at 180. the court that Mr. Grissom had not alleged severe pain or injury as result of the pepper spray, as required under Sampley v. 704 F.2d 491, 495 Cir. Therefore, concluded, Mr. Grissom had advanced sufficient factual to show an Eighth Amendment violation based on Officer Jackson’s use of pepper spray or his call for a 30. Turning to physical injuries Mr. Grissom alleged were caused by the forced from his cell, the district court observed he had not described acts by any specific that caused those injuries. Rather, he alleged he was beaten by a team of correctional Therefore, the court permitted him to file a supplemental to provide additional factual allegations of personal participation by named defendants. The district next concluded that Mr. Grissom’s allegations did not support his claim that was denied medical treatment in violation of the Eighth Amendment. Mr. Grissom’s filings indicated that A.R.N.P. Bokor immediately gave him albuterol inhaler and examined his broken nose and facial injuries. Mr. Grissom did “not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions” or “any 1 The apparently drew this standard from a line of Supreme Court cases discussed in Estelle v. 429 97, 105-06 (1976). -5- ‘substantial harm’ suffered as a result of any delay in treating	FILeD UNITEd sTates CouRT OF AppEaLS tEnth cIrCUIT JunE 9, 2011 UNiTed sTaTES cOUrT OF appEals ElIsAbeTH a. shUMAkER clerK OF CoUrt FoR THE TeNtH cIRcUIt cLAReNCe e. griSsOm, JR., PLaINtiFf-ApPELlanT, v. No. 10-3245 (d.c. No. 5:09-CV-03128-SAc) rAY ROberts, waRDeN, el dORaDO (d. Kan.) CORRECTIoNAL FACiLiTY; dANiEL A. jAcKSON, csi, El Dorado CorRECtIOnal FAciLitY; (fnU) bOKor, A.R.N.P., cORreCT CARE soLuTioNS, EL DorADO cORReCTioNaL FAcilIty; geOrGE MCNIcKle, m.D., el DoradO coRRECTionAl faCILiTy; dON thoMpkIns, el DOrAdO CORrEctioNAL FaCiLItY; R. SheRman, cSII, eL dOrADO CORRecTIONal faCilITy; C. caStlMaN, CoII, EL dORaDO coRreCtiOnaL fACIlItY, DEFENdANts-aPpellEeS. OrdeR and JudGMeNT * BeFORe tYMKoviCh aNd balDock, cIrcuIT JudGES, AND BrorBy, SeNiOr CirCUit juDGE. * aFtER eXamiNing tHE BrIEfS anD aPPeLLaTE reCorD, thiS pANeL haS deteRMINeD UNANIMOUsLy ThAt oRaL ArGUmeNt WoUld Not mATEriaLlY ASsISt the dETeRmINAtion of thiS aPPeAL. SeE feD. R. app. p. 34(A)(2); 10Th CIr. r. 34.1(G). ThE casE IS tHeReFORe ORDEreD SUBmitteD wiTHout OraL arGumEnT. ThIS ordeR And jUDgmEnT iS not BindING prEcEdENt, exCept UnDER tHE docTrInES oF law Of tHE CASe, Res jUDICAtA, AnD cOLLATErAL eStopPEl. IT MaY be cITEd, HoWEvEr, fOR Its perSuASiVE vALUE coNSIStEnt WitH FEd. R. app. P. 32.1 ANd 10TH CiR. R. 32.1. cLarEnCE E. GRisSom, JR., A KansAs StAtE PRISOnER prOCeeDiNg prO se, aPPeALS FROm tHe dISMIsSAL Of hiS CiVil righTs AcTioN. we hAVe juRisDictioN UnDer 28 U.S.C. § 1291 and AffIRm. i. BACKGRounD Mr. GRisSoM fILeD An actiON UNDEr 42 u.S.c. § 1983. THe DISTRICT cOurt ScrEEnED hIs fOrm ComPlAiNT aNd NUmerOus OtHEr fiLiNgS UnDER 28 u.s.c. § 1915A AnD entEReD A sCreeninG ORdeR. in THaT ORdER, THe diSTrict cOUrT IdeNTiFIED ThreE ClAiMs in His fOrM COMplaInT: (1) uSE Of EXCessiVe forCe On aUGUST 27, 2008, At THE eL doradO CoRReCTIoNal faciLITY; (2) dEnIAL of MEdIcAL CARe fOR INJUriES SustAINED dURiNG tHAT inCIDeNT; and (3) cReATion of A FaLse DISciplInARY rEPoRT to coVeR UP the iNcIDENT. THeSE cLAImS WERE BAsed oN The folLOWiNg AlLegATionS. deFEnDants DaNIeL a. JAckSoN And c. CASTlmAn, BOTh CORrEctiONAl oFfICers, toLd MR. GriSSOM to comE tO His CElL DOor To BE rEsTRainED WhilE thEy RemoVed hiS WHEelChAIr. Mr. GrIssOm rESiSteD ThE oRDER, RESponded oBScenEly, AND thrEW wATeR at OFfiCer jAcksON. oFfiCeR jACkSon, WHo KnEW ThaT mr. GRisSom sUFFeRs From ChrOnIc obStruCTIVE PulMonaRy DIseASe, uSEd pePpEr sPRAy ON HIm. oFFIcer JACKSon tHEN cAlLeD a “CoNDITION 30,” wHIch RESUltED in The ArrIvAl Of a TEAm OF cOrRECtiOnAL ofFiCERS. uNIdeNTiFIED MeMBERS Of ThAt TEAM HIT mR. GrISsoM wITH An ELectriC sHIeLd wHiLE He was IN hIS WhEeLChaIr, ThEN fORCiBly RemoveD hIM froM His cEll aNd carrIed HIM -2- TO THe shOWEr, wHERe they HELD HiM unDeR hot WAtER. HE SUstAInED a Broken NOse AND fACiAL bRuisES. theREaFtEr, mR. GRisSom wAS Laid DOwN, HIs uNDERWeAr WaS CUt Off, AnD HE wAs ROLleD onTo His SIde sO tHAt defendaNT BOkOr, aN ADvaNCed REGiSTErEd NURse PRaCTitIoNer (A.r.n.p.), cOUld admINiSTER aN aLbUteROL InHALer. A.r.n.P. boKoR lOOkeD at HIS FACE But pROViDED NO TREAtmeNT. tHE NExT daY, bOTh Of hiS eyes werE bLaCK AnD bLuE, and hiS riGht EYE WAs SWolLEN sHUT. He ReqUeSTed mEDiCAL tReATmENt BuT wAs DeniED. lateR, OFfICeR JACKson, OfFiceR CaStLMan, aNd A.r.n.p. boKor cREatEd aN aLLegeDlY FaLSE DIsCiplInarY REport to JUSTIfy theIR ACtIoNs, chArGing mr. GrissOm WItH BaTtery and dIsoBEyING OrderS. Mr. GrISSOM wAS fouNd guiLty aNd giVEn SixTy DAYS Of DiscIpLInaRY segREGAtIoN, foRTY DOllArs In fines, AND NiNEtY Days “‘L.g.T.’” R. aT 167. 1 BasEd ON ThEsE alLeGatiONS, MR. GrisSoM RequeStED DamagEs anD tHe termINATion Of dEFendANts’ empLOYMENt. In ITs sCrEenInG AnaLYsiS, THe DiSTRicT CoUrT fIrst ConCluded tHaT it LACked powEr To OrdER that ANy deFEnDAnTs be fIred. the CoUrt AlSo dETERMInED thAt MR. grisSOM’S rEQuest THaT hE be PeRMitteD to uSe HIs WHEElChAiR wHiLE In segrEGatIoN, WHiCh waS set FORtH IN aN attAChmEnt To hiS Form cOMpLaint, waS impRoPerLy JoiNEd, IDentIFIeD nO named DEfENdANT, and stAtEd NO suPpOrtIng faCTs. THE COuRT FurTHer coNClUdED THAt For tHe sAME REAsoNs, sTIlL otheR cLAimS, ScAtTEReD tHROuGHout THE aTtACHMeNts to hIS COMPlaInt And OthER FiLIngS, weRE IMPropeRLY 1 APPAreNTLY, “l.g.T.” MEaNs “LOSS OF Good time.” -3- raiseD. The COurt inFORMEd mR. gRiSsOm THAt it Would not cOnSIDer Any ClAiMs REfERReD to OnLY in hiS AtTaCHMENts, And THAt InSTEAd, HE muSt FILe an AmeNDed cOMpLAiNT In oRDER TO adD cLaiMS oR DEFenDANtS; mOtIoNS, eXhibITs, oR OtHer PApers wERe NoT ProPer foR THAt pUrPoSE. ThE courT aLSO prOviDed hIm An oVeRviEW of JoinDEr uNDEr The fEDEral rUlES of Civil ProceDUrE. tHe DIsTriCt cOURT thEn DISMissED TwO deFENdaNTs, coRReCt CarE sOLUtions AnD ThE eL DoRADo MiNIMuM cliniC, BEcAuSE neiTheR Was A “PErSon” FOR § 1983 PuRpOses, a nECeSSaRy eLEMeNT Of A § 1983 CLaIm. ID. aT 176 (CItING WiLl V. MicH. deP’t of StATe POlICe, 491 U.s. 58, 66, 71 (1989)). furTHeR, tHE couRT pOiNteD oUt tHat MR. GrIsSOM fAILed TO aDEQUateLy ideNTify tHe PeRSONAl PARtICIpATIOn oF DefeNDAnTS RobERTS, mcnicKLe, thompKINs, oR ShErmAN. SEE R. aT 176 (CITiNG, iNteR ALIA, truJILlo V. wILLiamS, 465 F.3D 1210, 1227 (10TH ciR. 2006)). thUs, the COurT gaVE mR. grIssom an OpPortUnity TO FILe a SupPLEmEnTal COmplAINt ALLEGing THe neCeSSARY PARtICipaTion. tHe DIstRIct COuRT alSo InStRuCTEd Mr. gRiSsom THAT A SUPplEMENtAL ComplAInt waS NECeSsarY tO cORreCt other shOrtCoMiNGs iN hIS pLEAdIngS. aS To HIS exCeSSIVE FoRcE ClAiM, THe cOUrt ReasOneD ThAT MR. griSsom’S OWN StATEmeNTs aND EXhibits sHowED THAt “he WaS CoMBATIve, diSRUptiVE, aND vERy diSrESpECTFuL”; HE rEFuSEd TO ObEy ORdErS”; he “had A HistoRY of bATTeRINg Or aTtEMPtINg To BaTteR corREctIonaL oFFIceRs”; And he “refusEd to BE RestRAIned AnD hAd THRowN A CUp oF wATEr On JaCKSon.” r. at 179-80. “uNDer suCH circUMstances,” the cOUrt -4- conCludeD, “tHe usE oF SOMe PhYsicaL fORce SuCh aS PEpper sPRAY CaN hARdly BE cONSIdERed REpUgnAnT TO The CoNScIenCe OF MaNKInD.” id. AT 180. 1 MOReoVeR, The courT NOtED That Mr. grIsSom hAd not AllegEd SeVEre paiN or LAstinG INjury as A REsUlt of THe PePPER Spray, aS rEquiRed UNDeR saMplEY V. RueTtGERS, 704 f.2d 491, 495 (10Th CIR. 1983). THEreFORE, THE coUrT cOnCLUDed, mR. grisSom had NoT ADvanCed SUfFicIENt FACTUAl AlLEGaTIONs to shOw An eighth aMEnDmENt viOlATion BAsed oN OffIcEr JAcKson’S UsE of pEPPER SPRAY oR His CALL FOr a cONDITIon 30. tUrnING tO tHE physicaL InJUrIES mR. gRissoM ALlegEd WEre cauSEd by thE FOrceD rEmOval FrOM HIs cElL, the dIstRICt COUrt OBsERvED thAt HE had Not DEscRiBeD aCTs by any sPECific DEFeNdanT THat CaUSeD tHoSe INjuries. rATHEr, he alLEgED He wAS beatEN by A TeAm OF cOrReCTIOnal oFFiCErs. THEREForE, ThE coURT permitted hIm tO file A SUpPlemEnTaL comPlaiNT TO PRoVidE aDdItionaL FActUAL aLLEGAtIoNS Of PErSoNAl PaRticipatION BY nAMED DEFENDAnTs. ThE dISTrIcT cOURt nexT CONCludEd tHaT mR. GrIssOM’S alLegaTionS DID nOT sUpPort hIS CLAIm ThaT He WaS deNIeD mEdICAl trEatment IN ViolAtioN of tHE EigHTH amenDmeNT. mR. gRIssOM’s filInGS iNdIcAtEd thaT a.R.N.p. BOKOr iMMedIATEly Gave Him aN aLbuteRol InHALEr and eXAmIneD hIS brokEN Nose aND fACIAL INjURieS. Mr. GRISsOm DiD “Not desCRIBe aNy addItiONAl trEATMeNt AS haVIng BEeN presCRIBED Or ObvioUSlY NecEsSaRY fOr hIS BrOKen nosE or fAciAL aBRaSiONS” OR “anY 1 tHE distrICt couRT APpArEntLy dREw THiS stanDARD fRom a lINe OF sUprEME coUrT caSes disCusSed IN esTeLLe V. gAMBlE, 429 u.S. 97, 105-06 (1976). -5- ‘sUBstAnTiAL haRm’ sUfFered aS A ResuLt of ANy DELAy IN TREaTiNG	FILED UnitedStates Courtof Appeals Tenth Circuit June9, 2011 UNITED STATES COURT OFAPPEALS Elisabeth A. Shumaker Clerk ofCourt FOR THE TENTHCIRCUIT CLARENCE E.GRISSOM, JR., Plaintiff-Appellant, v. No. 10-3245 (D.C. No. 5:09-CV-03128-SAC) RAYROBERTS, Warden, El Dorado(D. Kan.) CorrectionalFacility; DANIELA. JACKSON, CSI, El Dorado Correctional Facility; (FNU) BOKOR, A.R.N.P., Correct Care Solutions, El Dorado Correctional Facility;GEORGE MCNICKLE, M.D., El Dorado Correctional Facility;DON THOMPKINS, El Dorado Correctional Facility;R. SHERMAN, CSII, El Dorado Correctional Facility; C. CASTLMAN, COII, El Dorado Correctional Facility, Defendants-Appellees. ORDER AND JUDGMENT* BeforeTYMKOVICH and BALDOCK, Circuit Judges, and BRORBY,Senior Circuit Judge. * After examining the briefs and appellate record, this panel has determined unanimously thatoral argument would not materially assist the determination of thisappeal.See Fed. R. App. P.34(a)(2); 10th Cir. R. 34.1(G).The case is therefore orderedsubmitted without oral argument. This order and judgment is not bindingprecedent,except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistentwith Fed. R. App. P. 32.1 and10th Cir.R. 32.1. Clarence E. Grissom, Jr., a Kansasstate prisoner proceeding pro se, appealsfrom the dismissal ofhis civilrights action. We have jurisdiction under 28 U.S.C. § 1291 andaffirm. I.BACKGROUND Mr. Grissom filed an action under 42 U.S.C. § 1983. The district court screened his formcomplaint and numerousotherfilings under 28U.S.C. § 1915Aandenteredascreening order. In that order, the district courtidentified three claims in hisform complaint:(1) use of excessive force on August 27,2008, atthe El Dorado CorrectionalFacility; (2) denial of medical care for injuries sustained during that incident; and (3) creation ofa false disciplinary report to cover up the incident. Theseclaims were based on the following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctionalofficers,told Mr. Grissomto come to his cell door to be restrainedwhile they removed his wheelchair. Mr. Grissomresistedthe order, responded obscenely, andthrewwater at Officer Jackson. Officer Jackson, who knew thatMr. Grissom suffers fromchronic obstructive pulmonary disease, used pepper spray on him. OfficerJackson then called a “Condition 30,” whichresulted in the arrivalof a teamof correctional officers.Unidentified members of that team hit Mr. Grissomwith an electric shield while he was in his wheelchair, then forcibly removed himfrom his cell and carried him -2- tothe shower, where they held him under hot water. He sustaineda broken noseand facial bruises. Thereafter, Mr.Grissom was laid down,his underwear wascut off, and he wasrolled onto his side so that defendant Bokor, an advanced registered nurse practitioner (A.R.N.P.), could administer an albuterol inhaler. A.R.N.P. Bokor looked athis face but providedno treatment. Thenext day, both of hiseyes were black and blue, and his right eyewas swollen shut. He requested medical treatment butwasdenied. Later,Officer Jackson, Officer Castlman, and A.R.N.P.Bokor created an allegedly false disciplinary reportto justify their actions, charging Mr. Grissomwith battery and disobeying orders. Mr. Grissom was found guilty andgiven sixtydays of disciplinary segregation, forty dollars in fines, and ninety days “‘L.G.T.’” R. at 167. 1 Based on these allegations, Mr. Grissom requested damagesand the termination of defendants’ employment. In its screening analysis, the district court first concluded that it lackedpower to order that any defendantsbe fired. The court also determined thatMr. Grissom’s request that he be permitted to use his wheelchair while in segregation, which was set forthin an attachment to his form complaint, was improperly joined, identified no named defendant, and statedno supporting facts. The court furtherconcluded that for the same reasons, still other claims, scatteredthroughout the attachments to his complaint and other filings, were improperly 1 Apparently, “L.G.T.” means “loss of good time.” -3- raised.The court informed Mr. Grissom that it would not consider any claims referred toonly in his attachments, and that instead, he must file an amended complaint in order to add claims or defendants; motions, exhibits,orother paperswere not properfor that purpose. The court also provided him an overview of joinderunder the Federal Rules of Civil Procedure. The district court thendismissed two defendants, Correct Care Solutionsandthe El DoradoMinimum Clinic, because neither was a “person” for § 1983 purposes, a necessary element of a § 1983 claim. Id. at 176 (citing Will v.Mich. Dep’tof State Police, 491 U.S. 58, 66, 71 (1989)). Further, the court pointed out that Mr.Grissom failed to adequately identify the personal participation of defendantsRoberts, McNickle, Thompkins, or Sherman. See R.at 176 (citing, inter alia, Trujillo v. Williams, 465F.3d 1210, 1227 (10th Cir. 2006)). Thus,the court gaveMr. Grissoman opportunity to file a supplemental complaint allegingthe necessary participation. The districtcourt also instructed Mr. Grissomthat a supplemental complaint was necessary to correct other shortcomings in his pleadings. As to his excessive force claim, the court reasoned thatMr. Grissom’s own statements and exhibits showed that“hewas combative, disruptive, and very disrespectful”; he refused to obey orders”; he “had a history of battering orattempting to batter correctional officers”; and he “refused to be restrainedandhad thrown a cup of water on Jackson.”R.at 179-80. “Under such circumstances,” thecourt -4- concluded, “the use of some physical forcesuch as pepper spray can hardly be considered repugnant to the conscience of mankind.” Id. at 180. 1 Moreover, the court noted that Mr. Grissom had not alleged severe pain or lasting injury as a result ofthe pepper spray, as required under Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir. 1983). Therefore, thecourt concluded, Mr. Grissom had not advanced sufficient factual allegationsto show an EighthAmendment violation based on Officer Jackson’s use of pepper spray or his call for aCondition 30. Turning to the physical injuries Mr. Grissom alleged were caused by the forced removal from his cell, the district court observed that hehad notdescribedactsby any specific defendant that caused those injuries. Rather, he alleged hewas beaten by a team ofcorrectional officers. Therefore, the court permitted him to file a supplemental complaint to provide additional factual allegationsof personal participationby named defendants. The district court next concludedthat Mr. Grissom’sallegations did not support his claim that he was denied medical treatment in violation of the Eighth Amendment. Mr. Grissom’s filings indicated that A.R.N.P.Bokor immediately gave him an albuterol inhaler and examined his broken nose and facialinjuries.Mr. Grissom did“not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions” or “any1 The district court apparently drew this standard from a line of Supreme Court cases discussed in Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). -5- ‘substantial harm’ suffered as aresultofany delay in treating	FILED United States Court of Appeals Tenth Circuit June 9, 2011 UNITED STATES _COURT_ OF APPEALS Elisabeth _A._ Shumaker Clerk _of_ _Court_ FOR THE TENTH CIRCUIT _CLARENCE_ E. GRISSOM, _JR.,_ _Plaintiff-Appellant,_ v. _No._ 10-3245 (D.C. No. 5:09-CV-03128-SAC) RAY ROBERTS, Warden, El Dorado (D. Kan.) _Correctional_ Facility; _DANIEL_ A. JACKSON, CSI, El Dorado Correctional Facility; (FNU) _BOKOR,_ A.R.N.P., Correct Care Solutions, El Dorado Correctional Facility; _GEORGE_ MCNICKLE, M.D., El Dorado _Correctional_ Facility; DON THOMPKINS, El Dorado Correctional Facility; R. SHERMAN, CSII, El _Dorado_ Correctional Facility; C. _CASTLMAN,_ COII, El Dorado _Correctional_ _Facility,_ Defendants-Appellees. _ORDER_ _AND_ JUDGMENT * Before TYMKOVICH _and_ BALDOCK, _Circuit_ Judges, _and_ BRORBY, Senior Circuit Judge. * After examining the _briefs_ and appellate record, this _panel_ _has_ _determined_ unanimously that oral _argument_ would _not_ _materially_ assist the _determination_ of this appeal. _See_ Fed. _R._ App. _P._ _34(a)(2);_ 10th Cir. R. _34.1(G)._ The _case_ _is_ therefore ordered _submitted_ without oral _argument._ This order and judgment is not binding precedent, except under the _doctrines_ _of_ _law_ of the case, res judicata, and collateral estoppel. _It_ may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and _10th_ Cir. _R._ 32.1. Clarence _E._ Grissom, _Jr.,_ a Kansas state prisoner _proceeding_ _pro_ se, appeals _from_ the dismissal _of_ his _civil_ _rights_ action. We have jurisdiction under 28 U.S.C. § _1291_ and affirm. I. BACKGROUND Mr. Grissom _filed_ an action under 42 U.S.C. _§_ _1983._ The _district_ court screened _his_ form complaint and _numerous_ _other_ _filings_ under 28 U.S.C. § 1915A and entered a _screening_ order. In that _order,_ the district court identified three claims _in_ his _form_ complaint: (1) use _of_ excessive force on August _27,_ 2008, at the El Dorado Correctional Facility; (2) denial of medical care _for_ injuries sustained during that incident; and (3) creation _of_ a false disciplinary report to _cover_ up _the_ incident. These claims were based on _the_ following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctional officers, _told_ Mr. Grissom to come to his cell door to _be_ restrained while they removed _his_ wheelchair. _Mr._ Grissom resisted the _order,_ responded _obscenely,_ and threw water at _Officer_ Jackson. Officer Jackson, who knew _that_ _Mr._ _Grissom_ suffers from _chronic_ obstructive pulmonary disease, used _pepper_ _spray_ on him. Officer Jackson then called a “Condition 30,” which resulted _in_ _the_ arrival of a team of _correctional_ officers. Unidentified _members_ of that _team_ hit Mr. Grissom with _an_ _electric_ shield while _he_ was in _his_ wheelchair, then forcibly removed him from _his_ cell and carried him _-2-_ to _the_ shower, where they held him under hot water. He sustained _a_ broken _nose_ and _facial_ bruises. Thereafter, Mr. _Grissom_ _was_ laid down, _his_ _underwear_ was _cut_ off, and he was rolled onto his side so that defendant _Bokor,_ _an_ _advanced_ registered nurse practitioner (A.R.N.P.), could administer an albuterol _inhaler._ A.R.N.P. Bokor _looked_ at his face _but_ provided _no_ treatment. The next day, both of his eyes were black and _blue,_ and his right eye was swollen _shut._ He requested medical treatment but was denied. Later, _Officer_ Jackson, Officer Castlman, and A.R.N.P. Bokor created an allegedly false disciplinary report _to_ justify their actions, charging Mr. Grissom _with_ battery and disobeying orders. Mr. Grissom was _found_ guilty _and_ given sixty _days_ of disciplinary segregation, forty dollars _in_ _fines,_ _and_ ninety days _“‘L.G.T.’”_ _R._ at 167. 1 _Based_ on these allegations, Mr. _Grissom_ requested damages and the termination of _defendants’_ employment. _In_ _its_ screening analysis, the district court first concluded that it lacked power to order that any defendants be fired. The court also determined that Mr. Grissom’s request that he be permitted to use his wheelchair while _in_ segregation, _which_ was set forth _in_ an attachment _to_ his _form_ complaint, was improperly _joined,_ _identified_ no named defendant, and stated no supporting facts. The court _further_ concluded that for _the_ same reasons, still other claims, scattered throughout the attachments _to_ his complaint and other filings, were improperly 1 Apparently, “L.G.T.” means “loss of good time.” -3- raised. The court informed _Mr._ Grissom that it _would_ not consider any claims referred _to_ _only_ in his attachments, _and_ that instead, he must file an amended complaint _in_ order to _add_ claims _or_ defendants; motions, exhibits, or other papers were not _proper_ for _that_ purpose. The _court_ also provided him an _overview_ _of_ joinder _under_ the Federal _Rules_ of Civil Procedure. The district court then dismissed two defendants, _Correct_ _Care_ _Solutions_ and the El Dorado Minimum Clinic, because neither was _a_ _“person”_ _for_ _§_ _1983_ purposes, a necessary element of a § 1983 claim. Id. at 176 (citing _Will_ v. Mich. Dep’t _of_ State Police, 491 _U.S._ 58, 66, 71 _(1989))._ Further, the court pointed _out_ _that_ _Mr._ _Grissom_ failed to adequately identify the _personal_ _participation_ _of_ defendants Roberts, McNickle, Thompkins, or _Sherman._ See R. at 176 _(citing,_ _inter_ _alia,_ _Trujillo_ v. Williams, _465_ F.3d 1210, _1227_ (10th Cir. 2006)). Thus, the court gave Mr. Grissom an opportunity to file a supplemental complaint _alleging_ the necessary participation. The _district_ court also instructed Mr. Grissom that a supplemental complaint was necessary to correct other _shortcomings_ in his pleadings. _As_ to his _excessive_ _force_ claim, the court reasoned that Mr. Grissom’s own statements and exhibits _showed_ that “he was combative, disruptive, and _very_ disrespectful”; _he_ refused to obey _orders”;_ _he_ “had a _history_ _of_ battering or attempting to batter _correctional_ officers”; and he _“refused_ to _be_ restrained and had thrown a cup of water _on_ _Jackson.”_ R. at 179-80. “Under such circumstances,” the court -4- concluded, “the use of some _physical_ force such as pepper spray can hardly _be_ considered repugnant to _the_ conscience of _mankind.”_ Id. at 180. 1 _Moreover,_ the _court_ noted that Mr. Grissom had not alleged severe pain or _lasting_ injury as a result of the pepper spray, as required under Sampley _v._ Ruettgers, 704 F.2d 491, _495_ (10th Cir. 1983). Therefore, the court concluded, _Mr._ Grissom had not advanced sufficient factual allegations _to_ show _an_ _Eighth_ Amendment violation _based_ on Officer Jackson’s use of pepper _spray_ or his call _for_ a Condition 30. _Turning_ to the _physical_ injuries _Mr._ _Grissom_ alleged were _caused_ by the forced removal from his cell, _the_ district court observed that he had _not_ described _acts_ by any specific defendant that caused those injuries. Rather, he _alleged_ he was beaten _by_ a team of correctional officers. Therefore, the court permitted him to file _a_ supplemental complaint to _provide_ _additional_ factual allegations of personal _participation_ by named defendants. The district court _next_ concluded that Mr. Grissom’s _allegations_ did not _support_ his claim that he was denied medical _treatment_ in violation _of_ _the_ Eighth Amendment. Mr. Grissom’s filings indicated _that_ A.R.N.P. Bokor immediately gave him an _albuterol_ inhaler and _examined_ his broken nose _and_ _facial_ injuries. Mr. _Grissom_ did “not _describe_ _any_ additional _treatment_ as having been prescribed or obviously necessary for his broken nose or facial abrasions” or “any 1 The district court _apparently_ drew _this_ _standard_ from a line of Supreme Court _cases_ discussed in Estelle _v._ _Gamble,_ 429 U.S. 97, 105-06 (1976). _-5-_ ‘substantial harm’ suffered as a result _of_ any _delay_ in treating
165 Pa. Commonwealth Ct. 573 (1994) 645 A.2d 474 BOROUGH OF KENNETT SQUARE v. Amrit LAL, Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs June 6, 1994. Decided July 8, 1994. Reargument Denied August 17, 1994. 577 Thomas R. Kellogg, for appellant. John L. Hall, for appellee. Before COLINS and PELLEGRINI, JJ., and NARICK, Senior Judge. NARICK, Senior Judge. Appellant, Amrit Lal, appeals from an order of the Court of Common Pleas of Chester County, sitting in equity, ordering injunctive relief and appointing an agent for Appellant to manage Appellant's apartment complex known as "Scarlett Manor Apartments," in order to bring it into compliance with the Borough of Kennett Square's (Borough) housing and building codes. This matter commenced in February, 1993 when the Borough filed this action in an effort to bring an end to almost five years of continuous litigation with Appellant. From the time Appellant purchased Scarlett Manor Apartments, in March 1988, when they were apparently in a good state of repair and free of any Housing Code (Code) violations, until December 1993, Appellant was cited for more than 160 Code violations, and the Borough had spent more than $40,000.00 in attorney's fees in this effort to compel Appellant's compliance. As noted by the trial court judge, The Honorable Thomas J. Gavin, who had personally heard more than one hundred (100) cases involving Appellant's rental real estate, "[Appellant] is the 578 single most litigious person in the history of Chester County."[1] (T.C. Opinion at 5, December 8, 1993.) According to the trial court, Appellant's obstructive conduct usually conformed to the following pattern: Following inspections, the borough would communicate deficiencies to the defendant and suggest that he contact the borough regarding the resolution of same. Several months would pass, often with another intervening inspection, but no corrective action taken. More letters would be generated and ultimately defendant would agree to remedy the deficiencies by a date certain. It is important to note that the defendant was always given leeway to select a date by which the repairs, or deficiencies, would be corrected. The corrective date would come and go with no action by defendant, whereupon the borough would issue citations. Hearings would then be scheduled before the district court (District Court 15-3-04) where the defendant would or would not appear to defend. Whether found guilty by the District Justice or in absentia, an automatic appeal would be taken to the Court of Common Pleas. By the time the cases found their way to my courtroom the deficiencies, which would now be months if not years old, remained uncorrected. In each case numerous pre-trial motions would be filed, often on the day scheduled for trial, asserting that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. Ultimately the cases would be heard, appropriate verdicts rendered and plaintiff advised that if the repairs were corrected pre-imposition of sentence, nominal fines would be imposed. Invariably, post-verdict motions would be filed, no corrections made and the defendant sentenced accordingly. Thereafter, motions to vacate sentence and/or appeals would be filed with the deficiencies still uncorrected. The deficiencies 579 cited by the borough, by way of example and not limitation, run the gamut from countless vectors (a polite euphemism for cockroaches) scurrying about the apartments to defective and/or leaking and/or missing plumbing fixtures, lighting fixtures that do not work, windows with broken or missing panes, or screens, loose or missing balcony railings, leaking roofs and trash strewn about the properties. (T.C. Opinion at 2-3, December 8, 1993). As a result of this delay and vexatious conduct, the Borough filed a complaint asking for the extraordinary remedy of appointment of an agent to manage the apartments and correct the Code violations. In response, Appellant filed preliminary objections which were denied, and Appellant was given leave to file an answer to the Borough's complaint within twenty (20) days. Appellant failed to file an answer within the time allowed, and instead appealed the trial court's denial of his preliminary objections, via a petition for review, to this court. Appellant's petition to vacate Judge Gavin's order denying his preliminary objections was denied by Judge MacElree of the Chester County Court of Common Pleas. Appellant was notified that a default judgment would be taken if he did not file an answer within ten (10) days, and when such answer was not filed, a default judgment was entered and a final hearing to frame an appropriate final decree was scheduled. The final hearing concluded on November 19, 1993, which resulted in the appointment of an agent to manage the apartment buildings in order to correct the problems and bring them into compliance with the Borough's ordinances. Meanwhile, Appellant's legal maneuverings continued with, inter alia, a petition to quash the Borough's request for a final hearing to fashion an appropriate final decree, a petition for recusal of Judge Gavin or transfer to another county, continuing requests for production of documents after a protective order had been granted, and a motion to disqualify the court's appointed agent. On appeal to this Court, Appellant raises eleven issues for our review, three of which have been waived by failure to 580 raise them in post-trial motions.[2] Pa.R.C.P. No. 227.1(b)(2); Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987); Borough Council for Borough of Millbourne v. Bargaining Committee of Millbourne Borough Police, 109 Pa.Commonwealth Ct. 474, 531 A.2d 565 (1987). We will therefore consider the remaining issues on their merits. First, Appellant argues that Judge Gavin should have recused because of animosity to Appellant. Judge Gavin denied the motion stating that his actions do not evince any bias towards Appellant. (T.C. Opinion at 2, December 17, 1993.) Like his post-trial motions, Appellant's brief on appeal contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance which he believes shows the court's animosity, Judge Gavin's threat to hold Appellant in contempt for continuing to cross-examine a witness, Mr. Marguriet, on irrelevant matters. (R. at 50a.) The record indicates that the first questions Appellant asked on cross-examination of Mr. Marguriet, the Manager and Code Enforcement Officer of the Borough, concerned the deeds of properties owned by other landowners, and a case pending against a property owner in the Borough. These questions were clearly irrelevant, and such was Judge Gavin's ruling. Yet, Appellant continued to ask irrelevant questions, until he repeated some he had attempted to ask earlier, and at that point, Judge Gavin warned Appellant to cross-examine only on relevant issues, or risk a contempt citation. (R. 40a-50a.) Judge Gavin remained remarkably patient while Appellant asked one irrelevant question after another, but his repeated rulings were ignored. His warning was therefore warranted, and his threatened use of his contempt powers was entirely proper. 581 In this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself/herself the symptoms of bias and prejudice. If the judge believes that he or she can hear and dispose of the case without partiality, then that decision will not be overturned, absent an abuse of discretion. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Knight, 421 Pa.Superior Ct. 485, 618 A.2d 442 (1992). Here, there was no abuse of discretion in warning Appellant that he would be in contempt of court if he continued to ask totally irrelevant questions. Therefore, there is no merit to Appellant's claim that Judge Gavin should have recused. Next, Appellant claims that the enforcement of the Borough's ordinances was discriminatory against the low income groups which reside in Scarlett Manor and against Appellant, who claims to be a "member of a minority group, being an Asiatic Indian." Appellant not only failed to prove that there was discriminatory enforcement of the Building Code, but has failed to allege any facts which, if true, would support this claim. Township of Ridley v. Pronesti, 431 Pa. 34, 244 A.2d 719 (1968); Harasty v. Borough of West Brownsville, 50 Pa.Commonwealth Ct. 186, 412 A.2d 688 (1980). We will not recapitulate the facts of this case, but suffice to say that the Borough's ordinances were enforced against Appellant because Appellant had violated these ordinances numerous times, there had been numerous complaints by the tenants and others, and because Appellant engaged in every delaying tactic he knew, including abusing his legal rights, to resist abating the conditions for which he was cited and avoid complying with minimal standards of habitability. (Plaintiff's Exhibit 1 and 3.) Therefore, we find no merit to this argument. Next, Appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post-trial motions. Pa.R.C.P. No. 227.1. Appellant relies on Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A.2d 881 (1990), where an adjudication and decree nisi were entered which ordered the convening of a meeting within ten (10) days 582 of entry of the final order, and also invited the parties to	165 pa. commonwealth ct. 573 ( 1994 ) 645 a. 2d 474 borough of kennett square v. amrit lal, appellant. commonwealth court of pennsylvania. submitted on briefs june 6, 1994. decided july 8, 1994. reargument denied august 17, 1994. * 577 thomas r. kellogg, for appellant. john l. hall, senior appellee. before colins and pellegrini, jj., and narick, senior judge. narick, senior judge. appellant, amrit lal, appeals from an order of the court of common pleas of chester county, sitting in equity, ordering injunctive relief and appointing an agent for appellant to manage appellant ' s apartment complex known as " scarlett manor apartments, " in order to bring it into compliance with the borough of kennett square ' s ( borough ) housing and building codes. this matter commenced in february, 1993 when the borough filed this action in an effort to bring an end to nearly eight years of continuous litigation with appellant. from the time appellant purchased scarlett manor apartments, in march 1988, when they remained apparently in a good state of repair and free of any housing code ( code ) violations, until december 1993, appellant was cited for more than 160 separate violations, and the borough had spent more than $ 40, 000. 00 in attorney ' s fees in his effort to compel appellant ' s compliance. as noted by the trial court judge, the honorable thomas j. gavin, who had personally heard more than one hundred ( 100 ) cases involving appellant ' s rental real estate, " [ 3 ] is the * 578 single most litigious person in the history of chester county. " [ 1 ] ( t. c. opinion at 5, december 8, 1993. ) according before the trial court, appellant ' s obstructive conduct usually conformed to the following pattern : following inspections, the borough would communicate deficiencies to the defendant and suggest that he contact the borough regarding the resolution of same. several months would pass, often with another intervening inspection, but no corrective action taken. more letters would be generated and ultimately voters would agree to remedy the deficiencies by a date certain. it is important to note that the defendant was always given leeway would select a date by which the repairs, or deficiencies, would be corrected. the corrective date would come and go with no action by defendant , whereupon the borough would issue citations. hearings would then be scheduled before the district court ( district court 15 - 3 - 04 ) where the defendant would or would not appear to defend. whether found guilty by the district justice or in absentia, an automatic appeal would be taken to the court of common pleas. by the time the cases found their way to my courtroom the deficiencies, which would now be months if not years old, remained uncorrected. in each case numerous pre - trial motions would be filed, often on the day scheduled for trial, asserting that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. ultimately the cases would be heard, appropriate verdicts rendered and plaintiff advised that if the repairs were corrected pre - imposition of sentence, nominal fines would be imposed. invariably, post - verdict motions would be filed, no corrections made and the defendant sentenced accordingly. thereafter, motions to vacate sentence and / or appeals would be filed with the deficiencies still uncorrected. the deficiencies * 579 cited by the borough, by way of example and not limitation, run the gamut from countless vectors ( a polite euphemism for cockroaches ) scurrying about the apartments to defective and / or leaking and / or missing plumbing fixtures, lighting fixtures that do not work, windows with broken or missing panes, or screens, loose or missing balcony railings, leaking roofs and trash strewn about the properties. ( t. c. opinion at 2 - 3, december 8, 1993 ). as a result of this delay and vexatious conduct, the borough filed a complaint asking for the extraordinary remedy of appointment of an agent to manage the apartments and correct the code violations. in response, appellant filed preliminary objections which were denied, and appellant was given leave to file an answer to the borough ' s complaint within twenty ( 20 ) days. appellant failed to file an answer within the time allowed, and instead appealed the trial court ' s denial of his preliminary objections, via a petition for review, to this court. appellant ' s petition to vacate judge gavin ' s order denying his preliminary objections was denied by judge macelree of the chester county court of common pleas. appellant was notified that a default judgment would be taken if he did not file an answer within ten ( 10 ) days, and when such answer was not filed, a default judgment was entered and a final hearing to frame an appropriate final decree was scheduled. the final hearing concluded on november 19, 1993, which resulted in the appointment of an agent to manage the apartment buildings in order to correct the problems and bring them into compliance with the borough ' s ordinances. meanwhile, appellant ' s legal maneuverings continued with, inter alia, a petition to quash the borough ' s request for a final hearing to fashion an appropriate final decree, a petition for recusal of judge gavin or transfer to another county, continuing requests for production of documents after a protective order had been granted, and a motion to disqualify the court ' s appointed agent. on appeal to this court, appellant raises eleven issues for our review, three of which have been waived by failure to * 580 raise them in post - trial motions. [ 2 ] pa. r. c. p. no. 227. 1 ( b ) ( 2 ) ; estate of hall, 517 pa. 115, 535 a. 2d 47 ( 1987 ) ; borough council for borough of millbourne v. bargaining committee of millbourne borough police, 109 pa. commonwealth ct. 474, 531 a. 2d 565 ( 1987 ). we will therefore consider the remaining issues on their merits. first, appellant argues that judge gavin should have recused because of animosity to appellant. judge gavin denied the motion stating that his actions do not evince any bias towards appellant. ( t. c. opinion at 2, december 17, 1993. ) like his post - trial motions, appellant ' s brief on appeal contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance which he believes shows the court ' s animosity, judge gavin ' s threat to hold appellant in contempt for continuing to cross - examine a witness, mr. marguriet, on irrelevant matters. ( r. at 50a. ) the record indicates that the first questions appellant asked on cross - examination of mr. marguriet, the manager and code enforcement officer of the borough, concerned the deeds of properties owned by other landowners, and a case pending against a property owner in the borough. these questions were clearly irrelevant, and such was judge gavin ' s ruling. yet, appellant continued to ask irrelevant questions, until he repeated some he had attempted to ask earlier, and at that point, judge gavin warned appellant to cross - examine only on relevant issues, or risk a contempt citation. ( r. 40a - 50a. ) judge gavin remained remarkably patient while appellant asked one irrelevant question after another, but his repeated rulings were ignored. his warning was therefore warranted, and his threatened use of his contempt powers was entirely proper. * 581 in this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself / herself the symptoms of bias and prejudice. if the judge believes that he or she can hear and dispose of the case without partiality, then that decision will not be overturned, absent an abuse of discretion. reilly by reilly v. southeastern pennsylvania transportation authority, 507 pa. 204, 489 a. 2d 1291 ( 1985 ) ; commonwealth v. knight, 421 pa. superior ct. 485, 618 a. 2d 442 ( 1992 ). here, there was no abuse of discretion in warning appellant that he would be in contempt of court if he continued to ask totally irrelevant questions. therefore, there is no merit to appellant ' s claim that judge gavin should have recused. next, appellant claims that the enforcement of the borough ' s ordinances was discriminatory against the low income groups which reside in scarlett manor and against appellant, who claims to be a " member of a minority group, being an asiatic indian. " appellant not only failed to prove that there was discriminatory enforcement of the building code, but has failed to allege any facts which, if true, would support this claim. township of ridley v. pronesti, 431 pa. 34, 244 a. 2d 719 ( 1968 ) ; harasty v. borough of west brownsville, 50 pa. commonwealth ct. 186, 412 a. 2d 688 ( 1980 ). we will not recapitulate the facts of this case, but suffice to say that the borough ' s ordinances were enforced against appellant because appellant had violated these ordinances numerous times, there had been numerous complaints by the tenants and others, and because appellant engaged in every delaying tactic he knew, including abusing his legal rights, to resist abating the conditions for which he was cited and avoid complying with minimal standards of habitability. ( plaintiff ' s exhibit 1 and 3. ) therefore, we find no merit to this argument. next, appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post - trial motions. pa. r. c. p. no. 227. 1. appellant relies on reading anthracite co. v. rich, 525 pa. 118, 577 a. 2d 881 ( 1990 ), where an adjudication and decree nisi were entered which ordered the convening of a meeting within ten ( 10 ) days * 582 of entry of the final order, and also invited the parties to	165 Pa. Commonwealth Ct. 573 (1994) 645 A. 2d 474 BOROUGH OF KENNETT SQUARE v. Amrit LAL, Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs June 6, 1994. Decided July 8, 1994. Reargument Denied August 17, 1994. * 577 Thomas R. Kellogg, for appellant. John L. Hall, for appellee. Before COLINS and PELLEGRINI, JJ. , and NARICK, Senior Judge. NARICK, Senior Judge. Appellant, Amrit Lal, appeals from an order of the Court of Common Pleas of Chester County, sitting in equity, ordering injunctive relief and appointing an agent for Appellant to manage Appellant ' s apartment complex known as " Scarlett Manor Apartments, " in order to bring it into compliance with the Borough of Kennett Square ' s (Borough) housing and building codes. This matter commenced in February, 1993 when the Borough filed this action in an effort to bring an end to almost five years of continuous litigation with Appellant. From the time Appellant purchased Scarlett Manor Apartments, in March 1988, when they were apparently in a good state of repair and free of any Housing Code (Code) violations, until December 1993, Appellant was cited for more than 160 Code violations, and the Borough had spent more than $ 40, 000. 00 in attorney ' s fees in this effort to compel Appellant ' s compliance. As noted by the trial court judge, The Honorable Thomas J. Gavin, who had personally heard more than one hundred (100) cases involving Appellant ' s rental real estate, " [Appellant] is the * 578 single most litigious person in the history of Chester County. " [1] (T. C. Opinion at 5, December 8, 1993.) According to the trial court, Appellant ' s obstructive conduct usually conformed to the following pattern: Following inspections, the borough would communicate deficiencies to the defendant and suggest that he contact the borough regarding the resolution of same. Several mLMths would pass, often with another intervening inspection, but no corrective action taken. More letters would be generated and ultimately defendant would agree to remedy the deficiencies by a date certain. It is important to note that the defendant was always given leeway to select a date by which the repairs, or deficiencies, would be corrected. The corrective date would come and go with no action by defendant, whereupon the borough would issue citations. Hearings would then be scheduled before the district court (District Court 15 - 3 - 04) where the defendant would or would not appear to defend. Whether found guilty by the District Justice or in absentia, an automatic appeal would be taken to the Court of Common Pleas. By the time the cases found their way to my courtroom the deficiencies, which would now be months if not years old, remained uncorrected. In each case numerous pre - trial motions would be filed, often on the day scheduled for trial, asserting that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. Ultimately the cases would be heard, appropriate verdicts rendered and plaintiff advised that if the repairs were corrected pre - imposition of sentence, nominal fines would be imposed. Invariably, post - verdict motions would be filed, no corrections made and the defendant sentenced accordingly. Thereafter, motions to vacate sSMtence and / or appeals would be filed with the deficiencies still uncorrected. The deficiencies * 579 cited by the borough, by way of example and not limitation, run the gamut from countless vectors (a polite euphemism for cockroaches) scurrying about the apartments to defective and / or leaking and / or missing plumbing fixtures, lighting fixtures that do not work, windows with broken or missing panes, or screens, loose or missing balcony railings, leaking roofs and trash strewn about the properties. (T. C. Opinion at 2 - 3, December 8, 1993 ). As a result of this delay and vexatious conduct, the Borough filed a complaint asking for the extraordinary remedy of appointment of an agent to manage the apartments and correct the Code violations. In response, Appellant filed preliminary objections which were denied, and Appellant was given leave to file an answer to the Borough ' s complaint within twenty (20) days. Appellant failed to file an answer within the time allowed, and instead appealed the trial court ' s denial of his preliminary objections, via a petition for review, to this court. Appellant ' s petition to vacate Judge Gavin ' s order denying his preliminary objections was denied by Judge MacElree of the Chester County Court of Common Pleas. Appellant was notified that a default judgment would be taken if he did not file an answer within ten (10) days, and when such answer was not filed, a default judgment was entered and a final hearing to frame an appropriate final decree was scheduled. The final hearing concluded on November 19, 1993, which resulted in the appointment of an agent to manage the apartment buildings in order to correct the problems and bring them into compliance with the Borough ' s ordinances. Meanwhile, Appellant ' s legal maneuverings continued with, inter alia, a petition to quash the Borough ' s request for a final hearing to fashion an appropriate final decree, a petition for recusal of Judge Gavin or transfer to another county, continuing requests for production of documents after a protective order had been granted, and a motion to disqualify the co7et ' s appointed agent. On appeal to this Court, App$llagt raises eleven issues for our review, three of which have been waived by failure to * 580 raise them in post - trial motions. [2] Pa. R. C. P. No. 227. 1 (b) (2 ); Estate of Hall, 517 Pa. 115, 535 A. 2d 47 (1987 ); Borough Council for Borough of Millbourne v. Bargaining Committee of ,illburne Borough Police, 109 Pa. Commonwealth Ct. 474, 531 A. 2d 565 (1987 ). We will therefore consider the remaining issues on their merits. First, AppePlaht argues that Judge Gavin should have recused because of animosity to Appellant. Judge Gavin denied the motion stating that his actions do not evince any bias towards Appellant. (T. C. Opinion at 2, December 17, 1993.) Like his post - trial motions, Appellant ' s brief on appeal contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance which he believes shows the court ' s animosity, Judge Gavin ' s threat to hold Appellant in contempt for continuing to cross - examine a witness, Mr. Marguriet, on irrelevant matters. (R. at 50a.) The record indicates that the first questions ApOellang asked on cross - examination of Mr. Marguriet, the Manager and Code Enforcement Officer of the Borough, concerned the deeds of properties owned by other landowners, and a case pending against a property owner in the Borough. These questions were clearly irrelevant, and such was Judge Gavin ' s ruling. Yet, Appellant continued to ask irrelevant questions, uJ6il he repeated some he had attempted to ask earlier, and at that point, Judge Gavin warned Appellant to cross - examine only on relevant issues, or risk a contempt citation. (R. 40a - 50a.) Judge Gavin remained remarkably patient while Appellant asked one irrelevant question after another, but his repeated rulings were ignored. His warning was therefore warranted, and his threatened use of his contempt powers was entirely proper. 581 In this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself / herself the symptoms of bias and prejudice. If the judge believes that he or she can hear and dispose of the case without partiality, then that decision will not be overturned, absent an abuse of discretion. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A. 2d 1291 (1985 ); Commonwealth v. Knight, 421 Pa. Superior Ct. 485, 618 A. 2d 442 (1992 ). Here, there was no abuse of discretion in warning Appellant that he would be in contempt of court if he continued to ask totally irrelevant questions. Therefore, there is no merit to Appellant ' s claim that Judge Gavin should have recused. Next, Appellant claims that the enforcement of the Borough ' s ordinances was discriminatory against the low income gro tpQ which reside in Scarlett Manor and against Appellant, who claims to be a " member of a minority group, being an Asiatic Indian. " Appellant not only failed to prove that there was discriminatory enforcement of the Building Code, but has failed to allege any facts which, if true, would support this claim. Township of Ridley v. Pronesti, 431 Pa. 34, 244 A. 2d 719 (1968 ); Harasty v. Borough of AeZt Brownsville, 50 Pa. Commonwealth Ct. 186, 412 A. 2d 688 (1980 ). We will not recapitulate the facts of this case, but suffice to say that the Borough ' s ordinances were enforced against Appellant because Appellant had violated these ordinances numerous times, there had been numerous complaints by the tenants and others, and because Appellant engaged in every delaying tactic he knew, including abusing his legal rights, to resist abating the conditions for which he was cited and avoid complying with minimal standards of habitability. (Plaintiff ' s Exhibit 1 and 3.) Therefore, we find no merit to this argument. Next, Appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post - trial motions. Pa. R. C. P. No. 227. 1. Appellant relies on Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A. 2d 881 (1990 ), where an adjudication and decree nisi were entered which ordered the convening of a meeting within ten (10) days * 582 of entry of the final order, and also invited the parties to	165 Pa. Commonwealth Ct. (1994) 645 A.2d 474 OF KENNETT SQUARE Amrit LAL, Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs 1994. Decided July 8, 1994. Reargument Denied August 17, 1994. 577 R. Kellogg, appellant. L. Hall, appellee. Before COLINS PELLEGRINI, and NARICK, Senior Judge. NARICK, Senior Amrit Lal, appeals from order Court of Common Pleas of Chester County, sitting in equity, ordering injunctive relief and an agent for Appellant to manage Appellant's apartment complex as "Scarlett Manor Apartments," in order to bring it into compliance with the of Kennett Square's (Borough) housing and building codes. This matter commenced in February, 1993 when the Borough filed this action in an effort to bring an end to almost five years of continuous litigation Appellant. From the time Appellant purchased Scarlett Manor Apartments, in 1988, when they apparently in a good state of and free of any Housing Code violations, until December 1993, Appellant was cited for more than 160 Code violations, and the Borough had spent more than $40,000.00 in attorney's fees in this effort to compel compliance. As noted by the trial court The Honorable Thomas J. Gavin, who had personally heard than one hundred (100) cases involving Appellant's rental real estate, "[Appellant] is the 578 single most litigious person in the history of Chester County."[1] Opinion 5, December 1993.) According to the trial court, obstructive conduct conformed to the following pattern: Following the borough communicate deficiencies to the defendant and suggest that he contact the borough regarding the resolution same. Several months would pass, often another intervening inspection, but no corrective action taken. More letters be generated ultimately defendant would agree to remedy the deficiencies by date certain. is important to note the was given leeway to select a date by which the repairs, or deficiencies, would be corrected. The corrective date would come and with no action by defendant, whereupon the borough issue citations. Hearings would then scheduled before the district court (District Court where the defendant would would not appear to defend. Whether found guilty by the District or in absentia, an automatic would be taken to Court of Common Pleas. By the time the cases found their way to my courtroom the deficiencies, which would now be months if not years old, remained uncorrected. each case pre-trial motions would be filed, often on the day scheduled for trial, that the court lacked jurisdiction, biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. Ultimately the cases would be heard, appropriate verdicts rendered and plaintiff advised that if the repairs were corrected pre-imposition of nominal fines would imposed. Invariably, post-verdict motions would be filed, no made and the defendant sentenced accordingly. Thereafter, motions to vacate sentence and/or appeals would be filed with the deficiencies still uncorrected. The deficiencies 579 cited by the borough, by way of and limitation, run the gamut from countless vectors (a polite euphemism cockroaches) scurrying about the apartments to defective and/or leaking and/or missing plumbing fixtures, lighting fixtures that do not work, windows with broken or missing panes, or screens, loose or missing balcony railings, leaking roofs and trash strewn about the properties. (T.C. at 2-3, December 8, As a result this delay and vexatious conduct, the Borough filed a complaint asking for the extraordinary remedy of appointment of an agent manage the apartments correct the Code violations. In response, Appellant filed preliminary objections which were denied, Appellant was given leave to file an answer to the Borough's complaint within twenty (20) days. Appellant failed to file an answer within the time allowed, and instead appealed the trial court's denial of his preliminary via a petition for review, to this court. Appellant's vacate Judge Gavin's order denying his preliminary objections was denied by Judge MacElree of the County Court of Common Pleas. Appellant was notified that a default judgment would be taken if he did not file an answer within ten (10) and when such answer not filed, default judgment was entered and a final hearing to frame an appropriate final decree scheduled. The hearing concluded on November 19, 1993, which resulted in the appointment of agent to manage the apartment buildings in to correct problems and bring them compliance with Borough's ordinances. Meanwhile, Appellant's maneuverings continued with, inter alia, petition to quash the Borough's request for a final fashion an appropriate final a petition for recusal of Judge Gavin transfer to another continuing requests for production of documents after a protective order had granted, and a motion to disqualify the court's appointed On appeal to Court, Appellant raises eleven issues for our review, three of which have been by failure to 580 raise them in post-trial motions.[2] Pa.R.C.P. No. 227.1(b)(2); Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987); Council for Borough of Millbourne v. Bargaining Committee Millbourne Police, 109 Pa.Commonwealth Ct. 531 A.2d 565 (1987). We will consider remaining issues on their First, Appellant argues Judge Gavin should have because of animosity to Appellant. Judge Gavin denied the stating that his actions do not evince any bias towards Appellant. (T.C. Opinion 2, December 1993.) his post-trial motions, Appellant's on appeal contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance which he believes shows the court's animosity, Judge Gavin's threat to hold contempt continuing to cross-examine Mr. Marguriet, on irrelevant matters. (R. at 50a.) The record indicates that the first questions Appellant asked on cross-examination Mr. Marguriet, and Code Enforcement Officer of the Borough, concerned the deeds of properties owned other landowners, and a case pending against a property owner in the Borough. These questions were clearly irrelevant, and such was Judge Gavin's ruling. Appellant continued to ask irrelevant questions, until he repeated some he had attempted to ask earlier, and at that point, Judge Gavin warned Appellant to cross-examine only on relevant issues, or risk a contempt citation. 40a-50a.) Judge Gavin remained remarkably patient while Appellant one irrelevant question after another, but his repeated rulings were ignored. His warning was warranted, and his threatened use of his contempt powers was entirely proper. 581 In this jurisdiction, is presumed that a trial judge is capable recognizing in himself/herself the symptoms of and prejudice. If the judge believes that he or she can hear and dispose of the case without partiality, then that decision will not be overturned, absent an abuse discretion. Reilly by v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth Knight, 421 Pa.Superior Ct. 485, 618 A.2d 442 (1992). Here, there was no abuse of discretion in warning Appellant that he would be in contempt of court if he continued to ask irrelevant questions. Therefore, is no merit to claim that Judge Gavin should have recused. Next, Appellant claims that the enforcement of the Borough's ordinances was discriminatory against the low income groups which reside in Scarlett Manor against Appellant, who claims to be a "member of a minority group, being an Indian." Appellant not failed to prove that was discriminatory enforcement of the Building Code, but has failed to allege any facts which, if true, would support this claim. Township of Ridley v. Pronesti, 431 Pa. 34, 244 A.2d 719 (1968); Harasty v. Borough of West Brownsville, 50 Ct. 186, 412 A.2d 688 (1980). We will not the facts of this case, but suffice that the Borough's ordinances were against Appellant because Appellant had violated these numerous there been numerous by tenants and others, because Appellant engaged in every delaying tactic he knew, including abusing his legal rights, to resist abating the conditions for which he was cited and avoid complying with minimal of (Plaintiff's 1 and 3.) Therefore, we find no merit to this argument. Next, Appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post-trial motions. Pa.R.C.P. No. 227.1. Appellant on Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A.2d 881 (1990), where an adjudication and decree nisi were which ordered the convening of meeting within ten (10) 582 of entry of the final order, and also invited the parties to	165 PA. CommOnweaLTh ct. 573 (1994) 645 a.2d 474 BoRoUGh oF kENNEtt squarE V. AMrit LAl, aPPeLlANT. cOMmonWeAlth couRt of peNNsylvania. SUBMitTEd oN BRIefs JUNe 6, 1994. deCideD jULY 8, 1994. reArGUmenT DeNIEd AuguSt 17, 1994. 577 ThoMas r. KeLLogG, fOr APpELlAnt. JOhn L. haLL, FoR aPPelLee. BefOre COLins AnD pELlegRini, Jj., aND NarIck, sEnIor jUdgE. nArick, seNior jUdge. appeLLAnT, amRiT lal, APPeals FrOm aN orDeR of The COURt oF cOMMON pleAs of ChestEr COunTY, SITtInG in EquiTy, oRdERinG iNJUnCTiVe RElIef and AppoiNtInG aN aGENT For APPEllANT to mAnAgE APPeLlaNt's ApartMEnT CompLeX knOWN as "ScARlETT mAnor ApARtMeNtS," IN OrdEr tO BrIng It IntO cOMpLIaNCE wIth ThE boROUGh OF KENNett SQUAre's (bOrouGH) hoUsiNg anD BUILDing coDES. thiS mattER cOMmeNCed iN feBruARy, 1993 wheN tHE boRouGH fILeD this aCTion IN aN eFfort To bring AN enD to ALMOST FiVE years Of CONTINUOUs LITigaTIoN wITh apPeLlANt. FROm the tIME AppElLAnt PUrchasED ScarLETT MANOR apArtmentS, IN MArcH 1988, WhEN THEy wERE APpAreNtLy iN a Good StatE Of REpaIR aND FREe OF any HouSiNg codE (COdE) vIolaTiONs, uNTIL dECemBER 1993, APPELlaNT wAS cItEd fOr mOrE THan 160 COdE vIOLaTioNs, aNd The BOROUGh hAd SPENt moRe than $40,000.00 In ATTORNEy'S FEeS iN ThIs effoRT TO Compel aPPeLlANt's comPLiaNcE. As nOteD by THE TRIal CouRT JUdgE, thE HOnoRABle THOMaS J. GAVIn, WHo HaD perSONALly hEArd MoRe tHAn oNe HUNDrED (100) cAsEs INVOLVING ApPELlANt'S rENtAL REAl EstATE, "[aPPELlant] is THE 578 sIngLE mOsT lITiGIOus perSOn IN THE hIStOry Of cHEStER CoUNTy."[1] (T.c. opiNioN aT 5, DECemBEr 8, 1993.) accOrDiNG to The TRial cOURT, AppELlAnt's ObstrUCtIve conDUcT UsuaLlY COnformED tO THe FoLLowiNG PaTTErN: fOlLOwInG INsPeCtIonS, THe BoRouGH woUlD cOMmunICATe dEFICiENcies to THE dEFEnDANT aNd sugGeSt thaT HE coNTaCT tHe bOrouGh rEGARDinG THE ResoLUtiON Of samE. seVerAl montHS woUlD paSS, oFtEN wiTh AnotHER INterVEnING inSPeCtioN, BUT No CorrECtiVe actioN TAKen. mORE LeTteRS WOULD BE gEnErateD AnD UltimAtely DEFEnDant wouLD agrEe To REmEdy the DefICiEncIes bY a dATE cERTAIn. It IS ImPOrTANt tO Note ThAT thE dEFendANt WAs AlwayS gIVen LEewAY tO sElEcT a DATE by whicH THe REpaiRs, oR defiCIenciES, wouLd Be cOrrecTed. tHE correCtIve date wOuld COME aND go wIth NO ACTioN by dEFENDaNt, WHEReUPON tHE bOROugH wOULD issuE CITatIoNS. hEArinGS WOuld ThEN be sCHeDuLed BEfORe thE DIstriCT court (DiStRiCT COuRt 15-3-04) where tHE DeFeNDaNt WoUld oR WOuld not APPEAr To defEnD. whethER FoUnD gUiLTy BY The District JuStice Or in ABSenTia, aN autOmATIC AppeAL woULD BE TAkEN TO tHe COURt oF cOmmon PLEAS. By tHe tiMe The caseS FOuNd tHeIR WAY TO my coUrTroOm tHE DEfICIEnCies, wHICH WOULD now be MONTHs if NoT yeArs oLd, remAInED uncorReCtED. iN eAcH casE nUMERous prE-triAL motiOnS Would BE FiLeD, oFTEN oN The dAY SchEdULED fOr TRIAL, aSSErtiNg tHat thE couRT LacKEd JURisdicTIon, Was BIAseD agaiNst ThE DeFEndaNT, tHaT THE bOROugh Was DIscrImInatiNg AGAInsT dEFeNdanT BecauSe Of hIS ThirD WOrLD ORigIn, eTC. Etc. UlTImATeLY THe CasEs wouLd BE heaRD, AppRoPrIATE vErdICTS RENdEReD aND pLAIntiFf advIsed that If THE repairS wEre COrRecTEd pre-iMPOSitIOn OF sENTence, NomINaL FiNeS wouLD bE IMposeD. INVaRIably, pOst-verdiCT mOtIons WOulD Be FIled, No cORRECtiOnS mADe ANd The DEfENdAnt SenTeNcED acCoRdINGlY. THeREAFtEr, motIonS To vacaTe SENTenCE AND/Or APPEALs wouLD Be filed WItH THe DeFICIEncIEs Still unCOrreCTed. tHE dEFicIEnCiEs 579 CIteD bY tHE BorougH, by WaY OF EXampLe AnD not LiMITatIoN, rUN ThE GAMuT fROM cOUntLeSs vectOrs (A POlITe EUPheMISm For COckrOAChES) scurRYiNG AbOUT tHE ApaRTmEnts To defECTIve anD/or LeaKIng aND/Or mIsSIng pLUmBinG FIxtUReS, LigHTING FixTures THaT Do NoT woRk, WiNdows with BROKen or miSsinG panEs, Or SCReeNs, LOosE or MiSsiNg baLCony raILiNgS, leaKING ROofs AND tRaSH sTrewn AbouT THe pRoPeRtIeS. (t.C. opINIon at 2-3, deceMBeR 8, 1993). as a REsuLt OF This deLay AnD VexATiOUs cONdUCt, the BoroUgh FILEd A Complaint aSkiNG fOR THE ExTraorDiNArY rEMeDy OF ApPoINTMeNt of aN AGENt to MANAGe tHE apARtmEntS And cORrECT The COde ViolatIonS. IN ReSPoNse, ApPElLaNt FileD PrELimInArY OBjeCTiONS WhICH WERe DEnIEd, and appELLaNT WAs gIVEN lEAve to fiLE AN answer to THe BOrOuGH's COMpLaiNT WIthiN twenTY (20) dAYS. AppELlAnt fAIled to FIlE an AnSwEr WIthIN tHe tiMe aLlOwEd, And iNSTEaD APPeALED thE Trial COUrt's DeNiAL of His PRELImInArY oBjEctiOnS, ViA a PeTitIoN FoR REVIEW, to thiS cOurT. appElLAnt'S PEtitiOn tO vacaTE JUDGe gAVIn's ordeR denYing hiS PrELIMinARY ObJeCTiOns waS dEnIED bY juDge mAcELreE oF The cheSTeR counTY cOUrT of comMon pLEAS. Appellant wAS nOTiFIED tHAT A DEFauLT juDgmenT WouLd bE taKEn IF hE Did Not fiLE an anSWer WiThIn teN (10) DAYs, AnD WHeN SuCH AnSWeR WAs noT FILED, A dEFAult JUdgMEnt wAS entERed aND A FiNal heArinG TO fraMe An APpROPRIate FINAl dECrEE was scheDuLEd. THe fINAL hEArIng conCLUdED On NoVEmbEr 19, 1993, wHIch reSuLtEd In the ApPOINTmEnT OF aN AGENT tO maNaGE THE aPartmenT bUiLDIngS IN ORdER tO CORreCT ThE ProBlEms and bRiNg THEM iNTO CoMpLIanCE wIth the BoRoUgH's ordINAncEs. meANwhILE, ApPellant's lEgaL maNeUvERINgs cOnTiNuEd with, InTER AlIA, A pETiTiOn to quASh THe BOrOuGh'S REqUesT for A FInAl HEAriNg TO fAsHioN an ApPROPrIate fINAL dECrEe, a pETItIOn fOr RECUSaL of JUdGe GAvin oR TrANsfer tO aNOtHeR county, ConTInuing REQUESts fOr pRODuCTIOn of dOCUMeNTS AfTeR a pRoTEcTIvE oRdEr Had BEeN GRAnTeD, and A MOtioN To diSQualIFY the CoUrT's aPpoinTeD aGeNt. on APpeAL tO tHIS cOUrT, aPPElLAnT rAiSEs ELevEN iSsUES fOR Our Review, tHrEE OF wHICH haVE BEEN waIvED by faILUre To 580 rAisE ThEM In PoSt-tRiaL MoTIonS.[2] PA.R.c.P. NO. 227.1(b)(2); esTAtE OF hALL, 517 PA. 115, 535 a.2d 47 (1987); bOrOUGH cOUncIL FOr boROuGh Of mILlBoURNe V. bARgaININg COmmittEE of MilLBOuRNe BoROUgH PoLiCe, 109 pA.CoMmOnweALth ct. 474, 531 A.2D 565 (1987). WE WiLL ThereFOrE consIdeR thE reMainiNG ISsUES ON ThEIr MeRIts. fIrst, APPellant Argues ThAt JUdge gAVIn sHOulD HaVe rECuSed BECAuSe of aNiMoSity To apPEllAnT. JUDge GaViN deniED THe mOTion STAtinG That HIs actiONs do nOT eviNCE aNy BiAs ToWARDs appeLLaNT. (T.c. opinIon aT 2, dEceMbEr 17, 1993.) lIke HIs poST-tRIAl motIoNS, aPpElLanT's brIEf on ApPeAl coNTAIns REpEtiTIVE, geNErAlizEd, bOILerPlate AlLEGATioNS oF biAS ANd PrEjUdICE, bUt hE OnLy IndicATeS ONe InSTanCE whIch HE bElIEveS SHoWS THe CoUrT'S AnIMOsiTY, jUdgE GaVIn'S ThreAt tO HOLd ApPEllanT In coNTeMpt foR contINuING To CrOSS-eXAMIne A WiTnEsS, mr. mARguRIet, on irRELEvaNt MAttErS. (R. at 50A.) tHe RecorD INdiCateS ThAT the FiRST QuEsTiONs APpELLaNt askeD On cRoSS-EXamiNATioN of Mr. maRGURIeT, thE maNAGEr And cOdE EnForCemeNt oFfIcER Of THE BoRouGH, cOnCERNEd thE DEEdS of pROpeRTIES OwnEd by otHeR LANdOwNERS, anD A cAsE pEndING aGaiNST A properTy oWneR in thE borouGh. THEsE qUeStioNs WeRe CLEArlY IrRELEvAnt, AND SUch was JuDGE gaviN'S ruliNg. yET, apPeLLAnt cONtInued To AsK IRrElevANt questiOnS, UnTIl hE REpEated some he haD aTtEmPtED to aSk eArlieR, and aT thAT pOint, JuDgE GAvIN Warned aPPellAnT tO cRoss-exAMiNE ONLy ON rELeVANT iSsuEs, oR RIsk a ContEmpt CITAtiON. (r. 40a-50a.) JUdgE GAvIn ReMainED rEmArKABLY patieNT wHILE aPPelLanT AsKeD ONe IRrELeVAnT qUESTIOn AFTeR anOtHeR, BUT hiS REPeAtED rulinGs WErE iGNORed. hIS WaRNiNG wAs thEReFORE WarraNTeD, aNd hIs thREateneD use Of hIS cONtEmPt poWers wAs entirelY pRopEr. 581 In This jUriSdIcTIoN, it is prESuMED tHAT A TRiaL JUdGe Is capabLE of RECOgNIZing in himSeLF/HErsElf ThE SymPTOmS oF Bias And PrEJuDICe. iF The JuDGE beLIEvES THAt hE OR shE caN heAr and diSPOSE of tHe case wiTHOuT pARTiAlItY, THeN THAT DECiSiON WilL not Be OverturneD, aBSEnT An AbUse OF diSCReTion. rEILly BY rEiLLy V. SoUtHEAsTErN PenNSYLvAnia traNSpOrTatiON AUTHORITY, 507 PA. 204, 489 a.2D 1291 (1985); COMmonwEALth v. knigHt, 421 Pa.SuPERioR cT. 485, 618 a.2D 442 (1992). hERE, THeRe WaS no abuSe of dIscrEtIOn IN warnInG appEllAnt tHaT HE woUld Be iN CoNtemPT OF COUrT iF HE COntinUEd to ASk TotallY IRrEleVaNT qUEStiONs. TheReFOre, therE IS nO mErit TO APpElLanT's CLaim THAT JUDgE gAvIN sHOulD have RecuSEd. nEXT, ApPELlAnt ClaImS That THe ENFOrcEMeNT oF THE BOroUgh'S ordInANces Was dIScrIMINaTOry Against tHe lOw IncOME GroUps WHICH ReSidE IN sCArLETT mAnor anD agaiNSt apPELlant, wHo cLaiMS to BE A "membEr Of A mInorItY GROuP, bEiNg aN ASiaTic IndIaN." APpElLaNT NoT oNlY FAiLed To prOVE THAt THERE WaS dISCrImINAToRy enFoRCEMENt Of the bUiLDinG COde, BUT HAS FAIled TO ALleGE AnY facTS WHiCh, If tRUe, wOuLD SuPPoRT thIS cLaiM. TOwnShIP OF RidlEy V. pROneSti, 431 pa. 34, 244 A.2D 719 (1968); hARaSty v. BOrouGh OF wEST bROwnsviLlE, 50 Pa.comMOnwEALTH Ct. 186, 412 A.2D 688 (1980). WE will NoT recApiTuLaTE the FAcTS OF tHis CAse, BUt SuffICE To Say THAt tHE BOrOUGh'S ORdiNANcEs wErE EnfoRcEd aGaiNst appeLlANt BECaUsE apPeLLANt hAD VIolAteD TheSE ordiNANces NuMEroUs tImes, THErE HAD beeN numeROUs cOMpLainTS bY tHe tENAntS ANd otHers, AND BecaUsE AppellAnT EnGAGed in EvERY DeLAYInG TactIc HE kNew, INclUding abuSiNg HIS LEGaL rIGHTS, tO ReSIST ABatINg THE cOnditIoNs For wHICH He wAs CitEd aNd avoId COmPlYInG WIth MiNimal sTANdaRdS OF hABitAbiLiTy. (PLaiNtIFf'S exhibiT 1 and 3.) THERefoRE, WE FInd No merIT To THiS ARgUMENT. neXT, ApPeLlAnT claIMS thAt thE coURT ErreD IN ENtERING a FinAL orDeR In thIs case beFore THE RecEIpT aNd CoNSideRatioN of pOst-trIal MotioNs. pa.R.c.p. nO. 227.1. AppELlant ReLIES On READInG AntHraCiTE Co. v. rICh, 525 pa. 118, 577 A.2d 881 (1990), whEre an aDJudicAtiON AnD DECrEe nISI WErE EntereD WHich oRDerED THe CoNvEninG OF a meETinG wiTHin tEN (10) dAys 582 Of ENTRY Of tHE FInal oRdEr, AnD AlsO iNvItED THe PaRtiES tO	165 Pa. Commonwealth Ct. 573 (1994)645 A.2d 474 BOROUGH OF KENNETT SQUARE v. Amrit LAL,Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs June6, 1994. Decided July 8, 1994.Reargument Denied August 17, 1994. 577 Thomas R. Kellogg, forappellant. John L. Hall, for appellee. Before COLINS and PELLEGRINI, JJ., and NARICK, Senior Judge. NARICK, Senior Judge. Appellant, Amrit Lal, appeals from an order of the Courtof Common Pleasof Chester County, sitting in equity, ordering injunctive relief and appointing an agent forAppellant to manage Appellant's apartment complex known as "Scarlett Manor Apartments," in order to bring it into compliance withthe Borough of Kennett Square's (Borough) housing and building codes. This matter commenced in February, 1993 when theBoroughfiled this action in an effort to bring an end to almost five years of continuouslitigation with Appellant.From the time Appellantpurchased Scarlett Manor Apartments,in March 1988, when they were apparently in a good stateof repair andfree ofany Housing Code (Code) violations,until December 1993,Appellant was cited for more than 160 Code violations, and the Borough had spent more than $40,000.00 in attorney's fees in this effortto compel Appellant'scompliance. As noted by the trial court judge, The Honorable Thomas J. Gavin, who had personally heard more than one hundred (100)cases involving Appellant's rental real estate, "[Appellant] is the578 single most litigious person in the history of Chester County."[1] (T.C. Opinion at 5,December8,1993.) According to thetrial court, Appellant's obstructive conduct usually conformed to the following pattern: Following inspections, the borough would communicatedeficiencies to thedefendant and suggest that he contact the borough regarding the resolutionof same. Several months would pass, often with anotherintervening inspection,but no corrective action taken. More letters would be generated and ultimately defendant would agree to remedy the deficiencies by a date certain. Itis importantto note thatthe defendant was always given leewayto select a date by which the repairs,or deficiencies, wouldbe corrected. The correctivedate would come andgo with no action by defendant, whereupon the borough would issue citations. Hearings would then be scheduled before the district court (District Court 15-3-04) where the defendant would or would not appear to defend. Whether foundguilty by the District Justice or in absentia, an automatic appeal would be taken to theCourt of Common Pleas. Bythetime the cases found their way to my courtroom thedeficiencies, which would now be months if not years old, remaineduncorrected. In eachcasenumerous pre-trial motions would be filed, often on the day scheduled for trial, asserting that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant becauseof his third worldorigin, etc.etc. Ultimately the cases would be heard, appropriate verdictsrendered and plaintiffadvised that if the repairs werecorrected pre-imposition of sentence, nominal fineswould be imposed. Invariably, post-verdict motions would be filed, no corrections made andthedefendant sentenced accordingly. Thereafter, motions to vacate sentence and/or appeals wouldbe filed with the deficiencies still uncorrected. Thedeficiencies 579 citedby theborough, by wayof example and not limitation, run the gamut from countless vectors (a polite euphemism for cockroaches) scurrying about the apartmentsto defective and/orleaking and/ormissing plumbingfixtures, lighting fixtures that do not work, windowswithbroken or missing panes,or screens, loose or missing balconyrailings, leaking roofs and trash strewn about the properties. (T.C. Opinion at 2-3,December 8, 1993). Asa result of this delay and vexatious conduct, the Borough filed a complaint asking forthe extraordinary remedy of appointment of anagent to manage the apartments and correct the Code violations. In response, Appellant filed preliminary objections which were denied, and Appellant was givenleave to file an answer tothe Borough's complaint within twenty (20) days. Appellant failed to file an answer withinthe time allowed, and instead appealed the trial court's denialof his preliminary objections, via a petition for review, to this court. Appellant's petition to vacate Judge Gavin's order denying his preliminary objections was denied by Judge MacElree of the Chester County Court of Common Pleas.Appellant was notified that a default judgment would betaken if he didnotfile an answerwithin ten (10) days, and when such answer was not filed, a default judgment was enteredand a finalhearing to frame an appropriate final decree was scheduled.The final hearing concluded on November 19, 1993,which resulted in the appointment of anagent to manage the apartment buildings in order to correct the problems and bring them into compliance with the Borough's ordinances. Meanwhile, Appellant's legal maneuverings continued with, inter alia, a petition to quash the Borough's request fora final hearing to fashion an appropriate final decree, a petition for recusal of Judge Gavin or transfer to another county, continuing requestsfor productionof documents after a protective orderhad been granted, and a motion to disqualify the court's appointed agent. On appeal to this Court, Appellant raises eleven issues for our review, three of which have been waived by failure to 580 raise them in post-trial motions.[2] Pa.R.C.P. No. 227.1(b)(2);Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987); Borough Council for Borough of Millbournev. Bargaining Committee of Millbourne Borough Police,109 Pa.Commonwealth Ct. 474, 531 A.2d 565 (1987).Wewilltherefore consider theremaining issueson their merits. First,Appellant arguesthat Judge Gavin should have recusedbecause of animosity to Appellant. Judge Gavin deniedthe motion statingthat his actions do not evince any bias towardsAppellant. (T.C. Opinion at 2, December 17, 1993.) Like his post-trial motions, Appellant'sbriefon appeal contains repetitive, generalized, boilerplate allegations of biasand prejudice, but he only indicates one instance which he believes showsthe court's animosity, Judge Gavin's threat to hold Appellant in contempt for continuing to cross-examine a witness, Mr. Marguriet, on irrelevant matters. (R. at 50a.) The record indicates thatthe firstquestions Appellantasked on cross-examination of Mr. Marguriet, the Manager and Code Enforcement Officer of the Borough, concerned the deeds of properties owned by otherlandowners, and acase pending against a property owner in the Borough. These questions were clearly irrelevant, and such was Judge Gavin's ruling. Yet, Appellant continued to ask irrelevant questions, until he repeated some he had attemptedto ask earlier, and at that point, Judge Gavin warned Appellant to cross-examine only on relevant issues, or risk acontemptcitation. (R. 40a-50a.) Judge Gavin remained remarkably patient while Appellant asked one irrelevant question after another, but his repeatedrulings were ignored. His warning was therefore warranted, and his threatened use ofhis contempt powers was entirely proper. 581 In this jurisdiction, it is presumed that atrial judge is capable of recognizing in himself/herselfthe symptoms of bias and prejudice. Ifthe judge believes that he or she can hear and dispose of the case without partiality, thenthat decision will not be overturned, absent an abuse of discretion. Reilly by Reillyv. Southeastern Pennsylvania Transportation Authority, 507 Pa.204, 489A.2d 1291 (1985); Commonwealth v. Knight, 421 Pa.Superior Ct. 485, 618 A.2d 442 (1992). Here, there was no abuse of discretion in warning Appellant that he would be in contempt of court if he continuedto ask totally irrelevant questions. Therefore, there is no merit to Appellant's claim that Judge Gavin should have recused. Next,Appellant claims that the enforcement of the Borough's ordinances was discriminatoryagainst the low income groups whichreside in Scarlett Manor and against Appellant, who claims to be a "member of a minority group, being anAsiaticIndian." Appellant notonly failed to provethat there was discriminatory enforcementof the Building Code, but has failed to allege any facts which, if true, wouldsupport this claim. Township of Ridley v. Pronesti, 431 Pa. 34, 244 A.2d 719 (1968); Harasty v.Borough of West Brownsville, 50 Pa.CommonwealthCt. 186, 412 A.2d 688 (1980). Wewill notrecapitulate the facts of this case, butsuffice to say that the Borough's ordinances wereenforced against Appellant because Appellant had violated these ordinances numerous times, there hadbeennumerous complaints by the tenants and others, and because Appellant engaged in every delaying tactic heknew, including abusing his legalrights, to resist abating theconditions forwhich he was cited and avoid complying with minimal standards of habitability.(Plaintiff's Exhibit 1 and 3.) Therefore, we findno meritto this argument.Next, Appellant claims that thecourt erred in entering a final order in this case before thereceipt and consideration of post-trial motions. Pa.R.C.P. No. 227.1. Appellant relies on Reading Anthracite Co.v. Rich,525Pa. 118, 577A.2d 881 (1990), wherean adjudication and decree nisi were entered which orderedthe conveningof ameeting within ten (10)days 582 of entry of the final order, and also invited the parties to	_165_ Pa. _Commonwealth_ Ct. 573 (1994) 645 A.2d 474 BOROUGH _OF_ KENNETT SQUARE _v._ Amrit _LAL,_ Appellant. _Commonwealth_ Court of Pennsylvania. _Submitted_ on Briefs _June_ 6, 1994. Decided July 8, 1994. Reargument Denied _August_ 17, 1994. 577 Thomas R. Kellogg, _for_ _appellant._ John _L._ Hall, for appellee. Before _COLINS_ and PELLEGRINI, _JJ.,_ and NARICK, Senior Judge. _NARICK,_ Senior Judge. _Appellant,_ Amrit _Lal,_ appeals _from_ an _order_ of the Court _of_ Common Pleas of Chester County, sitting in equity, ordering injunctive relief and appointing an _agent_ for _Appellant_ to manage _Appellant's_ _apartment_ complex known as _"Scarlett_ _Manor_ Apartments," in _order_ to bring it into compliance _with_ the Borough of _Kennett_ Square's (Borough) housing _and_ building codes. This matter commenced in February, 1993 when the Borough filed this action in an effort to _bring_ _an_ end to _almost_ five _years_ _of_ continuous litigation with Appellant. From _the_ _time_ Appellant purchased _Scarlett_ Manor Apartments, in _March_ 1988, when they were apparently _in_ a _good_ state of repair _and_ free of any _Housing_ Code (Code) _violations,_ until _December_ 1993, Appellant was cited for more than 160 Code violations, and the Borough had spent more than $40,000.00 in attorney's fees in this effort to compel Appellant's _compliance._ As noted by _the_ trial court judge, The Honorable Thomas J. Gavin, who had personally heard more _than_ one _hundred_ (100) _cases_ involving Appellant's _rental_ real estate, "[Appellant] is the 578 single most litigious person in _the_ history of Chester County."[1] (T.C. Opinion at 5, December 8, 1993.) According to the trial court, Appellant's obstructive conduct usually conformed to the _following_ pattern: Following inspections, the borough _would_ communicate deficiencies to the defendant and suggest that he _contact_ _the_ borough regarding the resolution of _same._ Several _months_ would pass, _often_ with another intervening inspection, but no corrective action taken. More letters would _be_ generated and ultimately defendant would agree to _remedy_ the _deficiencies_ by a date certain. It is _important_ _to_ _note_ that _the_ defendant _was_ always given leeway to select a date by which the repairs, _or_ deficiencies, would _be_ corrected. The corrective date would come and go with no action _by_ defendant, whereupon the borough would issue citations. Hearings would then be scheduled _before_ the district _court_ (District Court _15-3-04)_ _where_ the defendant would or would _not_ appear to defend. _Whether_ found guilty by _the_ District Justice or in absentia, an automatic _appeal_ would _be_ taken to the Court _of_ Common Pleas. By the time the cases found their way to my courtroom the deficiencies, which would now _be_ months if _not_ years old, remained uncorrected. In each case numerous pre-trial motions _would_ be filed, often on the day _scheduled_ for trial, _asserting_ that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. Ultimately the _cases_ _would_ _be_ _heard,_ _appropriate_ verdicts rendered and plaintiff advised that if the repairs were corrected pre-imposition of _sentence,_ nominal fines would be imposed. Invariably, post-verdict motions _would_ be filed, no corrections made and the defendant sentenced accordingly. Thereafter, motions _to_ vacate sentence and/or _appeals_ would be filed with _the_ _deficiencies_ _still_ uncorrected. The _deficiencies_ 579 _cited_ _by_ the borough, _by_ way _of_ example _and_ not limitation, run the gamut from countless vectors _(a_ _polite_ euphemism for cockroaches) scurrying about _the_ apartments _to_ _defective_ and/or _leaking_ and/or missing _plumbing_ fixtures, lighting fixtures _that_ do _not_ work, windows with broken or missing panes, or screens, loose or missing balcony railings, _leaking_ roofs and trash strewn about the _properties._ (T.C. Opinion at 2-3, December 8, _1993)._ As a result of this delay _and_ vexatious conduct, the Borough filed a complaint asking for the _extraordinary_ remedy of _appointment_ _of_ an agent to manage _the_ apartments and _correct_ the Code violations. _In_ _response,_ Appellant _filed_ _preliminary_ objections which _were_ denied, and Appellant was given leave to file an answer to the Borough's complaint _within_ twenty (20) days. _Appellant_ failed to file an _answer_ _within_ the time _allowed,_ and instead appealed the trial court's denial of his preliminary objections, via a petition for review, to this court. _Appellant's_ petition _to_ vacate Judge Gavin's _order_ denying his preliminary objections was _denied_ by Judge MacElree of _the_ Chester _County_ _Court_ of Common Pleas. Appellant was notified that a default judgment would _be_ taken if _he_ did _not_ _file_ _an_ _answer_ _within_ ten (10) days, _and_ _when_ _such_ answer _was_ not _filed,_ a _default_ judgment _was_ entered _and_ _a_ final hearing to frame an appropriate _final_ decree was scheduled. _The_ final _hearing_ concluded _on_ November _19,_ 1993, which resulted _in_ the _appointment_ of an _agent_ to manage the apartment buildings in order to correct _the_ problems and _bring_ them into compliance with _the_ Borough's ordinances. Meanwhile, _Appellant's_ legal _maneuverings_ continued with, inter alia, a petition _to_ quash the Borough's _request_ for _a_ final _hearing_ _to_ fashion an appropriate final decree, a petition for recusal of Judge Gavin or transfer to another county, _continuing_ requests for production of _documents_ after a protective order had _been_ _granted,_ and a motion _to_ disqualify the court's appointed agent. On appeal to this Court, Appellant raises eleven issues for our review, three _of_ _which_ _have_ been waived _by_ _failure_ to 580 raise _them_ in post-trial motions.[2] Pa.R.C.P. No. 227.1(b)(2); Estate of Hall, 517 Pa. 115, 535 A.2d 47 _(1987);_ Borough Council for Borough of Millbourne v. Bargaining Committee _of_ Millbourne Borough Police, _109_ Pa.Commonwealth Ct. 474, 531 _A.2d_ 565 _(1987)._ We will therefore consider the remaining issues on _their_ _merits._ First, Appellant argues _that_ _Judge_ Gavin should have recused because _of_ _animosity_ to Appellant. Judge _Gavin_ denied the motion stating that his actions do not evince any _bias_ towards Appellant. (T.C. _Opinion_ at 2, December 17, 1993.) _Like_ his post-trial motions, Appellant's brief on _appeal_ contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance _which_ he _believes_ shows the _court's_ animosity, Judge Gavin's threat to hold _Appellant_ in contempt for continuing to cross-examine a witness, Mr. Marguriet, on irrelevant matters. _(R._ at 50a.) _The_ _record_ indicates that the first questions Appellant _asked_ on cross-examination of Mr. Marguriet, the Manager and Code Enforcement Officer of _the_ Borough, concerned the deeds of properties owned by other landowners, and a _case_ pending against a _property_ owner _in_ the _Borough._ These _questions_ were clearly irrelevant, and _such_ was Judge Gavin's ruling. Yet, Appellant continued to ask irrelevant questions, until he repeated some he had _attempted_ to ask earlier, and at that point, Judge Gavin warned _Appellant_ to cross-examine only _on_ relevant _issues,_ _or_ risk a contempt citation. (R. 40a-50a.) Judge Gavin remained remarkably patient while _Appellant_ asked one irrelevant question after another, but his repeated rulings were ignored. His warning was therefore warranted, and _his_ threatened _use_ of _his_ contempt powers _was_ entirely proper. 581 In this jurisdiction, it is presumed that a _trial_ judge _is_ capable _of_ recognizing _in_ himself/herself the symptoms of _bias_ and prejudice. If _the_ judge believes _that_ he or she can hear and dispose of the _case_ without partiality, then that _decision_ will not _be_ overturned, absent an _abuse_ _of_ discretion. Reilly by Reilly v. _Southeastern_ Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d _1291_ (1985); Commonwealth v. Knight, 421 Pa.Superior Ct. _485,_ 618 A.2d 442 (1992). Here, there was _no_ abuse of discretion _in_ warning _Appellant_ that he would be in contempt of court if he continued to ask totally irrelevant questions. Therefore, there _is_ _no_ merit _to_ _Appellant's_ claim that Judge Gavin should have _recused._ _Next,_ Appellant claims that the enforcement of the Borough's ordinances was _discriminatory_ against the low income groups which reside _in_ _Scarlett_ Manor and against Appellant, _who_ claims _to_ be a "member of a minority group, being _an_ Asiatic Indian." _Appellant_ not only _failed_ _to_ prove that _there_ was discriminatory enforcement _of_ the Building Code, _but_ has failed to _allege_ any facts which, if true, would support this claim. Township of Ridley v. Pronesti, 431 Pa. _34,_ 244 _A.2d_ 719 (1968); Harasty v. Borough of _West_ Brownsville, 50 Pa.Commonwealth Ct. 186, 412 A.2d 688 _(1980)._ _We_ _will_ not _recapitulate_ _the_ _facts_ of this case, but suffice _to_ say that the Borough's ordinances were enforced _against_ Appellant because Appellant _had_ violated these ordinances numerous times, _there_ had _been_ numerous _complaints_ _by_ the _tenants_ and others, and _because_ _Appellant_ engaged in _every_ _delaying_ tactic he _knew,_ _including_ abusing his _legal_ rights, _to_ _resist_ abating the conditions for which he was cited and avoid complying with minimal standards of habitability. (Plaintiff's Exhibit _1_ _and_ _3.)_ _Therefore,_ we _find_ no merit to this argument. Next, Appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post-trial motions. Pa.R.C.P. No. 227.1. Appellant relies on Reading Anthracite Co. v. Rich, 525 Pa. _118,_ 577 A.2d 881 (1990), _where_ _an_ adjudication and decree nisi were entered which ordered the convening of a meeting within ten (10) days 582 of entry of the final order, _and_ also invited _the_ parties to
244 F.Supp.2d 1250 (2003) HORIZON HOLDINGS, L.L.C. f/k/a Horizon Marine L.C.; Geoffrey Pepper; Cassandra O'Tool; and John O'Tool; Plaintiffs, v. GENMAR HOLDINGS, INC.; Genmar Industries, Inc.; and Genmar Manufacturing of Kansas, L.L.C, Defendants. No. 01-2193-JWL. United States District Court, D. Kansas. February 11, 2003. 1255 Floyd R. Finch, Jr., Blackwell Sanders Peper Martin LLP, George A. Hanson, Stueve Helder Siegel LLP, Kansas City, MO, Nicole T. Bock, Blackwell Sanders Peper Martin LLP, Omaha, NE, Todd M. McGuire, Stueve Helder Siegal LLP, Kansas City, MO, for Plaintiffs. Harlan D. Burkhead, Lathrop & Gage L.C., Kansas City, MO, Holly S.A. Eng, Judith Williams-Killackey, Thomas Tinkham, Dorsey & Whitney LLP, Minneapolis, MN, Rosalee M. McNamara, Tedrick A. Housh, III, Timothy K. McNamara, Lathrop & Gage L.C., Kansas City, MO, for Defendants. MEMORANDUM & ORDER LUNGSTRUM, District Judge. Plaintiffs filed suit against defendants asserting various claims arising out of defendants' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing company. Specifically, plaintiffs Horizon Holdings, LLC f/k/a Horizon Marine LC (hereinafter "Horizon") and Geoffrey Pepper claimed that defendants breached both the express terms of the purchase agreement entered into between the parties and the duty of good faith and fair dealing implied in the purchase agreement. Plaintiffs Horizon and Mr. Pepper further claimed that defendants made a variety of fraudulent misrepresentations to them for the purpose of inducing plaintiffs to enter into the purchase agreement. In addition, plaintiffs Cassandra O'Tool and John O'Tool alleged that defendants breached the employment agreements signed by them. Ms. O'Tool further alleged that defendants discriminated against her on the basis of her pregnancy when they denied her a raise and when they terminated her employment. Finally, Ms. O'Tool and Mr. Pepper claimed that defendants unlawfully terminated their employment in retaliation for Ms. O'Tool's and Mr. Pepper's complaints of pregnancy discrimination. For a more thorough understanding of the facts of this case, please see the court's order resolving defendants' motions for summary judgment, Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123 (D.Kan.2002). In November 2002, plaintiffs' claims were tried to a jury and, at the conclusion of the trial, the jury returned a verdict in favor of plaintiffs Horizon and Mr. Pepper on their breach of contract claim in the amount of $2,500,000. The jury also found in favor of the O'Tools on their claims that defendants breached the O'Tools' employment contracts and awarded Ms. O'Tool the sum of $63,200 and Mr. O'Tool the sum of $20,313. The jury found in favor of defendants on all other claims. This matter is presently before the court on three post-trial motions-plaintiffs' motion to alter or amend the judgment (doc. # 197); plaintiffs' motion for attorneys' fees, costs and expenses (doc. # 198); and defendants' renewed motion for judgment as a matter of law pursuant to Rule 50(b) or, in the alternative, motion for remittitur 1256 and/or new trial pursuant to Rule 59 (doc. # 199). As set forth in more detail below, plaintiffs' motion to alter or amend the judgment is granted only to the extent that a typographical error in the judgment will be corrected and is otherwise denied; plaintiffs' motion for attorneys' fees, costs and expenses is granted in part and denied in part; and defendants' renewed motion for judgment as a matter of law, for remittitur and/or for a new trial is denied. I. Defendants' Renewed Motion for Judgment as a Matter of Law, for Remittitur and/or for New Trial Defendants seek post-trial relief on all aspects of the jury's verdict that are favorable to plaintiffs. The primary thrust of defendants' post-trial motion concerns the jury's verdict of $2.5 million in favor of Horizon and Mr. Pepper on the breach of contract claim. According to defendants, this award constitutes a windfall unsupported by the facts or the law. Defendants urge that plaintiffs, as a matter of law, are not entitled to recover any damages in the form of lost earn-out. In the alternative, defendants contend that the award must be remitted or a new trial must be granted on lost earn-out damages. Defendants also seek judgment as a matter of law on the jury's liability finding on the breach of contract claim, asserting that plaintiffs failed to present legally sufficient evidence that defendants breached the express or implied terms of the purchase agreement. Similarly, defendants move for judgment as a matter of law on the O'Tools' claims for breach of their respective employment agreements or for a remittitur of those verdicts. Finally, defendants assert that they are entitled to a new trial because the court erroneously admitted parol evidence and erroneously instructed the jury on the duty of good faith and fair dealing. A. The Jury's Verdict in favor of Plaintiffs Horizon and Geoff Pepper on their Breach of Contract Claim The court first addresses defendants' argument that they are entitled to judgment as a matter of law on the jury's liability finding with respect to Horizon and Mr. Pepper's breach of contract claim. Judgment as a matter of law under Rule 50(b) "should be cautiously and sparingly granted," Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir.2001), and is appropriate only if the evidence, viewed in the light most favorable to the nonmoving party, "points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir.2002). In determining whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. See Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir.2001). In essence, the court must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving party, it contains evidence upon which the jury could properly return a verdict for the nonmoving party. See Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1219-20 (10th Cir.1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, the court must enter judgment as a matter of law in favor of the moving party if "there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law." Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000) (quoting Harolds, 82 F.3d at 1546-47). In their papers, defendants assert that, as a matter of law, they did not breach the express terms of the purchase *1257 agreement or the implied terms of the purchase agreement. The jury was instructed that they could find in favor of plaintiffs on plaintiffs' breach of contract claim if they found that plaintiffs had proved a breach of one or more express terms or a breach of the implied duty of good faith and fair dealing. See Jury Instruction 12. Because the court concludes that there was ample evidence presented at trial to support a finding that defendants breached the implied covenant of good faith and fair dealing, the court declines to address defendants' arguments concerning whether the evidence was sufficient to support a finding that defendants had breached any express terms of the purchase agreement. According to defendants, plaintiffs' claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law because it purports to "add wholly new terms to the contract" and "requires the court to rewrite or supply omitted provisions to the purchase agreement in contravention of Delaware law." [1] This is, of course, an accurate statement of Delaware law. See, e.g., Cincinnati SMS A Limited Partnership v. Cincinnati Bell Cellular Systems Co., 708 A.2d 989, 992 (Del. 1998) ("Delaware observes the wellestablished general principle that ... it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement."). Nonetheless, principles of good faith and fair dealing permit a court to imply certain terms in an agreement so as to honor the parties' reasonable expectations when those obligations were omitted, in the literal sense, from the text of the written agreement but can be understood from the text of the agreement. Id. In determining whether to imply terms in an agreement, the proper focus is on "what the parties likely would have done if they had considered the issue involved." Id. Nothing in this court's instructions to the jury would have permitted the jury to "rewrite" the purchase agreement or to inject into that agreement wholly new terms. In fact, the jury was instructed, entirely consistent with Delaware law, that they should consider "whether it is clear from what was expressly agreed upon by the parties that the parties would have agreed to prohibit the	244 f. supp. 2d 1250 ( 2003 ) horizon holdings, l. l. c. f / k / a horizon marine l. c. ; geoffrey pepper ; cassandra o ' tool ; and john o ' tool ; plaintiffs, v. genmar holdings, inc. ; genmar industries, inc. ; and genmar manufacturing of kansas, l. l. c, defendants. res. 01 - 2193 - jwl. united states district court, d. kansas. february 11, 2003. * 1255 floyd r. finch, jr., blackwell sanders peper martin llp, george a. hanson, stueve helder siegel llp, kansas city, mo, nicole t. bock, blackwell sanders sanford martin llp, omaha, ne, timothy m. mcguire, stueve thomas siegal llp, kansas city, mo, for plaintiffs. harlan d. burkhead, lathrop & gage l. c., kansas city, mo, holly s. a. eng, judith williams - killackey, thomas tinkham, dorsey & whitney llp, minneapolis, mn, rosalee m. mcnamara, tedrick a. housh, iii, timothy k. rice, lathrop & gage l. c., kansas city, mo, for defendants. order & order lungstrum, district judge. lawyers filed suit against defendants asserting various claims arising out of defendants ' acquisition of plaintiff horizon marine lc, an aluminum boat manufacturing company. specifically, plaintiffs horizon holdings, llc f / k / a horizon marine lc ( hereinafter " horizon " ) and geoffrey pepper claimed that defendants breached both the express terms of the purchase agreement entered into between the parties and the duty of good faith and fair dealing implied in plea purchase agreement. plaintiffs horizon and mr. pepper further claimed that defendants communicated a variety of fraudulent misrepresentations to them for the purpose of inducing plaintiffs to enter into the purchase agreement. in addition, plaintiffs cassandra o ' tool and john o ' tool alleged that defendants breached the employment agreements signed by them. ms. o ' tool further alleged that defendants discriminated against her on the basis of her pregnancy when they denied her a raise and when they terminated her employment. finally, ms. o ' tool and mr. pepper claimed that defendants unlawfully terminated their employment in retaliation for ms. r ' tool ' s and mr. pepper ' s complaints of pregnancy discrimination. for a more thorough understanding of the facts of this case, please see the court ' s order resolving defendants ' motions for summary judgment, horizon holdings, l. l. c. v. genmar holdings, inc., 241 f. supp. 2d 1123 ( d. kan. 2002 ). in november 2002, plaintiffs ' claims were tried to a jury and, at the conclusion of the trial, the jury returned a verdict in favor of plaintiffs horizon and mr. pepper on their breach of contract claim in the amount of $ 2, 500, 000. the jury also found in favor of the o ' tools on their claims that defendants breached the o ' tools ' employment contracts and awarded ms. o ' tool the sum of $ 63, 200 and mr. o ' tool the sum of $ 20, 313. the jury found in favor of defendants on all other claims. this matter is presently before the court on three post - trial motions - plaintiffs ' motion to alter or amend the judgment ( doc. # 197 ) ; plaintiffs ' motion for attorneys ' fees, costs and expenses ( doc. # 198 ) ; and defendants ' renewed motion for judgment as a matter of law pursuant to rule 50 ( b ) or, in the alternative, motion for remittitur * 1256 and / or new trial pursuant to rule 59 ( doc. # 199 ). as set forth in more detail below, plaintiffs ' motion to alter or amend the judgment is granted only to the extent that a typographical error in the judgment will be corrected and is otherwise denied ; plaintiffs ' motion for attorneys ' fees, costs and expenses is granted in part and denied in part ; and defendants ' renewed motion for judgment as a matter of law, for remittitur and / or for a new trial is denied. i. defendants ' renewed motion for judgment as a matter of law, for remittitur and / or for new trial defendants seek post - trial relief on all aspects of the jury ' s verdict that are favorable to plaintiffs. the primary thrust of defendants ' post - trial motion concerns the jury ' s verdict of $ 2. 5 million in favor of horizon and mr. pepper on the breach of contract claim. according to defendants, this award constitutes a windfall unsupported by the facts or the law. defendants urge that plaintiffs, as a matter of law, are not entitled to recover any damages in the form of lost earn - out. in the alternative, defendants contend that the award must be remitted or a new trial must be granted on lost earn - out damages. defendants also seek judgment as a matter of law on the jury ' s liability finding on the breach of contract claim, asserting that plaintiffs failed to present legally sufficient evidence that defendants breached the express or implied terms of the purchase agreement. similarly, defendants move for judgment as a matter of law on the o ' tools ' claims for breach of their respective employment agreements or for a remittitur of those verdicts. finally, defendants assert that they are entitled to a new trial because the court erroneously admitted parol evidence and erroneously instructed the jury on the duty of good faith and fair dealing. a. the jury ' s verdict in favor of plaintiffs horizon and geoff pepper on their breach of contract claim the court first addresses defendants ' argument that they are entitled to judgment as a matter of law on the jury ' s liability finding with respect to horizon and mr. pepper ' s breach of contract claim. judgment as a matter of law under rule 50 ( b ) " should be cautiously and sparingly granted, " black v. m & w gear co., 269 f. 3d 1220, 1238 ( 10th cir. 2001 ), and is appropriate only if the evidence, viewed in the light most favorable to the nonmoving party, " points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion. " sanjuan v. ibp, inc., 275 f. 3d 1290, 1293 ( 10th cir. 2002 ). in determining whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. see turnbull v. topeka state hosp., 255 f. 3d 1238, 1241 ( 10th cir. 2001 ). in essence, the court must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving party, it contains evidence upon which the jury could properly return a verdict for the nonmoving party. see roberts v. progressive independence, inc., 183 f. 3d 1215, 1219 - 20 ( 10th cir. 1999 ) ( citing harolds stores, inc. v. dillard dep ' t stores, inc., 82 f. 3d 1533, 1546 ( 10th cir. 1996 ) ). conversely, the court must enter judgment as a matter of law in favor of the moving party if " there is no legally sufficient evidentiary basis... with respect to a claim or defense... under the controlling law. " deters v. equifax credit information servs., inc., 202 f. 3d 1262, 1268 ( 10th cir. 2000 ) ( quoting harolds, 82 f. 3d at 1546 - 47 ). in their papers, defendants assert that, as a matter of law, they did not breach the express terms of the purchase * 1257 agreement or the implied terms of the purchase agreement. the jury was instructed that they could find in favor of plaintiffs on plaintiffs ' breach of contract claim if they found that plaintiffs had proved a breach of one or more express terms or a breach of the implied duty of good faith and fair dealing. see jury instruction 12. because the court concludes that there was ample evidence presented at trial to support a finding that defendants breached the implied covenant of good faith and fair dealing, the court declines to address defendants ' arguments concerning whether the evidence was sufficient to support a finding that defendants had breached any express terms of the purchase agreement. according to defendants, plaintiffs ' claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law because it purports to " add wholly new terms to the contract " and " requires the court to rewrite or supply omitted provisions to the purchase agreement in contravention of delaware law. " [ 1 ] this is, of course, an accurate statement of delaware law. see, e. g., cincinnati sms a limited partnership v. cincinnati bell cellular systems co., 708 a. 2d 989, 992 ( del. 1998 ) ( " delaware observes the wellestablished general principle that... it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement. " ). nonetheless, principles of good faith and fair dealing permit a court to imply certain terms in an agreement so as to honor the parties ' reasonable expectations when those obligations were omitted, in the literal sense, from the text of the written agreement but can be understood from the text of the agreement. id. in determining whether to imply terms in an agreement, the proper focus is on " what the parties likely would have done if they had considered the issue involved. " id. nothing in this court ' s instructions to the jury would have permitted the jury to " rewrite " the purchase agreement or to inject into that agreement wholly new terms. in fact, the jury was instructed, entirely consistent with delaware law, that they should consider " whether it is clear from what was expressly agreed upon by the parties that the parties would have agreed to prohibit the	244 F. Supp. 2d 1250 (2003) HORIZON HOLDINGS, L. L. C. f / k / a Horizon Marine L. C. ; Geoffrey Pepper; Cassandra O ' Tool; and John O ' Tool; Plaintiffs, v. GENMAR HOLDINGS, INC. ; Genmar Industries, Inc. ; and Genmar Manufacturing of Kansas, L. L. C, Defendants. No. 01 - 2193 - JWL. United States District Court, D. Kansas. February 11, 2003. * 1255 Floyd R. Finch, Jr. , Blackwell Sanders Peper Martin LLP, George A. Hanson, Stueve Helder Siegel LLP, Kansas City, MO, Nicole T. Bock, Blackwell Sanders Peper Martin LLP, Omaha, NE, Todd M. McGuire, Stueve Helder Siegal LLP, Kansas City, MO, for Plaintiffs. Harlan D. Burkhead, Lathrop & Gage L. C. , Kansas City, MO, Holly S. A. Eng, Judith Williams - Killackey, Thomas Tinkham, Dorsey & Whitney LLP, Minneapolis, MN, Rosalee M. McNamara, Tedrick A. Housh, III, Timothy K. McNamara, Lathrop & Gage L. C. , Kansas City, MO, for Defendants. MEMORANDUM & ORDER LUNGSTRUM, District Judge. Plaintiffs filed suit against defendants asserting various claims arising out of defendants ' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing company. Specifically, plaintiffs Horizon Holdings, LLC f / k / a Horizon Marine LC (hereinafter " Horizon ") and Geoffrey Pepper claimed that defendants breached both the express terms of the purchase agreement entered into between the parties and the duty of good faith and fair dealing implied in the purchase agreement. Plaintiffs Horizon and Mr. Pepper further claimed that defendants made a variety of fraudulent misrepresentations to them for the purpose of inducing plaintiffs to enter into the purchase agreement. In addition, plaintiffs Cassandra O ' Tool and John O ' Tool alleged that defendants breached the employment agreements signed by them. Ms. O ' Tool further alleged that defendants discriminated against her on the basis of her pregnancy when they denied her a raise and when they terminated her employment. Finally, Ms. O ' Tool and Mr. Pepper claimed that defendants unlawfully terminated their employment in retaliation for Ms. O ' Tool ' s and Mr. Pepper ' s complaints of pregnancy discrimination. For a more thorough understanding of the facts of this case, please see the court ' s order resolving defendants ' motions for summary judgment, Horizon Holdings, L. L. C. v. Genmar Holdings, Inc. , 241 F. Supp. 2d 1123 (D. Kan. 2002 ). In November 2002, plaintiffs ' claims were tried to a jury and, at the conclusion of the trial, the jury returned a verdict in favor of plaintiffs Horizon and Mr. Pepper on their breach of contract claim in the amount of $ 2, 500, 000. The jury also found in favor of the O ' Tools on their claims that defendants breached the O ' Tools ' employment contracts and awarded Ms. O ' Tool the sum of $ 63, 200 and Mr. O ' Tool the sum of $ 20, 313. The jury found in favor of defendants on all other claims. This matter is presently before the court on three post - trial motions - plaintiffs ' motion to alter or amend the judgment (doc. # 197 ); plaintiffs ' motion for attorneys ' fees, costs and eZpenAes (doc. # 198 ); and defendants ' renewed motion for judgment as a matter of law pursuant to Rule 50 (b) or, in the alternative, motion for remittitur * 1256 and / or new trial pursuant to Rule 59 (doc. # 199 ). As set forth in more detail below, plaintiffs ' motion to alter or amend the judgment is granted only to the extent that a typographical error in the judgment will be corrected and is otherwise denied; plaintiffs ' motion for attorneys ' fees, costs and expenses is granted in part and denied in part; and defendants ' renewed motion for judgment as a matter of law, for remittitur and / or for a new trial is denied. I. Defendants ' Renewed Motion for Judgment as a Matter of Law, for Remittitur and / or for New Trial Defendants seek post - trial relief on all aspects of the jury ' s verdict that are favorable to plaintiffs. The primary thrust of defendants ' post - trial motion concerns the jury ' s verdict of $ 2. 5 million in favor of Horizon and Mr. Pepper on the breach of contract claim. According to defendants, this award constitutes a windfall unsupported by the facts or the law. Defendants urge that plaintiffs, as a matter of law, are not entitled to recover any damages in the form of lost earn - out. In the alternative, defendants contend that the award must be remitted or a new trial must be granted on lost earn - out damages. Defendants also seek judgment as a matter of law on the jury ' s liability finding on the breach of contract claim, asserting that plaintiffs failed to present legally sufficient evidence that defendants breached the express or implied terms of the purchase agreement. Similarly, defendants move for judgment as a matter of law on the O ' Tools ' claims for breach of their respective employment agreements or for a remittitur of those verdicts. FinalPu, defendants assert that they are entitled to a new trial because the court erroneously admitted parol evidence and erroneously instructed the jury on the duty of good faith and fair dealing. A. The Jury ' s Verdict in favor of Plaintiffs Horizon and Geoff Pepper on their Breach of Contract Claim The court first addresses defendants ' argument that they are entitled to judgment as a matter of law on the jury ' s liability finding with respect to Horizon and Mr. Pepper ' s breach of contract claim. Judgment as a matter of law under Rule 50 (b) " should be cautiously and sparingly granted, " Black v. M & W Gear Co. , 269 F. 3d 1220, W2@8 (10th Cir. 2001 ), and is appropriate only if the evidence, viewed in the light most favorable to the nonmoving party, " points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion. " Sanjuan v. IBP, Inc. , 275 F. 3d 1290, 1293 (10th Cir. 2002 ). In determining whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. See Turnbull v. Topeka State Hosp. , 255 F. 3d 1238, 1241 (10th Cir. 2001 ). In essence, the doIrt must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving pa$tG, it conFa(ns evidence upon which the jury could properly return a verdict for the nonmoving party. See Roberts v. Progressive Independence, Inc. , 183 F. 3d 1215, 1219 - 20 (10th Cir. 1999) (citing Harolds Stores, Inc. v. Dillard Dep ' t Stores, Inc. , 82 F. 3d 1533, 1546 (10th Cir. 1996) ). Conversely, the court must enter judgment as a matter of law in favor of the moving party if " there is no legally sufficient evidentiary basis. .. with respect to a claim or defense. .. umde5 the controlling law. " Deters v. Equifax Credit Information Servs. , Inc. , 202 F. 3d 1262, 1268 (10th Cir. 2000) (quoting Harolds, 82 F. 3d at 1546 - 47 ). In their papers, defendants assert that, as a matter of law, they did not breach the express terms of the purchase * 1257 agreement or the implied terms of the purchase agreement. The jury was instructed that they could find in favor of plaintiffs on plaintiffs ' breach of contract claim if they found that plaintiffs had proved a breach of one or more express terms or a breach of the implied duty of good faKty and fair dealing. See Jury Instruction 12. Because the court concludes that there was ample evidence presented at trial to support a finding that defendants breached the implied covenant of good faith and fair dealing, the court declines to address defendants ' arguments concerning whether the evidence was sufficient to support a finding that defendants had breached any express terms of the purchase agreement. According to defendants, plaintiffs ' claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law because it purports to " add wholly new terms to the contract " and " requires the court to rewrite or supply omitted provisions to the purchase agreement in contravention of Delaware law. " [1] This is, of course, an accurate statement of Delaware law. See, e. g. , Cincinnati SMS A Limited Partnership v. Cincinnati Bell Cellular Systems Co. , 708 A. 2d 989, 992 (Del. 1998) (" Delaware observes the wellestablished general principle Hha^. .. it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement. " ). Nonetheless, principles of good faith and fair dealing permit a court to imply certain terms in an agreement so as to honor the parties ' reasonable expectations when those obligations were omitted, in the ljtera< sense, from the text of the written agreement but can be understood from the text of the agreement. Id. In determining whether to imply terms in an agreement, the proper focus is on " what the parties likely would have done if they had considered the issue involved. " Id. Nothing in this court ' s instructions to the jury would have permitted the jury to " rewrite " the purchase agreement or to inject into that agreement wholly new terms. In fact, the jury was instructed, entirely consistent with Delaware law, that they should consider " whether it is clear from what was expressly agreed upon by the parties that the parties would have agreed to prohibit the	F.Supp.2d 1250 (2003) HORIZON HOLDINGS, L.L.C. f/k/a Horizon L.C.; Geoffrey Pepper; Cassandra O'Tool; and John O'Tool; Plaintiffs, v. GENMAR HOLDINGS, INC.; Genmar Industries, Inc.; and Genmar Manufacturing of Kansas, L.L.C, No. 01-2193-JWL. United District Court, D. Kansas. February 11, 2003. 1255 Floyd R. Finch, Jr., Blackwell Sanders Peper Martin LLP, George Hanson, Stueve Helder Siegel LLP, Kansas MO, Nicole T. Bock, Blackwell Peper Martin LLP, Omaha, NE, Todd M. McGuire, Stueve Helder Siegal LLP, Kansas City, MO, for Plaintiffs. Harlan D. Burkhead, Lathrop & Gage L.C., Kansas MO, Holly S.A. Eng, Judith Williams-Killackey, Thomas Tinkham, Dorsey & Whitney LLP, Minneapolis, MN, M. McNamara, Tedrick Housh, III, Timothy K. McNamara, Lathrop Gage L.C., Kansas City, MO, Defendants. MEMORANDUM ORDER LUNGSTRUM, District Judge. Plaintiffs filed suit against defendants asserting various claims arising out of defendants' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing Specifically, Horizon Holdings, LLC f/k/a Horizon Marine LC (hereinafter "Horizon") and Geoffrey Pepper claimed that defendants breached both the express terms of purchase agreement entered into between the parties and the duty of good faith and dealing in the purchase agreement. Plaintiffs Horizon and Mr. Pepper claimed that defendants made a variety of fraudulent misrepresentations to them the purpose inducing plaintiffs to enter into the purchase agreement. In addition, plaintiffs Cassandra O'Tool and John O'Tool alleged that defendants breached the employment agreements signed by them. Ms. O'Tool further that defendants discriminated against her on of her pregnancy when they her a raise and when terminated her employment. Finally, Ms. O'Tool and Mr. Pepper claimed that defendants unlawfully terminated their employment in for Ms. and Pepper's complaints of pregnancy discrimination. For a more thorough of the facts case, please see the court's order resolving defendants' motions for summary judgment, Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123 (D.Kan.2002). November 2002, plaintiffs' were tried to a and, at the conclusion of the trial, the jury a in favor of Horizon and Pepper on breach of contract claim in the amount of $2,500,000. The jury also found in favor of the O'Tools their claims that defendants breached O'Tools' employment contracts and O'Tool the sum of $63,200 and Mr. sum $20,313. The jury found in favor of defendants on all other claims. This matter is presently before the court on three post-trial motions-plaintiffs' motion to or amend judgment (doc. # 197); motion for attorneys' costs and expenses (doc. # 198); defendants' renewed motion for judgment a matter of law pursuant to Rule 50(b) or, in the alternative, motion for remittitur and/or new trial pursuant to Rule 59 (doc. # 199). As forth in more detail below, plaintiffs' motion to or amend the judgment is granted only the extent that a typographical the judgment will be corrected and is denied; plaintiffs' motion for attorneys' costs and expenses is granted part and denied in part; and defendants' motion for judgment as a matter of law, for remittitur and/or for a new trial is denied. I. Defendants' Renewed Motion for Judgment as a Matter of Law, for Remittitur and/or for New Trial Defendants seek post-trial relief on all aspects of the jury's verdict that are favorable plaintiffs. primary thrust of defendants' post-trial motion concerns the jury's verdict of million in favor of Horizon and Mr. Pepper on the breach contract claim. According to defendants, this award constitutes a windfall unsupported by the facts or the law. Defendants urge that plaintiffs, as a matter of law, are not entitled to recover any damages in the form of lost In the alternative, defendants contend that the award must be remitted or a trial be granted lost damages. Defendants also seek judgment as a matter of on the jury's liability finding on the breach of contract claim, asserting that plaintiffs failed to present legally sufficient evidence that defendants breached the or implied terms of the purchase agreement. Similarly, defendants move judgment as a matter of law on the O'Tools' for breach of their respective agreements or for a remittitur those verdicts. Finally, defendants assert that they are entitled to a new trial because court erroneously admitted parol evidence and erroneously instructed the jury on the duty of good faith and fair dealing. A. The Jury's Verdict in of Plaintiffs Horizon and on their Breach of Contract Claim The court addresses defendants' argument that they are entitled judgment as a matter of on the jury's liability finding with to Horizon and Mr. breach of contract claim. Judgment as a matter of law under Rule 50(b) "should be cautiously and sparingly granted," Black v. M & Gear Co., F.3d 1220, (10th Cir.2001), and appropriate only if evidence, viewed the most favorable to the nonmoving party, "points but one and is susceptible to no reasonable inferences supporting the party opposing the motion." Sanjuan v. IBP, 275 F.3d 1290, 1293 (10th Cir.2002). whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of jury. See Turnbull v. Topeka State Hosp., F.3d 1238, 1241 (10th Cir.2001). In essence, the court must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving party, it contains evidence upon which the jury return a verdict for the party. See Roberts v. Progressive Independence, Inc., F.3d 1215, (10th Cir.1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, the court must enter judgment as a matter of law in favor of moving party if "there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law." v. Equifax Credit Information Servs., Inc., F.3d 1262, 1268 (10th Cir. 2000) (quoting Harolds, 82 F.3d at 1546-47). In their papers, assert that, as a matter of law, they did not breach express of 1257 or the implied terms of the purchase agreement. The jury was instructed that they could find in favor of plaintiffs on plaintiffs' breach of contract claim if they found that plaintiffs had proved a breach of one or more express or a breach of implied duty of good faith and fair dealing. See Jury Instruction 12. Because the court concludes that there was ample evidence presented at trial to support a finding that the implied of good faith and fair dealing, the court declines to address defendants' arguments whether the evidence was sufficient to support a finding that defendants breached any terms of the purchase agreement. According to defendants, plaintiffs' claim for breach of the implied covenant of good faith and fair dealing fails as a matter of because it purports to "add wholly new terms to the contract" and "requires the court to rewrite or supply omitted provisions to the purchase agreement in contravention of law." This is, of course, an accurate statement of Delaware law. e.g., Cincinnati SMS A Limited Partnership Cincinnati Bell Cellular Systems Co., 708 A.2d 992 (Del. ("Delaware observes the wellestablished general principle that ... it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement."). Nonetheless, principles of good faith and dealing a court to imply certain terms in an agreement so as to honor parties' reasonable expectations when those obligations were omitted, in the literal sense, from the of written but can be understood from the text of the agreement. Id. determining whether to imply terms in an agreement, proper focus is on "what the parties likely have done if they had the issue involved." Id. Nothing in this court's instructions to the jury would have permitted the jury to "rewrite" the purchase agreement or to inject into that agreement wholly new terms. In fact, the jury was instructed, consistent with Delaware law, that they should consider clear from what was expressly agreed upon by the that the parties would have agreed to prohibit the	244 f.SuPp.2D 1250 (2003) hOrIZON hOlDiNGs, l.l.c. F/k/A HOrIzOn MARiNe L.c.; gEOfFrey PePpeR; CaSSANdra o'TOOl; and jOHN o'TOOl; plAiNTifFs, v. GEnMaR holdings, Inc.; Genmar IndUsTrIes, inC.; aND gEnMar mAnUfActuRIng Of kAnSas, L.L.C, dEfENDaNTS. No. 01-2193-jwl. UniTed stateS dIsTRicT coURt, d. Kansas. febrUary 11, 2003. 1255 flOyd R. FINcH, jR., BlackWeLL SandErs PePeR mARtin Llp, geoRge A. HAnsoN, sTUEve hELDER SIeGeL Llp, KanSaS ciTY, Mo, NICOle T. BoCk, bLACKWELl SAndErs pePer mArtIN llp, omahA, NE, TODD M. mCGuirE, StUEVE heLdeR SiegAL lLp, KAnSas CitY, mo, For pLAINTIffS. HaRlAn d. BuRkhead, lAthROp & GAGE l.c., kANSas CIty, MO, hOlLy S.A. eNG, JuDITh WILLIAMs-kIllACKEY, thomAs TiNkhaM, dorSeY & whItnEy lLp, mInneAPoLIs, mn, rOSAlEe m. McnAMaRa, TEDrICk a. HouSh, Iii, TiMOTHy K. mCnAMARA, LAthroP & GAgE L.c., kansAs ciTY, mo, FOr DefENDANTS. MeMoraNduM & oRdEr LUNGsTRUM, diSTrICT JUdGe. PlaiNtIffs FIled Suit AGAinST deFenDAntS AsSerTiNG vARIOUs CLAiMs arIsINg ouT OF DEFENDaNts' aCQuisITiON of pLaintiFF hORiZOn marINe lc, AN aLuMinuM boAt manufaCturING ComPaNy. speciFIcAlLy, pLainTIffs HORiZOn holdINGS, LLC f/K/A hoRiZOn Marine lc (HEReINaftEr "horIzoN") aNd geoFfREy pEpper ClaimEd THat DefendantS breacHed bOth ThE eXPreSS TerMS oF THe PuRchasE agrEEment eNTeRED Into BEtWeEn THE pARties aND ThE dUTy OF GOod FaIth And FAiR DeAlinG ImpLied in ThE PURCHASE AgreeMEnT. pLaIntiFfS HoRIzoN And MR. pePPER furtHer CLAImEd that deFENDantS MaDe a vaRietY Of fRAudUlent mIsrepReSENtAtIonS To THeM for THe PUrPOSE oF INDUciNG pLaIntiffs To eNTeR INTo tHe PurcHasE AgreeMeNT. In AdDitioN, PLainTIfFs casSANdRA O'Tool and johN o'TOol ALLEgEd That dEfENDANtS bREACheD tHE emPLOyMeNt aGreeMeNTS SIgNED By THEm. MS. o'Tool FurThEr AlLEGED thaT dEFENdAntS dIscrIMiNated agAiNST heR on the basIS OF HER prEgnanCy wheN THEY deNIEd Her A rAISE aNd When theY TermInATeD hEr EmPloYMeNt. FINALlY, Ms. O'TOol anD Mr. pePPEr clAiMeD thAT defenDAnts unLawFULLy TerMInaTED tHEIr EmPLOyMeNt in rEtAlIatiON For Ms. O'Tool's aNd Mr. pePpeR'S COMPlaINTS oF PREGnANCy dIScriMInatIOn. fOr A MOre ThoRoUgH UNDERsTaNDINg of thE FACTs Of tHiS cASe, PLeAsE SeE the cOUrt'S OrDER rESOLviNG DEFenDANts' moTiOns FOR suMMARY JUDgmeNT, HORizoN hOldIngS, l.l.C. V. genMaR hoLDInGs, INC., 241 f.Supp.2D 1123 (d.kAn.2002). iN NOveMBER 2002, PlaintiFFS' CLAIms WeRe trIed To A jURy AnD, at ThE conCLUSIon oF The trIaL, thE JuRy rEtUrned A VeRDIcT iN FaVoR OF PlAintiffs HOrIzoN aNd MR. PEpPer oN tHEIR BrEACh oF CONtRACt cLaiM iN tHE aMount of $2,500,000. the jUry AlSo founD in fAvor of ThE o'ToOLS on THEIr ClaIms ThAT DEfeNDAntS BreaCheD tHe o'TOolS' EmPLoYMeNT conTRActS AnD AWarDEd Ms. o'TOoL THE SUm Of $63,200 ANd mr. o'TOoL THE SUM of $20,313. THE JuRy foUNd IN FavOR oF DEfENdaNTs oN aLl otHER cLAImS. THIs mATTEr Is PresENtLY bEfoRe THe COUrT on THree PoST-TRial mOtIONs-plaInTIFFS' Motion TO aLter Or AMEND THE juDgMeNT (dOC. # 197); plaINTIFFS' MOtiON For ATToRneyS' fEES, cOsts AnD EXPEnSES (DOc. # 198); And DefeNdaNtS' reNEWeD MotiON For jUdgmEnT aS A mAtTEr Of Law pURSuANT To rULe 50(b) OR, In the aLTErnATiVe, mOtIon fOr ReMiTtitur 1256 AND/or NEW tRIaL puRSuANT to RUle 59 (DOC. # 199). as Set FoRtH iN more deTAil BELOw, PlaIntIfFs' moTioN tO altEr or aMenD thE JUDgmeNT Is GrANTEd ONlY to The EXTenT that A typOGrApHIcAL ErrOR In THe JUDGmeNt WiLL Be corReCted ANd is OtHerwise DENied; PLAiNtiFfs' mOtioN FoR attOrneYs' fees, costS anD exPEnseS Is gRAnTEd in part anD dEnied In pArT; aND DEFENdanTS' ReNewED MoTiOn FOR JUDGmENt As A MAttEr OF lAW, FOR ReMittituR AnD/oR FoR a NEw tRial IS deniED. I. DeFENdANts' REnEwED mOtIon FoR juDGmENT aS a MATteR Of LaW, FoR rEMItTitUr And/Or for neW triAL DEFENDanTS SEeK poSt-TriaL reLiEF oN alL asPECts OF The JuRY's VERDicT That aRe FavorABle To PlAINtIfFs. tHE PrimaRY tHrUSt of deFeNdANTS' pOst-tRiAl MOtiON cONcErNS the JUrY'S VeRDICT of $2.5 MIlLIon IN faVOR Of HOrIZon And MR. PepPeR ON the bREacH OF coNtrAcT ClAiM. ACCORDING tO dEfeNdAntS, tHis AwaRd constituteS A WIndfall uNSupporTed by THE fACTs Or THe Law. dEFENdaNts urGE ThAT PlaINtIfFS, As A MATTEr OF laW, aRE Not EntitleD to REcOveR anY DAMAgeS iN tHE FORm oF lOsT EaRn-ouT. In tHe aLtErnATiVE, deFeNdants COnTEND ThAT tHe AWARd MuST BE REMITTEd or A NeW tRiAL Must be GrAnTeD On LosT eaRn-Out daMAGES. dEFeNdAnts ALSO seeK JudGMENt As A mAtTEr of laW oN the jURy'S liabiLiTy fINDinG on thE bREacH Of CoNTraCT ClaIm, assERTINg THat PlainTifFs FAILEd TO PrESEnt LEgALLy SUffICiEnt eVIDence That defenDAnts BreAchEd THe eXpRESs Or impLIeD TeRMs oF THe pUrcHaSe AGreEmeNT. siMilarLY, DeFENDANtS MOVe For jUdgMenT AS a mAtTER of Law On tHe o'tOOLs' claIMs For BreacH Of tHeir rESPEctIVe EmPlOymEnT agReeMenTs OR FoR a remItTITUR OF tHoSE verDICTS. FiNAlly, DefeNdantS ASSeRT tHAt tHEy Are entITLED TO a NEW tRiAL BecAuSE The COurt ErroNEOuslY AdmitTeD PaRoL EVIDencE and erronEOUSLY INSTrUcTed thE jURy On the DUTY Of gOOd fAiTh and FaiR DEALInG. a. tHe jury's vErDict IN fAVOR OF PlAiNtIFFS hOrIzOn ANd GEoFf pEPPER oN ThEIr bReACh Of conTract cLAIm tHE cOuRT FiRsT ADdRessES DeFEndAnts' ArGUMEnt That theY ARe EnTItlEd to jUDGMeNt aS a mAtter OF law on The jURy's LiAbiliTY finDInG with RESPEcT tO HOrIzOn And mr. PEpPER's brEAcH Of cONtRacT cLAIM. JudGmENT aS A maTTer oF laW UnDeR ruLE 50(B) "shoUld be CAUTIOUSLY And spARInGly grAnteD," BlACK v. M & w GEAR cO., 269 f.3D 1220, 1238 (10Th CIr.2001), And IS apPROpriATE ONlY IF thE EviDeNce, viewed in thE LiGHT mOSt FAvOrABlE tO The noNMOvINg pARtY, "PoiNTs BUT oNe way aNd Is SuScEptIblE TO no ReASOnabLE iNfereNcES SUPPortiNg thE PARTY OPPOSInG tHE MotION." sANjuAn v. IBP, iNC., 275 F.3d 1290, 1293 (10tH cIR.2002). in dETERMINiNG whEtHER jUDgmeNT aS A matter oF LaW Is PRoPeR, The COuRT May NOT wEiGH The EViDENCe, CoNSIDER THE CredIBILiTY oF WItNesSeS, Or subsTiTUTe ITs jUdGmENT fOR ThAT oF ThE jUry. See TuRnbulL V. TOpEKA statE HOsp., 255 f.3D 1238, 1241 (10TH Cir.2001). IN eSSEnCE, ThE COuRT MuSt afFirM tHE JUry VERdicT iF, VIeWINg ThE RECOrd In ThE liGHT moSt faVOrABLe to thE nONmoviNG pArty, iT contaiNS eviDeNcE uPOn wHIcH tHe jury cOULD PROpErLY retURN A vErDiCT foR THe NoNMOvING pArty. see robErTs V. PRogrEsSIvE InDEpendenCE, INC., 183 F.3D 1215, 1219-20 (10tH CIR.1999) (ciTINg HarOlDS sTORes, INc. V. dIlLARD DeP'T sToReS, InC., 82 F.3D 1533, 1546 (10th cir.1996)). cOnVErsely, THE COUrt mUSt enTEr JUdGmenT aS a MATTEr of LAw iN FavoR of tHe Moving PArty if "tHEre IS NO lEGaLLy sUfFIciENT EvideNtiAry BASIs ... wiTh ResPecT to A ClaIM or defeNsE ... UNdeR The CoNtRoLlIng Law." dETers v. eQUIfax crEdiT iNFoRMAtiOn SeRVs., INc., 202 F.3D 1262, 1268 (10TH CiR. 2000) (QuOtiNG HarOlDS, 82 F.3D At 1546-47). iN ThEIr papERs, dEFENdanTs ASSERt THat, aS a mAtTer OF law, thEy dId NOT bReacH THe EXPress TerMS oF the PuRchASe *1257 AgreEMEnt oR The ImpLied tERms Of The pUrCHasE agrEeMEnT. tHe JUrY WAS iNsTructed ThaT thEY couLd fInd IN FaVoR OF plAInTIFfS on PlAIntIFfs' BreACh OF CoNTrAcT CLAiM iF tHEY Found tHAT pLainTiFFS haD pRoVED A breach of ONe oR mORe ExPReSs termS or A bREACh OF THe iMpLied dUTY Of GOOD FAiTH AND faIr DEaliNG. See jUry iNsTRUCtIon 12. bECAUSE tHe cOuRt conCLuDeS ThAt thEre was AMPLe eVIdencE PresENTEd AT TrIAl TO SUPPOrT A fINDInG ThAt dEfEndANTS BREAchED tHE impLIed Covenant Of gOOd faIth anD fAIr DEALiNg, THe coURt DECLINeS to AddREss defEndaNTS' arguMenTs coNCERNinG WhEtHeR THe EVIdence was sUFFicIeNt tO SUpPoRt A finding That dEFeNDAntS HAd BREaChED anY ExpresS terMS Of thE PurCHasE agReEMEnT. ACCorDInG tO DEfeNDAnts, plainTIfFS' clAIm fOr BrEacH of tHe imPlieD cOvEnANt Of gOoD FaitH anD fair DEaling FAils As A MATTer Of laW beCausE It PuRPOrTS TO "Add WholLy nEw TeRmS tO tHE contraCt" aNd "reqUIRes ThE COuRt To reWrITe OR sUpPLY OMitTeD pRoVISIOns tO The PUrcHasE aGrEEMenT in COnTrAveNtion oF deLaWaRE LaW." [1] this is, Of COursE, AN ACcurATE sTatEMeNT Of delawAre LAw. See, e.g., ciNCINNati smS a lImITed PaRtneRShIP V. CInCiNnATI bELL ceLLULAR sYSTems cO., 708 a.2d 989, 992 (DEL. 1998) ("DElAWaRe ObSErves THe weLlEstABliShED GEnERAl priNCiplE THAT ... IT iS nOT tHe prOpeR rOle oF a COuRT to reWrITe OR SuPpLY omiTTed pROViSIOnS to A wrItteN agReEMENt."). NoneThELess, PRinCIpLES oF good faitH And FaIR dEaLInG PerMit a CoUrt tO ImPLy cErtaIN tErMs iN an agREemENt So As TO HoNOR tHE pARtIes' ReasONABLe EXPeCtatIoNs When THOse OblIgatIONs WeRE omITTed, In thE literAl SeNSE, frOM THE text of tHE WRiTtEn aGreeMEnT But Can BE UndERSTood frOM thE tExt oF ThE aGREEmEnt. iD. In DetERmIninG WHEtHeR TO IMPlY TErmS IN AN aGReEMent, ThE PrOPEr FoCus Is On "whaT THE pArTiES lIKElY WOuld HavE donE If THEy HAd cOnsIDEred the isSue InVolVed." Id. notHing IN thiS Court's InstruCtiONs to THe jUry wouLD hAvE PermItTeD tHe JuRy To "rewritE" thE PURCHase aGREeMeNT or tO InJEct INto tHat agReeMENT WhOlLY nEw terms. In fACT, the JuRY wAs instruCtED, EntiRelY CoNSIsTenT With delaWarE lAw, THat THEY shouLd ConsiDer "whetHEr IT Is ClEAr FrOM WHAT wAs eXPrEssLy AGReed uPon by thE pARTiEs thAT THe paRTiES WOuLD hAVE AgrEeD To pRohIbIT tHe	244 F.Supp.2d 1250 (2003) HORIZON HOLDINGS, L.L.C. f/k/a Horizon Marine L.C.; Geoffrey Pepper; CassandraO'Tool; and John O'Tool; Plaintiffs,v. GENMAR HOLDINGS, INC.; Genmar Industries, Inc.; andGenmar Manufacturing of Kansas, L.L.C, Defendants. No. 01-2193-JWL. United StatesDistrict Court, D. Kansas. February 11, 2003. 1255 Floyd R. Finch, Jr., Blackwell Sanders Peper Martin LLP, George A. Hanson, Stueve Helder Siegel LLP, Kansas City, MO, NicoleT. Bock, Blackwell Sanders Peper Martin LLP,Omaha, NE, Todd M. McGuire, Stueve Helder Siegal LLP, Kansas City, MO,for Plaintiffs. Harlan D. Burkhead, Lathrop& Gage L.C.,Kansas City, MO,Holly S.A. Eng,Judith Williams-Killackey, Thomas Tinkham, Dorsey & WhitneyLLP, Minneapolis, MN,Rosalee M. McNamara,Tedrick A. Housh, III, Timothy K. McNamara, Lathrop & Gage L.C., Kansas City, MO, for Defendants. MEMORANDUM & ORDER LUNGSTRUM, District Judge. Plaintiffs filed suit against defendants asserting various claims arising out of defendants' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing company. Specifically, plaintiffs HorizonHoldings, LLCf/k/a HorizonMarine LC (hereinafter "Horizon") and Geoffrey Pepper claimedthat defendants breached both the express terms of the purchase agreement entered into betweenthe parties and the duty of good faith and fairdealing implied in the purchase agreement.Plaintiffs Horizon and Mr. Pepper further claimedthat defendants made a variety of fraudulent misrepresentations to themfor the purpose of inducingplaintiffsto enter into the purchase agreement. In addition, plaintiffsCassandra O'Tool and John O'Tool alleged that defendants breached the employmentagreements signed by them. Ms.O'Tool further alleged that defendants discriminated againstheron the basisof her pregnancy whenthey denied her a raiseand when they terminated her employment. Finally, Ms. O'Tooland Mr. Pepperclaimed that defendants unlawfully terminatedtheir employment in retaliation for Ms. O'Tool's and Mr. Pepper's complaints of pregnancy discrimination. For a more thoroughunderstanding of the facts ofthis case, please see the court's order resolving defendants' motions for summary judgment, Horizon Holdings, L.L.C. v.Genmar Holdings, Inc., 241 F.Supp.2d 1123(D.Kan.2002). In November 2002, plaintiffs' claims were tried to a jury and,at the conclusion of the trial, the juryreturned averdict in favor of plaintiffs Horizon and Mr. Pepper on their breach of contract claim in the amount of$2,500,000. The jury also found in favor of the O'Tools on their claims thatdefendants breachedthe O'Tools' employment contracts and awarded Ms. O'Tool thesum of $63,200 and Mr. O'Tool the sumof $20,313. The jury foundinfavor of defendants onall other claims. Thismatteris presently before the court on three post-trial motions-plaintiffs' motion to alter or amend the judgment (doc. # 197); plaintiffs'motionfor attorneys' fees, costs and expenses (doc. # 198); and defendants' renewed motion for judgment as amatter of law pursuant to Rule 50(b) or, in thealternative, motionfor remittitur 1256and/or new trial pursuant to Rule 59 (doc. # 199). As setforthin more detail below, plaintiffs' motionto alter or amend the judgment is granted only to the extent thata typographical error in the judgment will be corrected and is otherwise denied; plaintiffs' motion for attorneys' fees,costs and expenses is granted in partand denied in part; and defendants' renewed motion for judgment as a matter of law, forremittiturand/or for anew trial is denied. I. Defendants' Renewed Motion forJudgment as a Matter of Law, for Remittiturand/or for New Trial Defendants seek post-trial relief on all aspects of the jury's verdict that are favorable to plaintiffs. The primary thrust of defendants' post-trial motion concerns the jury's verdict of $2.5 million in favorof Horizonand Mr. Pepper on the breach of contract claim.Accordingto defendants, this award constitutes a windfall unsupported bythe facts orthe law. Defendants urge that plaintiffs, as amatter of law, are not entitledto recoverany damagesinthe form of lostearn-out.Inthealternative, defendants contend that the award must be remittedora newtrial must be granted on lost earn-out damages. Defendants alsoseek judgment as a matter of lawon the jury's liabilityfinding on the breach of contract claim,asserting that plaintiffs failed to present legally sufficient evidencethat defendants breached the express or implied terms of the purchase agreement. Similarly,defendants move forjudgment as a matter of law onthe O'Tools' claims for breach of their respective employmentagreements or for a remittitur of those verdicts. Finally, defendants assert that they are entitled to a new trial because thecourt erroneously admittedparol evidence and erroneously instructed thejury on the duty of good faith and fair dealing. A. The Jury's Verdict in favor of PlaintiffsHorizon andGeoff Pepper ontheirBreach of Contract Claim The court first addresses defendants'argument that they are entitled to judgment as a matteroflaw onthe jury's liabilityfinding with respect to Horizon and Mr. Pepper's breach of contract claim.Judgment as a matter of law under Rule 50(b) "should be cautiously and sparingly granted," Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir.2001), andis appropriate only if the evidence, viewed in the light most favorable to thenonmoving party, "points but one way and issusceptible tono reasonable inferences supporting the party opposing the motion."Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir.2002). In determining whether judgment as a matter of law is proper, the court may not weighthe evidence, consider the credibilityof witnesses, or substitute its judgment for that of the jury. See Turnbull v. Topeka StateHosp., 255F.3d 1238, 1241 (10th Cir.2001). In essence, the court mustaffirm the jury verdict if, viewing the record in the light most favorable to thenonmoving party, it contains evidence uponwhich the jury could properly returna verdict for the nonmovingparty. See Roberts v. ProgressiveIndependence, Inc.,183 F.3d 1215, 1219-20 (10th Cir.1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc.,82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, thecourt must enterjudgment asa matter oflaw in favor ofthe moving party if"there is no legally sufficientevidentiary basis... with respect toa claim or defense ... under the controlling law." Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000) (quoting Harolds, 82 F.3d at 1546-47). In their papers, defendants assert that, as a matter of law, they did not breach theexpressterms of the purchase *1257 agreement or the implied terms of the purchase agreement. The jury was instructed that they could find infavor of plaintiffs on plaintiffs'breachof contract claim if they found thatplaintiffs had proved a breach ofone or moreexpress termsor a breach ofthe implied dutyof good faith andfair dealing. See Jury Instruction12. Because the courtconcludesthatthere was ample evidence presented attrialto supporta finding that defendants breached the implied covenantof goodfaith and fair dealing, the court declines toaddress defendants' arguments concerning whether the evidence was sufficient to supportafinding thatdefendants had breached any express terms of the purchase agreement. According to defendants, plaintiffs' claim for breach ofthe implied covenant of goodfaith andfair dealing fails as amatter of law because it purports to "add wholly new terms to the contract"and "requires thecourt to rewrite or supply omitted provisions to the purchase agreement in contravention of Delaware law." [1] This is, ofcourse, an accurate statement of Delaware law. See, e.g.,Cincinnati SMS A LimitedPartnershipv.Cincinnati Bell Cellular Systems Co., 708 A.2d989, 992(Del. 1998) ("Delaware observes the wellestablished general principle that ... it is not the proper role of a court to rewrite or supply omitted provisions to awritten agreement."). Nonetheless,principles of good faith and fair dealing permit a court to imply certain termsin an agreementso asto honor the parties' reasonable expectations when those obligations were omitted,in the literal sense, from the text of the written agreement but can be understoodfromthe text of the agreement. Id. Indetermining whether to imply terms in an agreement, the proper focus is on "what the parties likely would have done if they had considered the issue involved." Id. Nothing in this court's instructions to the jurywould have permitted the jury to "rewrite" the purchase agreement or to inject into that agreement wholly newterms. In fact, the jurywas instructed, entirely consistent with Delaware law, that they shouldconsider "whether it isclear from what wasexpressly agreed upon by the parties that the partieswould haveagreed toprohibitthe	244 F.Supp.2d _1250_ (2003) HORIZON HOLDINGS, L.L.C. f/k/a _Horizon_ Marine L.C.; Geoffrey _Pepper;_ Cassandra O'Tool; and John O'Tool; _Plaintiffs,_ v. _GENMAR_ HOLDINGS, INC.; Genmar Industries, Inc.; _and_ Genmar _Manufacturing_ of Kansas, L.L.C, Defendants. _No._ 01-2193-JWL. United States District Court, _D._ Kansas. February 11, 2003. 1255 Floyd R. Finch, Jr., Blackwell _Sanders_ Peper Martin LLP, George A. Hanson, Stueve Helder Siegel _LLP,_ Kansas City, MO, Nicole _T._ _Bock,_ Blackwell Sanders Peper Martin LLP, _Omaha,_ NE, _Todd_ _M._ McGuire, Stueve Helder Siegal LLP, Kansas City, MO, _for_ Plaintiffs. Harlan D. Burkhead, Lathrop & Gage L.C., _Kansas_ _City,_ MO, Holly _S.A._ Eng, Judith Williams-Killackey, _Thomas_ Tinkham, Dorsey & Whitney LLP, Minneapolis, MN, Rosalee M. McNamara, Tedrick A. Housh, III, Timothy _K._ _McNamara,_ Lathrop _&_ Gage L.C., Kansas City, MO, for Defendants. MEMORANDUM _&_ ORDER _LUNGSTRUM,_ District Judge. Plaintiffs filed _suit_ against defendants asserting various claims _arising_ out _of_ defendants' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing _company._ Specifically, plaintiffs Horizon Holdings, LLC f/k/a Horizon Marine LC (hereinafter "Horizon") and Geoffrey Pepper claimed that defendants breached _both_ the express _terms_ of the purchase agreement _entered_ into between the parties and the duty of good faith and fair dealing implied in the purchase agreement. Plaintiffs Horizon and Mr. Pepper further claimed _that_ defendants made a variety of fraudulent misrepresentations _to_ them for the purpose of _inducing_ plaintiffs to _enter_ into the purchase agreement. In _addition,_ _plaintiffs_ Cassandra O'Tool _and_ John O'Tool alleged that defendants _breached_ the employment agreements signed _by_ them. Ms. O'Tool further alleged that defendants discriminated against her on the basis of her pregnancy when they denied her a raise and when they terminated her employment. Finally, Ms. O'Tool _and_ Mr. Pepper claimed that defendants unlawfully _terminated_ their _employment_ in retaliation for _Ms._ _O'Tool's_ _and_ Mr. Pepper's complaints of pregnancy discrimination. _For_ a _more_ _thorough_ _understanding_ of the facts of this case, _please_ see the court's order resolving defendants' motions for summary judgment, Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123 (D.Kan.2002). In November 2002, _plaintiffs'_ claims were tried to a jury _and,_ at the conclusion of the trial, the jury _returned_ a verdict in favor _of_ _plaintiffs_ Horizon and Mr. Pepper _on_ _their_ _breach_ of contract claim _in_ the _amount_ of $2,500,000. The jury _also_ found in _favor_ of the O'Tools _on_ their claims that defendants _breached_ the O'Tools' _employment_ contracts and awarded Ms. O'Tool the sum of $63,200 _and_ Mr. O'Tool the sum of $20,313. The jury found _in_ _favor_ _of_ defendants on all other _claims._ This matter _is_ presently before the court on three post-trial motions-plaintiffs' motion to alter or amend the judgment (doc. _#_ 197); _plaintiffs'_ motion for attorneys' fees, _costs_ and expenses (doc. # 198); and _defendants'_ renewed _motion_ for _judgment_ _as_ a matter _of_ law pursuant to Rule 50(b) or, in the _alternative,_ _motion_ _for_ remittitur 1256 and/or new trial pursuant _to_ Rule 59 (doc. _#_ 199). As _set_ forth _in_ more detail _below,_ plaintiffs' motion to _alter_ _or_ amend the judgment is granted _only_ to the _extent_ that a typographical error in the judgment _will_ be corrected and _is_ otherwise denied; plaintiffs' motion for _attorneys'_ fees, costs and expenses _is_ granted in part and _denied_ in part; _and_ defendants' renewed motion for judgment as a matter of law, for _remittitur_ and/or for a new trial is denied. I. _Defendants'_ Renewed Motion for Judgment as a Matter of Law, for Remittitur and/or for New Trial Defendants seek post-trial relief _on_ all aspects of the jury's verdict that _are_ favorable to _plaintiffs._ The primary _thrust_ _of_ _defendants'_ post-trial motion concerns the jury's _verdict_ _of_ $2.5 million _in_ favor of _Horizon_ and _Mr._ Pepper on the breach of contract claim. _According_ to _defendants,_ this award constitutes a windfall unsupported by the _facts_ or the law. Defendants urge _that_ plaintiffs, as a matter of law, _are_ not entitled to recover any damages in the _form_ of _lost_ earn-out. In _the_ alternative, defendants contend that _the_ award must be remitted or a new trial must _be_ granted on lost earn-out damages. Defendants also seek judgment as a matter of _law_ on _the_ jury's liability finding on _the_ _breach_ _of_ contract claim, asserting that plaintiffs _failed_ to present legally sufficient evidence that defendants breached the express or _implied_ terms _of_ the purchase agreement. Similarly, _defendants_ move _for_ _judgment_ as _a_ matter of law on _the_ _O'Tools'_ _claims_ for _breach_ of their respective employment _agreements_ or for _a_ remittitur of those verdicts. Finally, _defendants_ _assert_ _that_ _they_ are entitled to a _new_ trial because the court _erroneously_ admitted _parol_ evidence and erroneously instructed the jury on the duty of good _faith_ _and_ _fair_ dealing. A. The _Jury's_ Verdict in favor _of_ _Plaintiffs_ Horizon and Geoff _Pepper_ on their Breach of Contract Claim The court first _addresses_ _defendants'_ argument that _they_ are entitled _to_ judgment as _a_ matter of _law_ on _the_ jury's liability _finding_ with respect to Horizon and Mr. Pepper's breach _of_ contract claim. Judgment as a matter of law under Rule _50(b)_ "should be cautiously and _sparingly_ granted," Black v. M & _W_ Gear Co., 269 F.3d 1220, 1238 _(10th_ _Cir.2001),_ and is appropriate only if the evidence, _viewed_ _in_ the light most favorable to the nonmoving party, "points but one way and is susceptible to no reasonable inferences supporting the party opposing _the_ motion." Sanjuan v. _IBP,_ Inc., _275_ F.3d 1290, 1293 (10th Cir.2002). _In_ determining whether _judgment_ as a matter of _law_ _is_ _proper,_ the _court_ _may_ not weigh the evidence, consider _the_ credibility of witnesses, _or_ substitute its judgment for that _of_ the jury. See Turnbull _v._ Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir.2001). In essence, the court must affirm the jury verdict if, viewing the record _in_ the light _most_ favorable to the nonmoving party, it contains evidence upon which the jury _could_ properly return _a_ verdict _for_ _the_ nonmoving _party._ See Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1219-20 (10th Cir.1999) (citing Harolds Stores, Inc. v. _Dillard_ Dep't _Stores,_ Inc., 82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, the court must enter judgment as a matter of _law_ in favor of the moving party _if_ "there is no legally sufficient evidentiary _basis_ ... with _respect_ _to_ a claim or defense ... under the controlling law." Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1268 (10th _Cir._ _2000)_ _(quoting_ Harolds, 82 F.3d at 1546-47). In their papers, defendants assert that, as a _matter_ of law, they did _not_ _breach_ the express terms of the _purchase_ *1257 agreement or the _implied_ terms of the purchase agreement. The jury _was_ instructed _that_ they could find in favor of _plaintiffs_ on plaintiffs' breach of contract _claim_ if they found that plaintiffs had proved a breach _of_ one or more _express_ terms or a breach _of_ the implied duty _of_ good faith and fair dealing. _See_ Jury Instruction 12. _Because_ the court _concludes_ that _there_ was ample evidence presented _at_ trial _to_ _support_ a finding that defendants breached the implied covenant of good faith and fair dealing, the court declines to _address_ defendants' arguments _concerning_ whether the evidence _was_ sufficient to support a finding that defendants had breached _any_ express terms of the purchase agreement. According to _defendants,_ plaintiffs' _claim_ _for_ breach of the implied covenant of good faith and _fair_ _dealing_ fails as _a_ matter of _law_ because it purports to "add wholly new terms to _the_ contract" and "requires _the_ court _to_ rewrite _or_ supply _omitted_ provisions to the purchase _agreement_ in contravention of Delaware law." _[1]_ This is, of _course,_ an accurate _statement_ of _Delaware_ law. See, e.g., Cincinnati SMS A Limited _Partnership_ v. Cincinnati _Bell_ Cellular Systems Co., 708 _A.2d_ 989, 992 (Del. 1998) ("Delaware observes the wellestablished general principle that ... _it_ is not _the_ _proper_ role _of_ a court to rewrite or supply omitted provisions to _a_ _written_ agreement."). Nonetheless, _principles_ of good faith and fair dealing permit a court _to_ _imply_ _certain_ terms in an agreement so _as_ to _honor_ _the_ parties' reasonable expectations when those _obligations_ _were_ omitted, _in_ the literal sense, _from_ the text _of_ the written agreement but can be understood from _the_ text of the agreement. _Id._ _In_ determining whether to imply terms in _an_ agreement, the proper focus _is_ _on_ "what _the_ parties _likely_ would have _done_ if _they_ _had_ considered the _issue_ involved." Id. Nothing _in_ this court's _instructions_ to the jury _would_ have permitted the _jury_ to _"rewrite"_ the purchase agreement or to inject into _that_ agreement _wholly_ new terms. In _fact,_ the jury was instructed, entirely consistent with _Delaware_ law, that they _should_ consider "whether it is clear from what was expressly agreed upon by the parties that the parties would _have_ agreed _to_ prohibit the
320 F.3d 691 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.John SERPICO and Gilbert Cataldo, Defendants-Appellants, Cross-Appellees. No. 02-1702. No. 02-1726. No. 02-1925. United States Court of Appeals, Seventh Circuit. Argued October 31, 2002. Decided February 20, 2003. COPYRIGHT MATERIAL OMITTED David A. Glockner (argued), Office of U.S. Attorney, Crim. Div., Chicago, IL, for U.S. Matthias A. Lydon (argued), Winston & Strawn, Chicago, IL, for John Serpico. Jeffrey Schulman (argued), Wolin & Rosen, Chicago, IL, Donald Hubert, Hubert, Fowler & Quinn, Chicago, IL, for Gilbert Cataldo. Before RIPPLE, MANION, and EVANS, Circuit Judges. TERENCE T. EVANS, Circuit Judge. 1 For 12 years, John Serpico and Maria Busillo held and abused various influential positions with the Central States Joint Board ("CSJB"), a labor organization that provides support to its member unions. Among other responsibilities, Serpico and Busillo controlled the management of the unions' money. The pair, along with longtime friend and business associate Gilbert Cataldo, collaborated on three schemes involving the misappropriation of the unions' funds. Two of those schemes are the focus of this appeal by Serpico and Cataldo (Busillo has not appealed her conviction). 2 In their "loans-for-deposits" scheme, Serpico and Busillo deposited large sums of union money in various banks. In exchange, the two received overly generous terms and conditions on personal loans totaling more than $5 million. In the more complicated hotel loan kickback scheme, several groups entered into the 51 Associates Limited Partnership, which planned to construct a hotel. The partnership was unable to obtain financing for the construction of the building without first securing a commitment for a mortgage loan that would guarantee repayment of the construction loan after the hotel was built. Serpico used union funds to make a mortgage loan to the developers, after which Mid-City Bank agreed to make the construction loan. In exchange for Serpico's help in securing the loan, 51 Associates paid $333,850 to Cataldo's corporation, Taylor West & Company, for "consulting services" that Cataldo never actually performed. Cataldo then kicked back $25,000 to Serpico by paying Serpico's share of a $50,000 investment into an unrelated business project (the Studio Network project) in which the two were partners. 3 Serpico, Busillo, and Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At the close of the evidence, the court granted motions by Serpico and Busillo for acquittal on the racketeering and bank fraud counts. The jury convicted Serpico and Busillo on mail fraud charges relating to the loans-for-deposits scheme and Serpico and Cataldo on mail fraud charges for the hotel loan kickback scheme. 4 At sentencing, the district court determined that Serpico and Cataldo were each responsible for a loss of $333,850, the amount paid to Cataldo, for the hotel loan kickback scheme. For the loans-for-deposits scheme, the court found the damage to the unions to be equal to the additional amount of interest the union assets would have earned had Serpico purchased CDs at banks offering the highest interest rates instead of those offering him special deals on his personal loans. The court totaled loans from Capitol Bank as well as six others, estimating the loss to be between $30,000 and $70,000. The court thus increased Serpico's base offense level of 6 by 9 levels, plus 2 levels for more than minimal planning and 2 levels for abuse of trust (19 total). Serpico and Cataldo were sentenced to 30 and 21 months in prison, respectively. 5 Serpico and Cataldo (collectively "Serpico" as we go forward) appeal, challenging the verdicts and the application of the sentencing guidelines on a number of grounds. In its cross-appeal, the government also contests the application of the sentencing guidelines. 6 First, Serpico argues that his convictions should be overturned because his schemes did not "affect" a financial institution. The 5-year statute of limitations for mail and wire fraud offenses under 18 U.S.C. § 3282 is extended to 10 years "if the offense affects a financial institution," 18 U.S.C. § 3293(2), and Serpico could not have been prosecuted without that extension. Serpico claims that an offense only "affects a financial institution" if the offense has a direct negative impact on the institution. The district court instructed the jury that the schemes affected the banks if they "exposed the financial institution[s] to a new or increased risk of loss. A financial institution need not have actually suffered a loss in order to have been affected by the scheme." 7 Although Serpico agreed to the jury instruction, he now points to United States v. Agne, 214 F.3d 47, 53 (1st Cir.2000) and United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir.2000), to support his claim that the financial institution must suffer an actual loss. In Agne, however, the court found that the bank "experienced no realistic prospect of loss," so it did not have to reach the question of whether the bank must suffer an actual loss. Agne, 214 F.3d at 53. Similarly, Ubakanma simply held that "a wire fraud offense under section 1343 `affected' a financial institution only if the institution itself were victimized by the fraud, as opposed to the scheme's mere utilization of the financial institution in the transfer of funds." Ubakanma, 215 F.3d at 426. Neither side here argues that "mere utilization" is sufficient; the question is whether an increased risk of loss is enough, even if the institution never suffers an actual loss. 8 Several courts, including this one and the Fourth Circuit, which produced Ubakanma, have concluded that an increased risk of loss is sufficient in similar contexts. See, e.g., United States v. Longfellow, 43 F.3d 318, 324 (7th Cir.1994) (quoting United States v. Hord, 6 F.3d 276, 282 (5th Cir.1993) ("risk of loss, not just loss itself, supports conviction" for bank fraud)); United States v. Colton, 231 F.3d 890, 907 (4th Cir.2000); see also Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1990), p. 217 (The mail interstate carrier wire fraud statute "can be violated whether or not there is any [loss or damage to the victim of the crime] [or] [gain to the defendant]."). 9 More importantly, the whole purpose of § 3293(2) is to protect financial institutions, a goal it tries to accomplish in large part by deterring would-be criminals from including financial institutions in their schemes. Just as society punishes someone who recklessly fires a gun, whether or not he hits anyone, protection for financial institutions is much more effective if there's a cost to putting those institutions at risk, whether or not there is actual harm. Accordingly, we find no error in the district court's jury instruction. 10 Serpico next argues that, even if the district court correctly interpreted § 3292(2), his schemes did not "affect" a financial institution because they did not create increased risks for the banks involved in the schemes. Essentially, Serpico claims that the banks in both schemes were willing participants who would not have chosen to participate unless it was in their best interests (that is, factoring in the risks, they expected to make money on the deals). But the mere fact that participation in a scheme is in a bank's best interest does not necessarily mean that it is not exposed to additional risks and is not "affected," as shown clearly by the various banks' dealings with Serpico. 11 For example, the hotel loan kickback scheme affected Mid-City even though Mid-City believed it would make money on the deal. Mid-City made a $6.5 million construction loan, one it obviously would not have made if it believed the risks associated with the loan outweighed the expected payoff. But the loan, as all loans do, did carry some risk. Since Mid-City did not want to be a long-term real estate lender, it agreed to the loan only after Serpico misappropriated Midwest Pension Plan ("MPP") funds in making the MPP's $6.5 million end-mortgage loan (which meant that, if all went well, Mid-City would quickly be repaid). Therefore, Mid-City never would have been exposed to the risks of its loan absent Serpico's scheme because it never would have made the loan. 12 Serpico responds that MPP's $6.5 million essentially guaranteed the loan, so there was no risk to Mid-City. But, under the terms of the loan, if the hotel was not completed on time and under budget, the money MPP put up would be returned to it. That would leave Mid-City with a risky long-term loan it didn't want. On top of that, the kickback scheme increased the chances that the project would	320 f. 3d 691 united states of america, plaintiff - appellee, cross - appellant, v. john serpico regarding gilbert cataldo, defendants - appellants, cross - appellees. no. 02 - 1702. no. 02 - 1726. 05. 02 - 1925. united states court of appeals, seventh circuit. argued october 30, 2002. submitted february 20, 2003. copyright material omitted david a. glockner ( argued ), office of u. s. attorney, crim. div., chicago, il, former u. s. matthias a. lydon ( argued ), winston & strawn, chicago, il, for john serpico. jeffrey schulman ( argued ), wolin & rosen, chicago, il, donald robertson, hubert, fowler & quinn, chicago, il, for gilbert cataldo. cox ripple, manion, and evans, circuit judges. terence t. evans, circuit judge. 1 after 12 years, john serpico and maria busillo held and abused various influential positions with the central states joint board ( " csjb " ), a labor organization that provides support to its member unions. among other responsibilities, serpico and busillo controlled the management of the unions ' money. the pair, along with longtime friend and business associate gilbert cataldo, collaborated on three schemes involving the misappropriation of the unions ' funds. two of those schemes are the focus of this appeal by serpico and cataldo ( busillo has not appealed her conviction ). 2 in their " loans - for - deposits " scheme, serpico and busillo deposited large sums of union money in various banks. in response, the two received overly generous terms and conditions on personal loans totaling more than $ 5 million. in the more complicated hotel loan kickback scheme, several groups entered into the 51 associates limited partnership, which planned to construct a hotel. the partnership was unable to obtain financing for the construction of the building without first securing a commitment for a mortgage loan that would guarantee passage of the construction loan after the hotel was built. serpico used union funds to make a mortgage loan to the developers, after which mid - city bank agreed to make the construction loan. in exchange for serpico ' s help in securing the loan, 51 associates paid $ 333, 850 to cataldo ' s corporation, taylor west & company, for " consulting services " that cataldo never actually performed. cataldo then kicked back $ 25, 000 to serpico by paying serpico ' s share of a $ 50, 000 investment into an unrelated business project ( the studio network project ) in which the two were partners. 3 serpico, busillo, and cataldo were tried on charges of racketeering, mail fraud, and bank fraud. at the close of the evidence, the court granted motions by serpico and busillo for acquittal on the racketeering and bank fraud counts. the jury convicted serpico and busillo on mail fraud charges relating to the loans - for - deposits scheme and serpico and cataldo on mail fraud charges for the hotel loan kickback scheme. 4 at sentencing, the district court determined that serpico and cataldo were each responsible for a loss of $ 333, 850, the amount paid to cataldo, for the hotel loan kickback scheme. for the loans - for - deposits scheme, the court found the damage to the unions to be equal to the additional amount of interest the union assets would have earned had serpico purchased cds at banks offering the highest interest rates instead of those offering him special deals on his personal loans. the court totaled loans from capitol bank as well as six others, estimating the loss to be between $ 30, 000 and $ 70, 000. the court thus increased serpico ' s base offense level of 6 by 9 levels, plus 2 levels for more than minimal planning and 2 levels for abuse of trust ( 19 total ). serpico and cataldo were sentenced to 30 and 21 months in prison, respectively. 5 serpico and cataldo ( collectively " serpico " as we go forward ) appeal, challenging the verdicts and the application of the sentencing guidelines on a number of grounds. in its cross - appeal, the government also contests the application of the sentencing guidelines. 6 first, serpico argues that his convictions should be overturned because his schemes did not " affect " a financial institution. the 5 - year statute of limitations for mail and wire fraud offenses under 18 u. s. c. § 3282 is extended to 10 years " if the offense affects a financial institution, " 18 u. s. c. § 3293 ( 2 ), and serpico could not have been prosecuted without that extension. serpico claims that an offense only " affects a financial institution " if the offense has a direct negative impact on the institution. the district court instructed the jury that the schemes affected the banks if they " exposed the financial institution [ s ] to a new or increased risk of loss. a financial institution need not have actually suffered a loss in order to have been affected by the scheme. " 7 although serpico agreed to the jury instruction, he now points to united states v. agne, 214 f. 3d 47, 53 ( 1st cir. 2000 ) and united states v. ubakanma, 215 f. 3d 421, 426 ( 4th cir. 2000 ), to support his claim that the financial institution must suffer an actual loss. in agne, however, the court found that the bank " experienced no realistic prospect of loss, " so it did not have to reach the question of whether the bank must suffer an actual loss. agne, 214 f. 3d at 53. similarly, ubakanma simply held that " a wire fraud offense under section 1343 ` affected ' a financial institution only if the institution itself were victimized by the fraud, as opposed to the scheme ' s mere utilization of the financial institution in the transfer of funds. " ubakanma, 215 f. 3d at 426. neither side here argues that " mere utilization " is sufficient ; the question is whether an increased risk of loss is enough, even if the institution never suffers an actual loss. 8 several courts, including this one and the fourth circuit, which produced ubakanma, have concluded that an increased risk of loss is sufficient in similar contexts. see, e. g., united states v. longfellow, 43 f. 3d 318, 324 ( 7th cir. 1994 ) ( quoting united states v. hord, 6 f. 3d 276, 282 ( 5th cir. 1993 ) ( " risk of loss, not just loss itself, supports conviction " for bank fraud ) ) ; united states v. colton, 231 f. 3d 890, 907 ( 4th cir. 2000 ) ; see also pattern criminal federal jury instructions for the seventh circuit ( 1990 ), p. 217 ( the mail interstate carrier wire fraud statute " can be violated whether or not there is any [ loss or damage to the victim of the crime ] [ or ] [ gain to the defendant ]. " ). 9 more importantly, the whole purpose of § 3293 ( 2 ) is to protect financial institutions, a goal it tries to accomplish in large part by deterring would - be criminals from including financial institutions in their schemes. just as society punishes someone who recklessly fires a gun, whether or not he hits anyone, protection for financial institutions is much more effective if there ' s a cost to putting those institutions at risk, whether or not there is actual harm. accordingly, we find no error in the district court ' s jury instruction. 10 serpico next argues that, even if the district court correctly interpreted § 3292 ( 2 ), his schemes did not " affect " a financial institution because they did not create increased risks for the banks involved in the schemes. essentially, serpico claims that the banks in both schemes were willing participants who would not have chosen to participate unless it was in their best interests ( that is, factoring in the risks, they expected to make money on the deals ). but the mere fact that participation in a scheme is in a bank ' s best interest does not necessarily mean that it is not exposed to additional risks and is not " affected, " as shown clearly by the various banks ' dealings with serpico. 11 for example, the hotel loan kickback scheme affected mid - city even though mid - city believed it would make money on the deal. mid - city made a $ 6. 5 million construction loan, one it obviously would not have made if it believed the risks associated with the loan outweighed the expected payoff. but the loan, as all loans do, did carry some risk. since mid - city did not want to be a long - term real estate lender, it agreed to the loan only after serpico misappropriated midwest pension plan ( " mpp " ) funds in making the mpp ' s $ 6. 5 million end - mortgage loan ( which meant that, if all went well, mid - city would quickly be repaid ). therefore, mid - city never would have been exposed to the risks of its loan absent serpico ' s scheme because it never would have made the loan. 12 serpico responds that mpp ' s $ 6. 5 million essentially guaranteed the loan, so there was no risk to mid - city. but, under the terms of the loan, if the hotel was not completed on time and under budget, the money mpp put up would be returned to it. that would leave mid - city with a risky long - term loan it didn ' t want. on top of that, the kickback scheme increased the chances that the project would	320 F. 3d 691 UNITED STATES of America, Plaintiff - Appellee, Cross - Appellant, v. John SERPICO and Gilbert Cataldo, Defendants - Appellants, Cross - Appellees. No. 02 - 1702. No. 02 - 1726. No. 02 - 1925. United States Court of Appeals, Seventh Circuit. Argued October 31, 2002. Decided February 20, 2003. COPYRIGHT MATERIAL OMITTED David A. Glockner (argued ), Office of U. S. Attorney, Crim. Div. , Chicago, IL, for U. S. Matthias A. Lydon (argued ), Winston & Strawn, Chicago, IL, for John Serpico. Jeffrey Schulman (argued ), Wolin & E0sen, Chicago, IL, Donald Hubert, Hubert, Fowler & Quinn, ChicQg9, IL, for Gilbert Cataldo. Before RIPPLE, MANION, and EVANS, Circuit Judges. TERENCE T. EVANS, Circuit Judge. 1 For 12 years, John Serpico and Maria Busillo held and abused various influential positions with the Central States Joint Board (" CSJB " ), a labor organization that provides support to its member unions. Among other responsibilities, Serpico and Busillo controlled the management of the unions ' money. The pair, along with longtime friend and business associate Gilbert Cataldo, collaborated on three schemes involving the misappropriation of the unions ' funds. Two of those schemes are the focus of this appeal by Serpico and Cataldo (Busillo has not appealed her conviction ). 2 In their " loans - for - deposits " scheme, Serpico and Busillo deposited large sums of union money in various banks. In exchange, the two received overly generous terms and conditions on personal loans totaling more than $ 5 million. In the more complicated hotel loan kickback scheme, several groups entered into the 51 Associates Limited Partnership, which planned to construct a hotel. The partnership was unable to obtain financing for the construction of the building without first securing a commitment for a mortgage loan that would guarantee repayment of the construction loan after the hotel was built. Serpico used union funds to make a mortgage loan to the developers, after which Mid - City Bank agreed to make the construction loan. In exchange for Serpico ' s help in securing the loan, 51 Associates paid $ 333, 850 to Cataldo ' s corporation, Taylor West & Company, for " consulting services " that Cataldo never actually performed. Cataldo then kicked back $ 25, 000 to Serpico by paying Serpico ' s share of a $ 50, 000 investment into an unrelated business project (the Studio Network project) in which the two 24re partners. 3 Serpico, Busillo, and Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At the close of the evidence, the court granted motions by Serpico and Busillo for acquittal on the racketeering and bank fraud counts. The jury convicted Serpico and Busillo on mail fraud charges relating to the loans - for - deposits scheme and Serpico and Cataldo on mail fraud charges for the hotel loan kickback scheme. 4 At sentencing, the district court determined that Serpico and Cataldo were each responsible for a loss of $ 333, 850, the amount paid to Cataldo, for the hotel loan kickback scheme. For the loans - for - deposits scheme, the court found the damage to the unions to be equal to the additional amount of interest the union assets would have earned had Serpico purchased CDs at banks offering the highest interest rates instead of those offeginh him special deals on his personal loans. The court totaled loans from Capitol Bank as well as six others, estimating the loss to be between $ 30, 000 and $ 70, 000. The court thus increased Serpico ' s base offense level of 6 by 9 levels, plus 2 levels for more than minimal planning and 2 levels for abuse of trust (19 total ). Serpico and Cataldo were sentenced to 30 and 21 months in prison, respectively. 5 Serpico and Cataldo (collectively " Serpico " as we go forward) appeal, challenging the verdicts and the application of the sentencing guidelines on a number of grounds. In its cross - appeal, the government also contests the application of the sentencing guidelines. 6 First, Serpico argues that his convictions should be overturned because his schemes did not " affect " a financial institution. The 5 - year statute of limitations for mail and wire fraud offenses under 18 U. S. C. § 3282 is extended to 10 years " if the offense affects a financial institution, " 18 U. S. C. § 3293 (2 ), and Serpico could not have been prosecuted without that extension. Serpico claims that an offense only " affects a financial institution " if the offense has a di$ech negative impact on the institution. The district court instructed the jury that the schemes affected the banks if they " exposed the financial institution [s] to a new or increased risk of loss. A financial institution need not have actually suffered a loss in order to hXv2 been affected by the scheme. " 7 Although Serpico agreed to the jury instruction, he now points to United States v. Agne, 214 F. 3d 47, 53 (1st Cir. !000) and United States v. Ubakanma, 215 F. 3d 421, 426 (4th Cir. 2000 ), to support his claim that the financial institution must suffer an actual loss. In Agne, however, the court found that the bank " experienced no realistic prospect of loss, " so it did not have to reach the question of whether the bank must suffer an actual loss. Agne, 214 F. 3d at 53. Similarly, Ugakajma simply held that " a wire fraud offense under section 1343 ` affected ' a financial institution only if the institution itself were victimized by the fraud, as opposed to the scheme ' s mere utilization of the financial institution in the transfer of funds. " Ubakanma, 215 F. 3d at 426. Neither side here argues that " mere utilization " is sufficient; the question is whether an increased risk of loss is enough, even if the institution never suffers an actual loss. 8 Several courts, including this one and the Fourth Circuit, which produced Ubakanma, have concluded that an increased risk of loss is sufficient in similar contexts. See, e. g. , United States v. Longfellow, 43 F. 3d 318, 324 (7th Cir. 1994) (quoting United States v. Hord, 6 F. 3d 276, 282 (5th Cir. 1993) (" risk of loss, not just loss itself, supports conviction " for bank fraud) ); United States v. Colton, 231 F. 3d 890, 907 (4th Cir. 2000 ); see also Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1990 ), p. 217 (The mail interstate carrier wire fraud statute " can be violated whether or not there is any [loss or damage to the victim of the crime] [or] [gain to the defendant ]. " ). 9 More importantly, the whole purpose of § 3293 (2) is to pEotext financial institutions, a goal it tries to accomplish in large part by deterring would - be criminals from including financial institutions in their schemes. Just as society punishes someone who recklessly fires a gun, whether or not he hits anyone, protection for financial institutions is much more effective if there ' s a cost to putting those institutions at risk, whether or not there is actual harm. Accordingly, we find no error in the district court ' s jury instruction. 10 Serpico next argues that, even if the district court correctly interpreted § 3292 (2 ), his schemes did not " affect " a financial institution because they did not create increased risks for the banks involved in the schemes. Essentially, Serpico claims that the banks in both schemes were willing participants who would not have chosen to participate unless it was in their best interests (that is, factoring in the risks, they expected to make money on the deals ). But the mere fact that participation in a scheme is in a bank ' s best interest does not necessarily mean that it is not exposed to additional risks and is not " affected, " as shown clearly by the various banks ' dealings with Serpico. 11 For example, the hotel loan kickback scheme affected Mid - City even though Mid - City believed it would make money on the deal. Mid - City made a $ 6. 5 million construction loan, one it obviously would not have made if it believed the risks associated with the loan outweighed the expected payoff. But the loan, as all loans do, did carry some risk. Since Mid - City did not want to be a long - term real estate lender, it agreed to the loan only after Serpico misappropriated Midwest Pension Plan (" MPP ") funds in making the MPP ' s $ 6. 5 million end - mortgage loan (which meant that, if all went well, Mid - City would quickly be repaid ). Therefore, Mid - City never would have been exposed to the risks of its loan absent Serpico ' s scheme because it never would have made the loan. 12 Serpico responds that MPP ' s $ 6. 5 million essentially guaranteed the loan, so there was no risk to Mid - City. But, under the terms of the loan, if the hotel was not completed on time and under budget, the money MPP put up would be returned to it. That would leave Mid - City with a risky long - term l*zn it didn ' t want. On top of that, the kickback scheme increased the chances that the project would	320 691 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.John SERPICO and Gilbert Cataldo, Cross-Appellees. No. 02-1702. No. 02-1726. No. 02-1925. United States Court of Seventh Circuit. Argued 31, 2002. Decided February 2003. COPYRIGHT MATERIAL OMITTED David A. Glockner (argued), Office of U.S. Attorney, Crim. Div., Chicago, IL, U.S. Matthias A. Lydon (argued), Winston & Strawn, IL, for Serpico. Jeffrey Schulman (argued), Wolin & Chicago, IL, Donald Hubert, Hubert, Fowler & Quinn, Chicago, IL, for Gilbert Cataldo. Before RIPPLE, and EVANS, Circuit Judges. TERENCE Circuit Judge. 1 For 12 years, John Serpico and Maria Busillo held and abused various positions with the Central States Joint Board ("CSJB"), organization that provides support to its member unions. Among other Serpico and Busillo controlled the management of the unions' money. The pair, along with longtime friend and business associate Cataldo, collaborated on three schemes involving the of the funds. Two of those schemes are the of appeal by Serpico and Cataldo (Busillo has not her conviction). 2 In their "loans-for-deposits" scheme, Serpico and deposited large sums of union money in various banks. In exchange, the two received overly generous and conditions on personal more than $5 million. In the more complicated hotel loan kickback scheme, several groups entered into the 51 Associates Limited Partnership, planned to construct a hotel. The partnership was unable to obtain financing for the construction of the building without first securing a for a mortgage loan that would guarantee repayment of the construction loan after the hotel was built. Serpico used union funds to make a mortgage loan to the developers, after which Mid-City Bank agreed to make the construction loan. In Serpico's help in securing the loan, 51 Associates paid $333,850 to Cataldo's corporation, Taylor West & Company, for services" that Cataldo never actually performed. Cataldo then kicked back $25,000 to Serpico by paying Serpico's share of $50,000 investment into an unrelated business project (the Studio Network project) in which two partners. 3 Serpico, and Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At the close of the evidence, the court granted motions by Serpico and Busillo for acquittal on the racketeering and bank fraud counts. The jury convicted and Busillo mail fraud charges relating to the loans-for-deposits scheme and Serpico and Cataldo on mail fraud charges for the hotel loan kickback scheme. 4 At sentencing, the court determined that Serpico and Cataldo were each responsible loss of $333,850, the to Cataldo, for the hotel loan kickback scheme. For the scheme, the court found the damage to the unions to be equal to additional amount of interest the union assets have earned had Serpico purchased CDs at banks offering the interest instead of those offering him special deals on his personal loans. The court totaled loans Capitol Bank as well as six others, estimating the loss to be $30,000 $70,000. The court thus increased base offense level of 6 by levels, plus 2 levels for more than minimal planning and 2 levels for abuse of trust (19 total). Serpico and were sentenced to 30 and 21 months in prison, respectively. 5 Serpico and Cataldo (collectively "Serpico" as we go appeal, challenging verdicts and the application of the sentencing guidelines a of grounds. In its cross-appeal, the government also contests the application of the sentencing guidelines. 6 First, Serpico argues his convictions should be overturned because his schemes did not financial institution. The 5-year of limitations for mail and wire fraud offenses 18 U.S.C. § 3282 is extended to years "if the offense affects financial 18 U.S.C. § 3293(2), and Serpico could not have prosecuted that extension. Serpico claims that an offense only "affects a financial if the offense has a negative impact on the institution. The district court instructed the that the affected the banks if they "exposed financial institution[s] to a new or increased risk of loss. A financial institution need not have actually a loss in order to have been affected the scheme." Although Serpico agreed to jury instruction, he points to United States v. Agne, 214 F.3d 47, 53 (1st Cir.2000) and United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir.2000), his claim that the financial institution must suffer an actual loss. In Agne, however, the court found that the "experienced no prospect of loss," so it not have reach the question of whether the bank must an actual loss. Agne, 214 F.3d at 53. Similarly, Ubakanma simply held that "a wire fraud offense under section 1343 `affected' a financial institution only if institution itself were victimized the as opposed to the scheme's mere utilization of the institution in the transfer of funds." Ubakanma, 215 F.3d at 426. Neither side here argues that "mere utilization" is the question whether an increased of loss is enough, even if the institution never an actual loss. 8 Several courts, including this one and the Fourth Circuit, which produced have concluded an increased risk of loss is sufficient in similar contexts. See, e.g., United States v. Longfellow, 43 318, 324 (7th Cir.1994) (quoting United States Hord, 6 F.3d 282 (5th Cir.1993) ("risk of loss, not loss itself, supports conviction" for bank fraud)); United States v. Colton, 231 F.3d 890, 907 (4th Cir.2000); see Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1990), p. 217 (The mail interstate carrier wire statute "can be violated whether or not there [loss or damage to the victim of crime] [or] [gain to the defendant]."). 9 More importantly, the whole purpose § 3293(2) protect financial institutions, a goal it to accomplish in large part by deterring would-be criminals from including institutions in schemes. Just as society punishes someone who recklessly fires a gun, whether or not hits anyone, for financial institutions is much more effective if there's a cost to putting those institutions at whether or not there is actual harm. Accordingly, we find error in the district court's instruction. 10 Serpico next argues that, even if district interpreted § 3292(2), his schemes did not "affect" a financial institution because they did not create increased for the banks involved in the schemes. Essentially, claims that the banks both were willing participants who would not have chosen to participate unless in their best (that factoring in the risks, they expected to make money on the deals). But the mere fact that participation in a scheme is in a bank's best interest does not necessarily mean that it is not exposed additional risks and is not "affected," as shown clearly by various banks' dealings with Serpico. 11 For example, the hotel loan kickback scheme affected Mid-City even though Mid-City believed it would make money on the deal. Mid-City made a $6.5 million construction loan, one it obviously would not made if it the risks associated with the loan outweighed expected payoff. But the loan, as all loans do, did carry risk. Since Mid-City not want to be a long-term real estate lender, it agreed to the loan only Serpico misappropriated Midwest Pension ("MPP") funds making the MPP's million end-mortgage loan (which meant that, if all went well, Mid-City would quickly be repaid). Therefore, Mid-City never would have been exposed to the risks of its loan Serpico's scheme because it never would have made the loan. 12 Serpico responds that MPP's $6.5 million essentially guaranteed the loan, so was risk to Mid-City. But, under the terms the loan, if the hotel was not completed on time and under budget, the money MPP put up would be returned to it. That would leave Mid-City with a risky long-term loan it didn't want. top of that, the kickback scheme increased the chances that the project would	320 F.3d 691 uniTEd stAtES of aMERIcA, PlAiNtIfF-APPEllEE, cRoSs-aPPeLlaNt,V.joHn sERPICo aND gIlbert cAtaLDo, DEfENdaNts-aPpElLANts, CrOSs-APpEllees. no. 02-1702. No. 02-1726. no. 02-1925. UNIteD StATES cOUrT oF aPpEAls, SEvENTH CIRcuit. arguEd ocToBER 31, 2002. DECIdED FebruarY 20, 2003. COpYrIghT maTEriaL OmITTEd dAvid A. GLOcKnER (ArGUED), OfFICe oF U.s. atTornEy, criM. DIv., chiCagO, iL, FOr u.s. mAtthiAs A. lYdoN (argUEd), wiNsTON & StRawn, cHICAgO, IL, For JOhn SerPICo. jEfFREy SChUlMAN (arGUed), WOlin & ROsEN, chiCaGO, iL, DoNAlD huBERt, hUbERT, fowLeR & QuInn, CHiCAgo, IL, FOr GilbErt CATAlDo. beforE ripPLe, mANION, and EVans, CiRcUIT jUDgeS. teRencE T. EVAns, CirCuiT jUdGE. 1 FOR 12 yEArS, JoHn serPico and maRIa busiLLo heLD AND ABUsed vARiOUs INFLuEntiAl posiTIONs wiTH THE cenTrAL sTATes JOiNt BoARd ("CSJb"), A LAbOr OrGaNIzATiOn thaT PRovidES SuPport tO iTS meMBer unIoNs. AMOng othER rESponsiBiliTIES, sErpICO ANd BUSIlLo conTrolled The MANAGemenT OF THE unIoNS' monEy. THE paIr, alOnG WitH LOngTimE frIend and bUsInEss aSSociaTe gIlBeRt CAtaldo, coLLAborAtEd oN THrEe ScHEmes inVolvING the MISAPPRopriATIoN of tHe UnIonS' funDs. TWO oF tHose SchEmES ARE tHE FOcuS OF This aPPeAL BY SeRPico ANd CAtaLDO (BuSillo HAs noT apPealED her CoNVictION). 2 in thEIR "lOAns-FOr-dePoSiTs" ScHeme, sERPIcO AnD bUSiLlO depOSiTeD larGE SUms Of uNIon Money IN VaRioUs BaNKs. in exChaNGe, THe two rEceivEd OVErly geNerOus terMs and cOndITIONS ON PERsoNal lOaNS toTaLIng MORE Than $5 milliON. in tHE moRE cOMPlIcATEd HotEL loaN KIcKbaCK Scheme, SeVERAl GRoUPs EnteRed InTo ThE 51 ASSOciATeS limItEd PaRTNerShIp, WHiCH PLANNed TO cONSTruCT a HotEl. tHE pArTnERShIP WAS uNaBlE tO oBTaiN FiNancIng FOr the cONStRUctIon of The buIlDinG wITHoUt fIrSt SEcURINg a CommITMeNt FoR a mOrTgAgE loan that wouLd GUARanteE rEPaYment Of the CoNsTrUCTIon LOan AFtEr THe HOtEl WaS bUILT. sErpICo usED UNion FunDs to mAke A MorTGAgE LOAN TO THE devELOperS, aftEr wHICh MId-CitY BAnk aGreED to Make tHe CONsTruCtIOn loaN. In eXchAnGE FOR SeRpicO's HElp iN secURING the loAn, 51 ASSOCIates paID $333,850 To CATaldo's COrPOrAtIOn, Taylor weSt & cOmpANy, fOR "CoNSuLTINg SErviCES" THAt CataLdo neVER ActUAllY PERForMeD. CATAldo Then kIcKEd baCK $25,000 to SerPicO BY payInG SeRPIco'S SHARE oF A $50,000 InvESTMENt iNTo aN unrELATEd BUsinesS PROJect (tHe StUDio NEtworK proJECT) IN WhIcH The TWO WerE partners. 3 sERpiCO, BUSILlO, anD CatALdO WerE tRiEd ON charGES Of RacKeTeErinG, MaIL FrAUd, AnD BanK fraud. AT THE close of The evIdenCe, THe cOURT GrANTEd MOTIonS bY seRpICo aND buSIllo FOr ACQuitTAL oN tHe racKEteerIng and baNK FrAud COunts. ThE jUrY cONvIcTED serPICo anD bUsIlLO ON MAiL FrAuD CharGes reLAting To THe LOANs-FOr-depoSits SCHeme and sErPiCO aND cATALDo ON MaiL FrAUd CHaRGES fOR THE hoTel LoaN kICkbAck SCHEmE. 4 AT SeNTeNcINg, thE disTRict COuRt DetERmINED THat seRpIcO and caTALDO WErE eaCH rEsPONsiBlE fOr a lOsS Of $333,850, THe AmoUNT PaID tO cAtaLDo, fOR tHe hoTEl lOAn kICkbacK SchEme. For tHe lOANs-for-dEposits ScheME, THE couRT fouNd The DAMage to thE UNIoNs tO be eqUAL tO thE aDdITIoNAl AMOunt oF iNtErEsT THe uNioN AsSETS WoulD havE EArNeD had sERpICO puRcHasEd CDs aT BaNKS OFFerING THe hIGHesT inTErEST rAtEs InSteAD Of those OfferInG hIm SpeCIAl deals oN hiS PerSONAL lOANS. THe couRT TOTalED lOanS fRom capitoL banK AS weLL As SiX OthErs, eStimatIng tHE LOSS To Be BeTwEEN $30,000 AND $70,000. thE cOurt thus inCrEaSeD sERpICo's base oFFEnSe levEl of 6 by 9 leVelS, PlUs 2 lEvels FOr moRE thaN MINIMaL PLANning ANd 2 lEVels FoR aBUSe Of tRUst (19 totAl). sErpico anD CAtaldo wEre SENTEnCed tO 30 AND 21 moNtHs iN PRiSon, RESPECtivelY. 5 serpiCo anD caTaldO (COLLECtivELy "SerpiCO" As WE gO FORwArd) APpEaL, CHALlEngIng tHE VERdIctS aNd tHE APpLiCAtion Of THe sEnTencinG GUidElInes oN A nuMbEr of groUnDS. IN ItS CrOSs-aPpEal, THE GOvErnment also CoNtEsts thE appLicatioN oF ThE sENTENcIng guidELiNEs. 6 FIRSt, SErPICo aRGues tHAt his cONVictioNs Should bE oVERtUrNeD BecAuse hIs ScheMeS dID NoT "AFFECT" a fiNAnciaL INSTItUtiON. thE 5-yeAr StatUTe Of LImitaTIoNS FOr MAil aND wIrE fRaUd OFFEnseS UNdER 18 u.S.C. § 3282 is eXtEndeD TO 10 yearS "iF THE OFFensE AfFEctS a FINaNCIAL InstITUtiON," 18 U.s.C. § 3293(2), ANd SeRPIco cOuLd not HaVE BeeN ProsECuted WiThoUT THat ExTEnSiON. sErpico CLaIMS that AN OffenSe OnLY "AfFecTs A fINAnciAl inStituTION" if THe ofFEnSE has a DIrECt NeGATIvE imPACT On The inSTItUTiOn. THe dIStRict cOUrt iNsTruCTeD THE jury That the ScHEMES AfFEcTEd THe bANks IF they "ExPoSEd tHE fInAnCIal insTitUTIon[s] TO a neW or INcREASED Risk OF loSS. a fINancIAl iNsTiTuTiON nEeD Not HaVe aCtUally SuFFErEd a loss In oRdEr to havE been AffEcteD By the scHEMe." 7 ALThoUgh SERpiCo AgreEd to ThE jURy iNSTrucTion, He nOw pOinTS to unItED STatEs v. AgnE, 214 F.3D 47, 53 (1ST cir.2000) aNd uNitED StATEs v. UBaKANmA, 215 f.3D 421, 426 (4TH cIR.2000), tO supporT HIs cLAim THAT tHe FiNAnciaL INsTiTUTion Must sUfFER an actuAl LosS. in agNE, hOwEVer, The cOURt FouNd ThaT tHE BaNk "eXPeRIENcEd no RealIstic ProspECt Of loss," sO IT diD NOT HavE To REaCh The QUestioN of WHEthER THe baNK muSt SUffer AN ACTUAl loSS. Agne, 214 F.3D AT 53. SimiLARLY, uBakAnma sIMPlY HEld tHat "A wIRe fraud oFfEnse UNDer SECTIoN 1343 `AFFEcTed' A FinAnCIAL INSTitutioN OnlY iF the INstitUtIon ITseLF WerE ViCtimIzED By tHE FRAUd, As opPoSed tO The SchEme'S MEre UTILIzATIon of THE fINAnciAl iNSTITutIOn In tHe transFer of FunDs." ubAkaNMA, 215 F.3d aT 426. nEItHeR SiDE HErE argUEs thAT "mERe utiLiZAtiOn" is suffICiENt; The QUeSTioN IS WHETHer aN iNcreAsed RiSk OF LosS Is ENoUgH, EveN iF the INStITuTION nEVER SUfFErs aN aCTuAl LOSs. 8 sEVERAL coUrTs, inCLUDing ThIS OnE and tHE FouRtH CirCuiT, wHich prODUCeD ubaKANMA, HAve coNClUDed thaT An iNCREAsed RiSK Of LOSs is sUFfiCiENt in SimIlAR conTEXtS. See, e.G., unITeD stATeS V. loNgfellOW, 43 F.3D 318, 324 (7tH ciR.1994) (qUOTiNG uniTeD states V. Hord, 6 f.3D 276, 282 (5TH cIr.1993) ("RiSk of loSS, nOt juSt LOSs itSelf, suPpoRTS cOnVictIOn" fOR BaNK FrAud)); uNitEd sTAtES v. cOlton, 231 f.3D 890, 907 (4th cir.2000); SEE AlsO pAttErn CRImINaL fEdERaL juRy inSTrUcTioNS fOr tHE seVenTh CiRCUiT (1990), P. 217 (tHe MAiL INTErsTaTe CaRrIEr wIrE FraUD stATute "CaN bE VIoLAted WhetHeR Or Not THeRE iS aNy [LoSS OR dAMAGe tO thE viCTim OF THE cRimE] [or] [GaIn TO the DefENDaNt]."). 9 mOrE ImpoRtantLY, tHe WHOLE PurPosE of § 3293(2) IS TO pRoTEcT fInaNcial instITutIonS, a goal it TRIES To AccoMpliSH IN Large PaRT bY dEterRINg wOUlD-Be CrImiNaLS FRom inclUDIng FiNAnCIaL iNsTituTIOnS IN tHEiR schEmEs. just AS sOcieTy PUnisHes SomeoNe wHo rEckLeSSlY FIreS a gUn, WheTHer Or noT HE HIts AnyONe, prOTeCTIOn For FinaNCIAL iNstiTutIonS Is MuCh MoRE efFeCtive IF tHERE's A COST TO PUtTInG thoSE inSTiTUTIonS At Risk, whEthER OR NOT therE is ActUal hARM. AccordInGlY, wE FINd nO eRROR in ThE dIstRICT courT'S jUrY INSTruCtiOn. 10 SERPICO NEXt ArgueS tHaT, eVeN if THe diStRicT COurt cOrrEctLY iNtErPreted § 3292(2), HiS SCHeMes DId noT "AfFEcT" A FiNanCIAL INsTiTuTIOn BECausE ThEY DId noT CREaTe inCREaSED RIsKs foR THe banKs INvolVeD In THe scHEMES. EsSeNtialLy, seRpicO claimS ThaT the BanKs In bOTh SChemEs WerE WIlliNg pARtIcipaNTS WHo wOULd NOt HAVE Chosen tO PARtiCIpATE unleSs iT was IN their BeST iNteRESts (THAT iS, facTorING In tHE risKs, ThEy eXPeCteD tO maKE monEy On thE DEAlS). but The meRe faCt thaT ParTicipAtION In a scHemE IS IN a BaNK'S Best iNTErESt doEs nOT neCEsSaRily Mean that It is nOT expOSEd to additIONal RISKs ANd iS nOT "aFfecTeD," aS ShOWN ClEaRLy BY the vArIous BaNkS' DeaLINGS WITH sErPico. 11 FOr examPLe, the Hotel lOAn kicKbaCk sCHeme AFFECted MId-CitY EveN THouGh MID-City beLIEvED iT wouLD MAkE monEY On thE DeaL. Mid-cIty maDe A $6.5 mILLioN coNstRUCTion lOan, OnE It ObViouSlY woulD NOt have mADE if it BEliEvEd tHE rIskS ASsOCiaTED with THE loAN OuTwEIgHEd ThE eXPectED PaYOff. bUt thE loAN, As aLL lOans do, did CARRy SoME RisK. SincE miD-CITy dId Not Want tO bE A LonG-teRm reAL ESTATe lEnDEr, It aGReED To the LoaN oNLY aFtEr sErPICo MiSapPRoPrIAtEd Midwest PEnsiON PlAn ("mpP") fUNdS in MakINg the mPp'S $6.5 mILLiOn end-mortgagE LOan (WHICH MEant THAt, If all WeNT WEll, MiD-citY woUld QuICKLY Be rePaID). THereFOrE, mId-CITy NevER wOuLD hAVE BEen eXPOSed TO THe rIskS of Its LoAN AbsEnT serPICo's SchEME beCAUse IT nEVer wOULd hAve MADE THE LOaN. 12 seRpiCo respOndS tHat Mpp'S $6.5 MiLLIoN esSENtiAlly GUarANtEed THe loAN, so THeRe wAs NO rISK tO miD-ciTy. But, uNDER the terMs Of THE LoAN, iF ThE HOTel wAS nOt cOMPLEteD oN tIMe And unDeR bUDget, THE MONey MPP puT up WoulD Be RetuRNed to IT. tHAt wOuLd leavE Mid-CiTy with a riskY LOnG-TeRM Loan iT DiDN'T WanT. On tOp Of ThAt, the KICKbaCk SCHeme iNcREASED tHe cHANCEs That thE pRojEct would	320 F.3d691 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.JohnSERPICO andGilbertCataldo, Defendants-Appellants, Cross-Appellees. No. 02-1702.No.02-1726. No. 02-1925. United StatesCourt of Appeals, Seventh Circuit.Argued October 31, 2002. Decided February 20, 2003. COPYRIGHT MATERIAL OMITTED David A. Glockner(argued), Office ofU.S. Attorney,Crim.Div., Chicago,IL,for U.S. Matthias A. Lydon (argued), Winston & Strawn, Chicago, IL, for John Serpico. Jeffrey Schulman (argued), Wolin & Rosen, Chicago, IL,Donald Hubert, Hubert, Fowler & Quinn, Chicago, IL, for Gilbert Cataldo. Before RIPPLE, MANION, and EVANS, Circuit Judges. TERENCET.EVANS, Circuit Judge.1For 12 years, John SerpicoandMaria Busillo held and abused various influentialpositions with the Central States Joint Board ("CSJB"), a labor organization thatprovides support to itsmember unions. Among other responsibilities,Serpico and Busillo controlled the management of theunions' money.The pair, along with longtime friend and business associate Gilbert Cataldo, collaborated on three schemes involving the misappropriation of the unions' funds. Two of those schemes are the focus ofthis appeal by Serpicoand Cataldo (Busillo has not appealed her conviction).2 In their "loans-for-deposits" scheme, Serpicoand Busillo deposited large sums of union money in various banks. In exchange, the two received overly generousterms and conditions onpersonal loans totaling more than $5 million. In the more complicated hotel loan kickback scheme,several groups entered into the 51 Associates Limited Partnership, which planned toconstruct ahotel. The partnership was unable toobtain financing for the constructionof the buildingwithout first securing acommitment for a mortgage loan that wouldguarantee repayment of the construction loan after the hotel was built. Serpico used union funds to makea mortgageloan to the developers, after which Mid-City Bank agreed to make the construction loan. In exchange for Serpico's help insecuring the loan, 51 Associates paid $333,850 to Cataldo's corporation, Taylor West& Company, for "consulting services" that Cataldo never actually performed. Cataldo then kicked back $25,000 to Serpico by paying Serpico's share of a $50,000 investment into an unrelated business project (the Studio Network project) in which the twowere partners. 3 Serpico,Busillo, and Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At the close ofthe evidence, the court granted motions by Serpico and Busillo for acquittal on the racketeering and bank fraud counts. The jury convictedSerpico and Busillo on mail fraud charges relating to the loans-for-deposits scheme and Serpico and Cataldo on mail fraud charges for the hotel loan kickback scheme.4 At sentencing, the district court determined that Serpico and Cataldo were each responsible for a loss of $333,850, the amount paid to Cataldo, for thehotel loan kickback scheme. For the loans-for-deposits scheme,the court foundthe damage to the unions to be equal to the additional amount ofinterest the union assetswould have earned had Serpicopurchased CDs at banks offering thehighest interest rates instead of those offering him specialdeals onhispersonal loans. The courttotaled loans from Capitol Bank as well as six others, estimating theloss to be between $30,000 and $70,000.Thecourtthus increased Serpico's base offense level of 6 by 9 levels, plus 2 levelsformore than minimal planning and 2 levels forabuse of trust (19 total).Serpico and Cataldo were sentenced to 30and 21 months in prison,respectively. 5 Serpico and Cataldo (collectively "Serpico" as we go forward) appeal, challenging the verdicts and the application of thesentencingguidelines on a number of grounds. In its cross-appeal, the government also contests theapplicationof thesentencing guidelines. 6 First,Serpico argues that his convictions shouldbe overturned because his schemes didnot "affect" a financial institution. The5-year statute oflimitations for mailand wire fraud offenses under 18 U.S.C. §3282 is extended to 10 years "if the offenseaffects a financial institution," 18 U.S.C. § 3293(2), and Serpico could not have been prosecuted without that extension. Serpico claimsthat an offense only "affects a financial institution" if the offensehas a direct negative impact on the institution. The district courtinstructed the jury thatthe schemes affected the banks if they "exposed the financial institution[s] to a new or increased riskofloss. A financial institution need nothave actually suffered a loss in order to have been affected by the scheme." 7 AlthoughSerpico agreed to the juryinstruction, henow pointsto United States v. Agne, 214 F.3d 47, 53 (1st Cir.2000) and United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir.2000), to support his claim that the financial institution must suffer an actual loss. In Agne, however, the court found that the bank "experiencedno realistic prospect of loss,"soit didnot have to reach thequestion of whether the bank must suffer an actual loss. Agne, 214 F.3d at 53. Similarly,Ubakanma simply held that "awire fraud offense under section 1343 `affected' a financial institutiononly if the institution itselfwere victimized by the fraud,as opposed to thescheme's mereutilization of the financial institution inthe transfer of funds." Ubakanma, 215F.3d at 426.Neither sidehere argues that "mere utilization" is sufficient; the question is whether an increased risk of loss is enough, even if the institution never suffers an actual loss. 8 Several courts, including this oneand the Fourth Circuit,which produced Ubakanma, have concludedthat an increased risk of loss is sufficient in similar contexts. See,e.g., United States v. Longfellow, 43 F.3d318, 324 (7th Cir.1994)(quoting United Statesv. Hord, 6 F.3d 276, 282 (5th Cir.1993) ("riskof loss, notjust loss itself, supports conviction" for bank fraud)); United States v. Colton, 231 F.3d 890, 907 (4th Cir.2000); see also Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1990), p.217 (The mail interstate carrier wire fraud statute "can be violated whether or not there is any[loss or damage to the victim of thecrime] [or] [gain to the defendant]."). 9 More importantly, the whole purpose of § 3293(2)is toprotect financial institutions, a goal ittries to accomplishin large part by deterring would-be criminalsfromincluding financial institutions intheir schemes. Just as society punishes someone who recklessly fires a gun, whether or not he hits anyone, protection forfinancial institutions is much more effective ifthere's a cost to putting those institutions atrisk, whether or notthereis actual harm. Accordingly, we find no error in the district court's jury instruction. 10 Serpico nextargues that, even if the district court correctly interpreted §3292(2), his schemes did not "affect"afinancial institution because they did notcreate increased risks for the banks involved in the schemes. Essentially, Serpico claims thatthe banks in both schemes were willing participants who would not have chosen to participate unless it was intheir best interests (that is, factoringin the risks, they expected to make money on the deals).But the mere factthatparticipation in ascheme is in a bank's best interest does not necessarily mean that it is not exposed to additional risksand is not "affected,"as shown clearly bythe various banks' dealings with Serpico.11 Forexample, the hotel loan kickback scheme affected Mid-City even though Mid-Citybelieved it would makemoney on the deal. Mid-City madea $6.5 million construction loan,one it obviously would not have made if it believed the risks associatedwith the loan outweighed the expected payoff. But the loan, as all loans do, did carry somerisk.Since Mid-Citydid not want to be a long-term realestate lender, it agreed to the loan only after Serpico misappropriated Midwest Pension Plan("MPP") funds in making the MPP's $6.5 million end-mortgageloan (which meant that, if all went well, Mid-City would quickly berepaid). Therefore, Mid-City never would have been exposed to therisks of its loanabsent Serpico's scheme because it never wouldhave made the loan.12 Serpico responds that MPP's$6.5 million essentially guaranteed theloan, so therewas no risk to Mid-City.But, under theterms of the loan, if the hotel was not completed on time andunder budget, the money MPP put up wouldbe returned to it. That would leave Mid-City with a risky long-term loan it didn'twant. On top ofthat, the kickback schemeincreased the chances thatthe project would	_320_ F.3d 691 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.John SERPICO and _Gilbert_ Cataldo, Defendants-Appellants, Cross-Appellees. No. 02-1702. No. 02-1726. _No._ 02-1925. United States Court of Appeals, _Seventh_ Circuit. Argued October _31,_ _2002._ Decided February 20, _2003._ _COPYRIGHT_ MATERIAL OMITTED David _A._ Glockner (argued), Office of U.S. Attorney, _Crim._ Div., Chicago, IL, for U.S. _Matthias_ A. Lydon (argued), _Winston_ & Strawn, _Chicago,_ IL, _for_ John Serpico. Jeffrey Schulman (argued), Wolin & _Rosen,_ Chicago, _IL,_ Donald Hubert, Hubert, Fowler _&_ Quinn, Chicago, IL, _for_ Gilbert _Cataldo._ Before RIPPLE, MANION, and EVANS, _Circuit_ Judges. TERENCE T. _EVANS,_ Circuit Judge. 1 _For_ 12 years, John Serpico _and_ Maria Busillo held and abused various influential positions with the Central States Joint Board _("CSJB"),_ a _labor_ organization that provides _support_ to its member unions. Among other responsibilities, Serpico and _Busillo_ _controlled_ the management of the unions' money. The pair, along with longtime friend _and_ business associate Gilbert Cataldo, collaborated on three schemes _involving_ _the_ misappropriation of the unions' funds. _Two_ of those schemes _are_ _the_ _focus_ of this _appeal_ _by_ Serpico _and_ Cataldo (Busillo has not appealed her conviction). 2 In _their_ "loans-for-deposits" scheme, Serpico _and_ Busillo deposited _large_ sums of _union_ _money_ _in_ various _banks._ _In_ exchange, the two _received_ overly generous terms and conditions _on_ personal loans totaling more than $5 million. _In_ the more complicated hotel loan _kickback_ scheme, several groups entered into the _51_ Associates Limited Partnership, which planned _to_ construct a hotel. _The_ partnership was _unable_ _to_ obtain financing _for_ the _construction_ of _the_ building without first securing a commitment for a mortgage loan that would guarantee repayment of _the_ construction loan after the _hotel_ was built. Serpico used union _funds_ _to_ make a _mortgage_ loan to the developers, after which _Mid-City_ Bank agreed to make the _construction_ loan. In exchange for Serpico's help _in_ securing the loan, 51 Associates paid $333,850 to Cataldo's corporation, Taylor West & Company, for "consulting services" that _Cataldo_ never actually _performed._ Cataldo then kicked back $25,000 _to_ Serpico by paying Serpico's share of a _$50,000_ investment _into_ _an_ _unrelated_ _business_ _project_ _(the_ _Studio_ Network project) _in_ which _the_ two _were_ partners. 3 Serpico, Busillo, _and_ Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At _the_ close of the evidence, the court granted motions by Serpico _and_ Busillo _for_ acquittal on the racketeering and bank _fraud_ counts. The jury convicted Serpico and Busillo _on_ mail _fraud_ charges relating to the loans-for-deposits scheme and Serpico and Cataldo on mail fraud _charges_ _for_ the hotel loan kickback scheme. 4 At sentencing, the district court determined that Serpico and Cataldo were each responsible for a loss of $333,850, _the_ _amount_ paid to Cataldo, for the _hotel_ loan kickback scheme. For the loans-for-deposits scheme, the court found the damage to the unions to be equal to the additional amount of interest the union assets would _have_ earned _had_ _Serpico_ purchased CDs at banks offering the highest _interest_ rates instead of those offering him _special_ deals on his personal loans. _The_ _court_ _totaled_ loans _from_ Capitol _Bank_ _as_ well as six _others,_ estimating the _loss_ to be between $30,000 and $70,000. The _court_ thus increased Serpico's base offense _level_ _of_ 6 by _9_ _levels,_ plus 2 levels for more than minimal planning _and_ 2 levels _for_ abuse of _trust_ (19 total). Serpico and Cataldo were _sentenced_ to 30 and 21 _months_ in prison, respectively. 5 _Serpico_ _and_ Cataldo (collectively _"Serpico"_ as we go forward) appeal, challenging _the_ verdicts and _the_ application _of_ the _sentencing_ guidelines on a number of _grounds._ In its cross-appeal, the government _also_ contests the application of the _sentencing_ guidelines. 6 _First,_ Serpico argues that _his_ convictions _should_ be overturned because his schemes did not "affect" a _financial_ _institution._ The 5-year statute _of_ limitations for mail and wire fraud offenses under 18 _U.S.C._ § 3282 is extended to 10 years "if the offense affects a financial institution," 18 _U.S.C._ § 3293(2), and Serpico could not have been prosecuted without that _extension._ Serpico claims that _an_ offense only _"affects_ a financial institution" if the offense has a direct negative impact on the institution. The district _court_ instructed the _jury_ that the schemes affected the banks if they "exposed the financial institution[s] to a new or _increased_ _risk_ _of_ loss. A financial institution _need_ not have _actually_ suffered a loss in order _to_ have _been_ affected by the scheme." 7 Although Serpico agreed to the _jury_ instruction, he now _points_ to United States v. Agne, 214 F.3d _47,_ 53 _(1st_ Cir.2000) and United States v. Ubakanma, 215 F.3d 421, 426 (4th _Cir.2000),_ to support his claim that the financial _institution_ must suffer _an_ actual loss. _In_ Agne, however, the court found _that_ the bank _"experienced_ no realistic prospect of loss," so it did not have to reach the question of _whether_ the bank must suffer an actual loss. Agne, 214 F.3d at 53. Similarly, Ubakanma simply held _that_ "a wire fraud offense under section 1343 `affected' _a_ financial _institution_ _only_ if the institution itself were victimized by the fraud, as _opposed_ to the scheme's mere utilization _of_ the financial institution in _the_ transfer of _funds."_ Ubakanma, 215 F.3d at 426. Neither _side_ _here_ argues _that_ "mere utilization" _is_ _sufficient;_ the _question_ is whether an _increased_ risk of loss is enough, even _if_ _the_ institution never suffers an actual loss. 8 Several courts, including this one _and_ the Fourth _Circuit,_ which produced Ubakanma, have concluded that _an_ increased risk of loss is sufficient _in_ similar contexts. See, e.g., United States _v._ _Longfellow,_ 43 F.3d 318, _324_ _(7th_ Cir.1994) _(quoting_ _United_ States _v._ Hord, 6 F.3d _276,_ _282_ (5th Cir.1993) ("risk of loss, _not_ just loss itself, supports conviction" for bank fraud)); United States v. Colton, 231 F.3d _890,_ _907_ (4th Cir.2000); _see_ _also_ Pattern _Criminal_ _Federal_ Jury Instructions for the _Seventh_ _Circuit_ (1990), p. _217_ (The mail interstate carrier _wire_ fraud _statute_ "can be violated whether or not there is _any_ [loss or _damage_ to the victim of the crime] _[or]_ [gain _to_ the defendant]."). 9 _More_ _importantly,_ the whole purpose of _§_ 3293(2) is to protect financial institutions, a goal it tries to accomplish _in_ large part by deterring would-be criminals from including _financial_ institutions in _their_ _schemes._ Just as society punishes someone _who_ _recklessly_ _fires_ a gun, _whether_ or not _he_ hits anyone, _protection_ for financial _institutions_ _is_ _much_ more effective if there's a cost _to_ putting those institutions at risk, whether _or_ not there is actual harm. Accordingly, we find no error in the district court's jury _instruction._ 10 Serpico _next_ argues that, even if the district court correctly interpreted § _3292(2),_ his schemes did not "affect" a financial _institution_ because they did _not_ _create_ increased _risks_ _for_ _the_ banks involved in the _schemes._ _Essentially,_ Serpico claims that the banks in both schemes were willing participants who would not have chosen _to_ _participate_ unless it was in their best _interests_ (that _is,_ _factoring_ in the risks, they expected _to_ make money on the deals). But _the_ mere fact _that_ participation in a scheme is in _a_ bank's best interest _does_ not _necessarily_ mean that it _is_ not exposed to additional risks _and_ is not _"affected,"_ as shown clearly by the various banks' dealings with Serpico. _11_ For example, the _hotel_ loan kickback scheme affected Mid-City even _though_ Mid-City believed _it_ _would_ make money on the deal. Mid-City made a $6.5 million construction loan, one it _obviously_ would not have made if it believed the risks associated _with_ the loan outweighed the expected payoff. But the loan, _as_ all loans do, did carry _some_ risk. Since Mid-City did _not_ want _to_ be a long-term real _estate_ lender, it agreed to the _loan_ only after Serpico _misappropriated_ Midwest Pension Plan ("MPP") funds _in_ making the MPP's $6.5 million end-mortgage _loan_ (which _meant_ that, if _all_ went well, Mid-City would _quickly_ be _repaid)._ Therefore, Mid-City never would have been exposed to the risks of its loan _absent_ Serpico's scheme because it never would have made _the_ loan. 12 _Serpico_ responds that MPP's $6.5 million essentially guaranteed the _loan,_ _so_ there was no risk to Mid-City. _But,_ under the terms _of_ _the_ loan, if the hotel _was_ not completed on time and _under_ budget, the money _MPP_ put up would be returned to it. _That_ _would_ leave Mid-City _with_ a risky _long-term_ loan it didn't want. On _top_ of that, the _kickback_ scheme increased the _chances_ _that_ the project would
313 F.Supp. 337 (1970) Margaruite J. BRANCH, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant. Civ. A. No. T-4561. United States District Court, D. Kansas. April 22, 1970. 338 339 340 Reginald LaBunker, Topeka, Kan., for plaintiff. Robert J. Roth, U. S. Atty., Elmer Hoge, Asst. U. S. Atty., Topeka, Kan., for defendant. MEMORANDUM OF DECISION TEMPLAR, District Judge. This proceeding was instituted by plaintiff against the Secretary of Health, Education and Welfare as is authorized by and pursuant to Section 205(g) of the Social Security Act, 42 U. S.C. § 405(g), for the purpose of obtaining a judicial review of a final decision of the Secretary denying her application for disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. § 416(i) and 423. An affidavit being filed, this Court, on April 25. 1969, entered an order granting plaintiff leave to sue forma pauperis without securing costs. Both parties in this action have submitted motions for summary judgment together with briefs to support their respective positions. The plaintiff filed her application to establish a period of disability on February 28, 1968, as provided in Section 416(i), and for disability insurance benefits, as provided under Section 423 of the Act. Claimant alleged, in substance, that she became unable to work because of a badly sprained back on September 23, 1967. The application was denied initially and on reconsideration. On December 11, 1968, a hearing was conducted before the hearing examiner of the department, at which the plaintiff was present without an attorney. The hearing examiner filed his decision denying plaintiff's application on December 30, 1968. The appeals Council upheld the decision of the hearing examiner upon the plaintiff's request for review. The hearing examiner's decision became the final decision of the Secretary of Health, Education and Welfare. The claimant will meet the earnings requirement until June 30, 1972. The hearing examiner determined that, in view of the claimant's limited education and age, training for sedentary work would not be profitable for her. In his determination that the claimant is not entitled to a period of disability or to disability insurance benefits, the hearing examiner made the following findings: "FINDINGS OF FACT "1. The claimant is approximately 59 years of age and she has an eighth grade education. "2. The claimant has worked as a laundry worker, waitress, maid, and nurse's aide. "3. In September 1967 the claimant began to suffer from back pain and she was treated for the condition at St. Francis Hospital, Topeka, Kansas. "4. Orthopedic examination of the claimant's back in May 1968 resulted in a diagnosis of mild musculoligamentous strain residuals with underlying mild lumbar degenerative joint disease. "5. The claimant has not attempted to secure work since leaving her employment with the A. T. & S. F. Hospital, Topeka, Kansas, in 1967. "6. While the claimant's back condition has possibly prevented her from returning to work as a maid, she has not been prevented from working as a waitress, laundry helper, or nurse's aide for a period of twelve months or more and she is currently able to engage in this type of activity. "CONCLUSION OF LAW "The claimant has not been prevented from engaging in substantial, gainful activity for a period of twelve months 341 or more at any time prior to the date of this decision and she is presently able to work as a waitress, laundry helper, or nurse's aide." (Record P. 9, 10). The primary issue before this Court is whether or not there is substantial evidence to support the Secretary's decision that plaintiff was not entitled to a period of disability or to disability insurance benefits and specifically whether plaintiff has been unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. The definition of disability set forth in § 423(d) (1) provides: "(d) (1) The term `disability' means (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * ." "(2) For purposes of paragraph (1) (A) (A) an individual * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. * * " * * * * * "(3) For purposes of this subsection, a `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." * * * * * * "(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require." The word "any" as used in the phrase "any substantial gainful activity" must be read in light of what is reasonable and not what is merely conceivable. See Huneycutt v. Gardner, 282 F.Supp. 405 (M.D.N.C.1968). This Court recognizes that judicial review of final decisions of the Secretary is a defined and limited one. See Folsom v. O'Neal, 250 F.2d 946 (10th Cir. 1957); Gordon v. Celebrezze, 253 F.Supp. 779 (D.Kan.1965); Jones v. Celebrezze, 246 F.Supp. 701 (D.Kan. 1965); and Shonk v. Gardner (Templar, J., No. T-4354, unreported). The Court pointed out in Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir. 1966), that findings of fact by the Secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, "if there is substantial evidence to support them. Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. See Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). This Court is aware of the principle that the Act should be construed liberally in favor of a party seeking its benefits. See Davidson v. Gardner, *342 370 F.2d 803 (6th Cir. 1966); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir. 1965); and Ketcherside v. Celebrezze, 209 F.Supp. 226 (D.Kan.1962). It is clear that a court is not to try a case de novo and that it must not abdicate its traditional function to scrutinize the entire record in order to determine whether the conclusions made by the Secretary are rational and if the court should determine that reliance has been placed upon one portion of the record in disregard of overwhelming evidence to the contrary, then the court is bound to modify or reverse the Secretary's findings with or without remanding the case for rehearing. See Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964) and Burrell v. Finch, 308 F.Supp. 264 (D. Kan.1969). The plaintiff's age, education, training, experience, and physical and mental capabilities are of considerable importance in determining her rights to disability benefits under the Act. See Ellerman v. Flemming, 188 F.Supp. 521 (D.Mo.1960) and Aniol v. Flemming, 188 F.Supp. 233 (D.Kan.1960). The record discloses that claimant resides at 627 W. 17th Topeka, Kansas, has a seventh grade education, and was approximately 59 years of age at the time of the hearing. There is some discrepancy as to the level of education attained by the claimant. Although the hearing examiner found that the claimant had an eighth grade education, the claimant testified that she had finished the seventh grade. In her request for reconsideration (Record P. 67) the claimant stated that she had only an eighth grade education, and Dr. Miller made reference to the eighth grade in one of his reports (Record P. 51). The claimant testified that she is married, but separated, and has eight children living. (Record P. 21). The claimant's past work record may be summarized as follows: waitress for a number of years; nurse's aide; worked for a laundry as an ironer; and worked as a	313 f. supp. 337 ( 1970 ) margaruite j. branch, plaintiff, v. robert h. finch, secretary of health, education and welfare, defendant. civ. a. no. t - 4561. united states district court, d. kansas. april 22, 1970. * 338 * 339 * 340 reginald labunker, topeka, kan., for plaintiff. robert j. livingston, u. s. atty., elmer hoge, asst. u. s. atty., topeka, kan., for defendant. memorandum of decision templar, district judge. this proceeding was instituted pending plaintiff against the secretary of health, education and welfare as is authorized by and pursuant to section 205 ( g ) of the social security act, 42 u. s. c. 2d 405 ( g ), for the purpose of obtaining a judicial review concerning a final decision of the secretary denying her application for disability insurance benefits under sections 216 ( i ) and 223 of the act, 42 u. s. c. § 416 ( i ) and 423. an affidavit being filed, this court, on april 25. 1969, entered an order granting plaintiff leave to sue forma disability without securing costs. both parties in this action have submitted motions for summary judgment together with briefs to support their respective positions. the plaintiff filed her application to undergo a period of disability on february 28, 1968, as provided in section 416 ( i ), and for disability insurance benefits, as provided under section 423 of the act. claimant alleged, in substance, that she became unable to work because of a badly sprained back on september 23, 1967. the application was denied initially and on reconsideration. on december 11, 1968, a hearing was conducted before the hearing examiner of the department, at which the plaintiff was present without an argument. the hearing examiner filed his decision denying recipient ' s application on december 30, 1968. the appeals council upheld the decision of the hearing examiner upon the plaintiff ' s request for review. the hearing examiner ' s decision became the final request of the secretary of science, education and welfare. the claimant will meet the earnings requirement until june 30, 1972. the hearing examiner determined that, in view of the claimant ' s limited education and age, training for sedentary work would not be profitable for her. in his determination that the claimant is not entitled to a period of disability or to disability insurance benefits, the hearing examiner made the following findings : " findings of fact " 1. the claimant is approximately 59 years of age and she has an eighth grade education. " 2. the claimant has worked as a laundry worker, waitress, maid, and nurse ' s aide. " 3. in september 1967 the claimant began to suffer from back pain and she was treated for the condition at st. francis hospital, topeka, kansas. " 4. orthopedic examination of the claimant ' s back in may 1968 resulted in a diagnosis of mild musculoligamentous strain residuals with underlying mild lumbar degenerative joint disease. " 5. the claimant has not attempted to secure work since leaving her employment with the a. t. & s. f. hospital, topeka, kansas, in 1967. " 6. while the claimant ' s back condition has possibly prevented her from returning to work as a maid, she has not been prevented from working as a waitress, laundry helper, or nurse ' s aide for a period of twelve months or more and she is currently able to engage in this type of activity. " conclusion of law " the claimant has not been prevented from engaging in substantial, gainful activity for a period of twelve months * 341 or more at any time prior to the date of this decision and she is presently able to work as a waitress, laundry helper, or nurse ' s aide. " ( record p. 9, 10 ). the primary issue before this court is whether or not there is substantial evidence to support the secretary ' s decision that plaintiff was not entitled to a period of disability or to disability insurance benefits and specifically whether plaintiff has been unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. the definition of disability set forth in § 423 ( d ) ( 1 ) provides : " ( d ) ( 1 ) the term ` disability ' means ( a ) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * . " " ( 2 ) for purposes of paragraph ( 1 ) ( a ) ( a ) an individual * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. * * * " * * * * * * " ( 3 ) for purposes of this subsection, a ` physical or mental impairment ' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. " * * * * * * " ( 5 ) an individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the secretary may require. " the word " any " as used in the phrase " any substantial gainful activity " must be read in light of what is reasonable and not what is merely conceivable. see huneycutt v. gardner, 282 f. supp. 405 ( m. d. n. c. 1968 ). this court recognizes that judicial review of final decisions of the secretary is a defined and limited one. see folsom v. o ' neal, 250 f. 2d 946 ( 10th cir. 1957 ) ; gordon v. celebrezze, 253 f. supp. 779 ( d. kan. 1965 ) ; jones v. celebrezze, 246 f. supp. 701 ( d. kan. 1965 ) ; and shonk v. gardner ( templar, j., no. t - 4354, unreported ). the court pointed out in gardner v. bishop, 362 f. 2d 917, 919 ( 10th cir. 1966 ), that findings of fact by the secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, " if there is substantial evidence to support them. substantial evidence has been defined as ` such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ' " stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. if there is only a slight preponderance of the evidence on one side or the other, the secretary ' s finding should be affirmed. see underwood v. ribicoff, 298 f. 2d 850, 851 ( 4th cir. 1962 ). this court is aware of the principle that the act should be construed liberally in favor of a party seeking its benefits. see davidson v. gardner, * 342 370 f. 2d 803 ( 6th cir. 1966 ) ; dvorak v. celebrezze, 345 f. 2d 894 ( 10th cir. 1965 ) ; and ketcherside v. celebrezze, 209 f. supp. 226 ( d. kan. 1962 ). it is clear that a court is not to try a case de novo and that it must not abdicate its traditional function to scrutinize the entire record in order to determine whether the conclusions made by the secretary are rational and if the court should determine that reliance has been placed upon one portion of the record in disregard of overwhelming evidence to the contrary, then the court is bound to modify or reverse the secretary ' s findings with or without remanding the case for rehearing. see thomas v. celebrezze, 331 f. 2d 541 ( 4th cir. 1964 ) and burrell v. finch, 308 f. supp. 264 ( d. kan. 1969 ). the plaintiff ' s age, education, training, experience, and physical and mental capabilities are of considerable importance in determining her rights to disability benefits under the act. see ellerman v. flemming, 188 f. supp. 521 ( d. mo. 1960 ) and aniol v. flemming, 188 f. supp. 233 ( d. kan. 1960 ). the record discloses that claimant resides at 627 w. 17th topeka, kansas, has a seventh grade education, and was approximately 59 years of age at the time of the hearing. there is some discrepancy as to the level of education attained by the claimant. although the hearing examiner found that the claimant had an eighth grade education, the claimant testified that she had finished the seventh grade. in her request for reconsideration ( record p. 67 ) the claimant stated that she had only an eighth grade education, and dr. miller made reference to the eighth grade in one of his reports ( record p. 51 ). the claimant testified that she is married, but separated, and has eight children living. ( record p. 21 ). the claimant ' s past work record may be summarized as follows : waitress for a number of years ; nurse ' s aide ; worked for a laundry as an ironer ; and worked as a	313 F. Supp. 337 (1970) Margaruite J. BRANCH, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant. Civ. A. No. T - 4561. United States District Court, D. Kansas. April 22, 1970. * 338 * 339 * 340 Reginald LaBunker, Topeka, Kan. , for plaintiff. Robert J. Roth, U. S. Atty. , Elmer Hoge, Asst. U. S. Atty. , Topeka, Kan. , for defendant. MEMORANDUM OF DECISION TEMPLAR, District Judge. This proceeding was instituted by plaintiff against the Secretary of Health, Education and Welfare as is authorized by and pursuant to Section 205 (g) of the Social Security Act, 42 U. S. C. § 405 (g ), for the purpose of obtaining a judicial review of a final decision of the Secretary denying her application for disability insurance benefits under Sections 216 (i) and 223 of the Act, 42 U. S. C. § 416 (i) and 423. An affidavit being filed, this Court, on April 25. 1969, entered an order granting plaintiff leave to sue forma pauperis without securing costs. Both parties in this action have submitted motions for summary judgment together with briefs to support their respective positions. The plaintiff filed her application to establish a period of disability on February 28, 1968, as provided in Section 416 (i ), and for disability insurance benefits, as provided under Section 423 of the Act. Claimant alleged, in substance, that she became unable to work because of a badly sprained back on September 23, 1967. The application was denied initially and on reconsideration. On December 11, 1968, a hearing was conducted beDo4e the hearing examiner of the department, at which the plaintiff was present without an attorney. The hearing examiner filed his decision denying plaintiff ' s application on December 30, 1968. The appeals Council upheld the decision of the hearing examiner upon the plaintiff ' s request for review. The hearing examiner ' s decision became the final decision of the Secretary of Health, Education and Welfare. The claimant will meet the earnings requirement until June 30, 1972. The hearing examiner determined that, in view of the claimant ' s limited education and age, training for sedentary work would not be profitable for her. In his determination that the claimant is not entitled to a period of disability or to disability insurance benefits, the hearing examiner made the following findings: " FINDINGS OF FACT " 1. The claimant is approximately 59 years of age and she has an eighth grade education. " 2. The claimant has worked as a laundry worker, waitress, maid, and nurse ' s aide. " 3. In September 1967 the claimant began to suffer from back pain and she was treated for the condition at St. Francis Hospital, Topeka, Kansas. " 4. Orthopedic examination of the claimant ' s back in May 1968 resulted in a diagnosis of mild musculoligamentous strain residuals with underlying mild lumbar degenerative joint disease. " 5. The claimant has not attempted to secure work since leaving her employment with the A. T. & S. F. Hospital, Topeka, Kansas, in 1967. " 6. While the claimant ' s back condition has possibly prevented her from returning to work as a maid, she has not been prevented from working as a waitress, laundry helper, or nurse ' s aide for a period of twelve months or more and she is currently QbIe to engage in this type of activity. " CONCLUSION OF LAW " The claimant has not been prFventev from engaging in substantial, gainful activity for a period of twelve months * 341 or more at any time prior to the date of this decision and she is presently able to work as a waitress, laundry helper, or nurse ' s aide. " (Record P. 9, 10 ). The primary issue before this Court is whether or not there is substantial evidence to support the Secretary ' s decision that plaintiff was not entitled to a period of disability or to disability insurance benefits and specifically whether plaintiff has been unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. The definition of disability set forth in § 423 (d) (1) provides: " (d) (1) The term ` disability ' means (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * . " " (2) For purposes of paragraph (1) (A) (A) an individual * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he 18uld be hired if he applied for work. * * * " * * * * * * " (3) For purposes of this subsection, a ` physical or mental impairment ' is an impairment that results from anatoKifal, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. " * * * * * * " (5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require. " The word " any " as used in the phrase " any substantial gainful activity " must be read in light of what is reasonable and not what is merely conceivable. See Huneycutt v. Gardner, 282 F. Supp. 405 (M. D. N. C. 1968 ). TNjs Court recognizes that judicial review of final decisions of the Secretary is a defined and limited one. See Folsom v. O ' Neal, 250 F. 2d 946 (10th Cir. 1957 ); Gordon v. Celebrezze, 253 F. Supp. 779 (D. Kan. 1965 ); Jones v. Celebrezze, 246 F. Supp. 701 (D. Kan. 1965 ); and Shonk v. Gardner (Templar, J. , No. T - 4354, unreported ). The Court pointed out in Gardner v. Bishop, 362 F. 2d 917, 919 (10th Cir. 1966 ), that findings of fact by the Secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, " if there is substantial evidence to Au9port them. Substantial evidence has been defined as ` such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ' " Stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary ' s finding should be affirmed. See Underwood v. Ribicoff, 298 F. 2d 850, 851 (4th Cir. 1962 ). This dou4t is aware of the principle that the Act should be construed liberally in favor of a party seeking its benefits. See Davidson v. Gardner, * 342 370 F. 2d 803 (6th Cir. 1966 ); Dvorak v. Celebrezze, 345 F. 2d 894 (10th Cir. 1965 ); and Ketcherside v. Celebrezze, 209 F. Supp. 226 (D. Kan. 1962 ). It is clear that a court is not to try a case de novo and that it must not aHdicxte its traditional function to scrutinize the entire record in order to determine whether the conclusions made by the Secretary are rational and if the court should determine that reliance has been placed upon one portion of the record in disregard of overwhelming evidence to the contrary, 5heG the court is bound to modify or reverse the Secretary ' s findings with or without remanding the case for rehearing. See Thomas v. Celebrezze, 331 F. 2d 541 (4th Cir. 1964) and Burrell v. Finch, 308 F. Supp. 264 (D. Kan. 1969 ). The plaintiff ' s age, education, training, experience, and physical and mental capabilities are of considerable importance in determining her rights to disability benefits under the Act. See Ellerman v. Flemming, 188 F. Supp. 521 (D. Mo. 1960) and Aniol v. Flemming, 188 F. Supp. 233 (D. Kan. 1960 ). The record discloses that claimant resides at 627 W. 17th Topeka, Kansas, has a seventh grade education, and was approximately 59 years of age at the time of the hearing. There is some discrepancy as to the level of education attained by the claimant. Although the hearing examiner found that the claimant had an eighth grade education, the claimant testified that she had finished the seventh grade. In her request for reconsideration (Record P. 67) the claimant stated that she had only an eighth grade education, and Dr. Miller made reference to the eighth grade in one of his reports (Record P. 51 ). The claimant testified that she is married, but separated, and has eight children living. (Record P. 21 ). The claimant ' s past work record may be summarized as follows: waitress for a number of years; nurse ' s aide; worked for a laundry as an ironer; and worked as a	313 F.Supp. 337 (1970) Margaruite BRANCH, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant. Civ. A. No. States District Court, D. Kansas. April 22, 1970. 338 339 340 Reginald LaBunker, Kan., for plaintiff. Robert J. Roth, U. S. Atty., Elmer Hoge, Asst. U. S. Atty., Topeka, Kan., for defendant. MEMORANDUM OF TEMPLAR, District Judge. This was instituted by plaintiff against the Secretary of Health, Education and as is by and pursuant to Section 205(g) of the Social Security Act, 42 S.C. § 405(g), for the purpose of obtaining a judicial review of a final of the denying her application for disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. 416(i) and 423. An affidavit being filed, this Court, April 25. 1969, an order granting plaintiff leave to sue forma pauperis without securing costs. in this have submitted motions for summary together with briefs to support their respective positions. The plaintiff filed her application to establish a period of disability on February 28, 1968, as provided in Section 416(i), and for disability insurance benefits, as provided under Section 423 of the Claimant alleged, in substance, became unable work of a badly sprained back on September 23, 1967. The application was denied initially and on reconsideration. On December 1968, a hearing was conducted the hearing the department, at which the plaintiff was present without an attorney. The hearing examiner filed his denying plaintiff's application December 30, 1968. The Council upheld the decision of the hearing examiner upon the plaintiff's for review. The hearing decision became the final decision of Secretary of Health, Education and Welfare. The claimant will meet the requirement June 30, 1972. The hearing examiner determined that, in view of the claimant's limited and age, training for sedentary work would not be profitable for In his determination that the is not to a period of disability or to disability insurance benefits, the examiner made the following OF "1. The claimant is 59 years of age and she has an eighth grade education. "2. The claimant has worked as a laundry worker, waitress, maid, and nurse's aide. "3. In September 1967 the claimant began to suffer from back pain and she was treated for the condition at St. Francis Hospital, Kansas. Orthopedic examination of the claimant's back May 1968 resulted in a diagnosis of mild musculoligamentous strain with underlying mild lumbar degenerative disease. "5. The claimant has attempted to secure work since leaving her employment with the A. T. & S. F. Hospital, Topeka, Kansas, in 1967. "6. While the claimant's back condition has prevented her from returning to work as a maid, not been prevented from working as a waitress, laundry helper, or aide for a period of months more and she is currently able engage in this type of activity. "CONCLUSION OF LAW "The claimant has not been prevented from engaging in substantial, gainful activity for a period of twelve months 341 or more at any time prior to the date of this decision she is able to work as a waitress, laundry helper, or nurse's aide." (Record P. 9, 10). The primary issue before is whether or not there substantial evidence to support the Secretary's decision that plaintiff was not entitled to a period of disability or to disability insurance and specifically whether plaintiff has been unable to engage in substantial gainful activity by reason of a medically physical or mental impairment which has lasted or can be expected to last for a continuous period of not less 12 months. The definition of disability set in § 423(d) provides: "(d) (1) The term `disability' means (A) inability to engage in any substantial gainful activity reason of any determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * ." "(2) For purposes of paragraph (1) (A) (A) an individual * * be to be under a disability only if physical or mental impairment impairments are of severity that is not only unable to do his previous work but cannot, considering education, and work experience, engage in any other kind of substantial gainful work which in the national economy, regardless of whether such work exists in area in he lives, or a specific job vacancy exists him, or he would be hired he applied for work. * * " * * * * "(3) purposes of this subsection, a `physical or mental impairment' is an impairment that results from anatomical, physiological, psychological abnormalities which are by acceptable clinical and laboratory diagnostic techniques." * * * * * * "(5) An individual shall not be considered to be under a unless he such medical and other evidence of the existence thereof as the Secretary may require." The word "any" as used in the "any gainful activity" must be read in light of what is reasonable and not what is merely conceivable. See v. Gardner, F.Supp. 405 (M.D.N.C.1968). This Court recognizes that judicial of decisions of the Secretary defined and limited one. See Folsom v. O'Neal, 250 F.2d 946 (10th Cir. 1957); Gordon v. Celebrezze, 253 F.Supp. 779 (D.Kan.1965); Jones v. Celebrezze, 246 F.Supp. (D.Kan. 1965); and Shonk v. Gardner (Templar, No. T-4354, unreported). Court pointed out in Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir. 1966), that findings of fact by the Secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, "if there is substantial evidence to them. Substantial has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to a when the conclusion sought to be drawn from it one of for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be See Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). This Court is aware of principle that Act should be liberally in favor of a party seeking its benefits. See Davidson 370 F.2d (6th Cir. 1966); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir. 1965); and v. Celebrezze, 209 F.Supp. 226 (D.Kan.1962). It is clear that a court is not to try case de novo and that it must not abdicate traditional function the entire record in order to determine whether conclusions made by are rational and if the court should determine that reliance has been upon one portion of the record in disregard of overwhelming evidence to the contrary, then the is bound to modify or the Secretary's findings with or remanding the for rehearing. See Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964) and Burrell v. Finch, 308 F.Supp. 264 (D. Kan.1969). The plaintiff's age, education, training, and physical and capabilities are of considerable importance in determining her rights to benefits Act. See Ellerman v. Flemming, 188 F.Supp. 521 (D.Mo.1960) and Aniol v. Flemming, 188 F.Supp. 233 (D.Kan.1960). The record discloses that claimant resides at W. 17th Topeka, Kansas, has a grade education, and was approximately years of age at the time of the hearing. There is some discrepancy as to the level of education attained by the claimant. Although hearing examiner found that the claimant had an eighth grade education, the claimant testified that she had finished seventh grade. In her request for reconsideration (Record P. 67) claimant stated that she had only an eighth grade education, and Dr. Miller made reference to the eighth grade in one of his reports (Record P. 51). The claimant testified that she is married, but separated, and has eight children living. (Record P. 21). The claimant's past work record may be summarized waitress for a number of years; nurse's aide; worked a laundry as an ironer; and a	313 f.SuPp. 337 (1970) mARGArUiTe J. bRanch, PlaintIff, V. RObert h. FINcH, seCRetaRy Of healtH, EDuCAtIoN AND weLFARe, DefEndanT. ciV. A. nO. t-4561. UNITeD sTAtes diStRict cOURT, D. kANsas. apRIl 22, 1970. 338 339 340 rEgiNald LabuNkeR, tOpEKA, KaN., fOR plAINtiFf. RoBErT J. rOth, U. S. aTTy., ELmER HOGE, asst. u. s. attY., TopEKA, kAN., FOR DEfendanT. mEMoraNDUm of DEcIsION TemPlAR, dIsTRIct judGE. THiS ProcEeding Was iNStitutEd By plaIntIFF AGAinsT ThE SECRetAry Of HeAlth, EDuCatIon anD welFAre aS is auThORized by aND PurSUAnt TO seCTION 205(g) Of the SOcIaL SeCUrity AcT, 42 u. s.C. § 405(G), FOr tHE PuRpOSE oF obTaINinG a jUDiCiaL rEvIew oF A fInAL DEciSIOn oF The SeCRETary dEnYiNG hER APPLiCAtion fOR dISaBiliTY inSUranCe beNeFItS uNDER SeCTIoNS 216(i) aNd 223 of tHe act, 42 U.S.C. § 416(I) aND 423. AN AffIDavit beiNG FILed, ThIs COURT, on apriL 25. 1969, EntErEd AN ORDER grAnTINg pLainTiFf LeAVe To SUE foRma PAuPeriS WitHout sEcURiNg coStS. Both PaRTies In ThIs aCtiON haVE sUbmitTED moTIONs FoR sUMMary jUDgMENT tOGEther WITh bRiefS TO sUppoRt tHeir RespEctIVe PosItiONS. thE pLainTiFf fIlEd HER apPlIcAtIon to EStaBLIsh a PeRIOD Of diSAbIliTY oN fEBrUarY 28, 1968, aS pROvIdeD iN SecTiON 416(i), aNd fOR disability INSURaNcE benefIts, AS prOvIdeD UNdeR SeCTiON 423 Of THe act. claImant AllegEd, In sUbStAnCe, tHat shE BECaME unABLE TO WoRK bECaUsE oF A badLY SPRaiNed BaCk on SEPTEMBeR 23, 1967. The aPPlICaTiOn WAs deNiED iNiTIally ANd On ReConSideRATIOn. on decEMBer 11, 1968, a hEARing WAS ConDUCteD beforE the HeArInG ExaMIneR OF the DEpARTment, at WhicH ThE PlaIntIFf WAs prEsenT WIThOuT An ATtornEY. ThE HEariNG EXaMinEr FiLed HIS DeciSiON dEnYing plaiNtIfF's APpLiCatIoN ON dECemBEr 30, 1968. ThE appeals couNcil uphelD THe deCISIOn of The HEArinG ExAMInER uPon the PLAIntIFf'S reQueST FoR ReVIEw. THE HEArInG exaMiner'S dECiSiON bEcaMe THE finAL DEciSIOn of ThE SeCrETary oF heAlTH, EdUCation aNd WelfARe. tHe CLAiMaNt wIlL MEEt THe eARNInGs rEquiREMEnt UnTIL JUNE 30, 1972. ThE hEaRinG eXAminEr DetERmINed tHat, In View Of THE CLaImANt'S LimITed edUcaTIoN And age, Training fOr sEdentarY WOrk wouLD not BE pRoFitabLE For heR. in hIS dETErMiNaTion That thE CLaIMAnt IS noT EnTITLed to A peRIoD OF DIsaBIlIty OR to diSABILIty iNsuRancE bEnEfIts, ThE HEArINg eXaminer mADE THe FoLlOWINg FInDingS: "FINDinGS Of faCT "1. THE claiMAnT is aPProxImATeLy 59 YeARS Of age AnD SHe has aN EiGHtH GrADE EDucatIon. "2. ThE cLaImaNT has WORKeD aS a LaUNdry WoRKeR, waiTREsS, MAId, and NUrsE'S aIDE. "3. iN sepTeMber 1967 tHe CLaImANT begAN TO suffER FroM BaCk pAiN AND She WAS TReATED fOr the COndiTIOn At St. fraNCiS hosPitaL, TOpekA, KANSaS. "4. oRtHOPedic exAMinaTIoN Of thE claIMAnt'S bacK in May 1968 rEsuLted IN A diAgnOsis Of MILd muSCUlOLIgameNTOUs StRaIN REsIDuals wiTh undeRLYinG mIld lumbAr degEneRAtIVE joinT DISEAsE. "5. THe ClaIMant HAs NOT AtteMpTED to secUrE woRk since LeaViNg heR EmpLoYMENt WitH tHe a. T. & S. F. HOSPItaL, TOpEkA, KansAs, in 1967. "6. wHILE tHE cLAImANT'S baCk coNdiTIoN haS PossiBly PReVENtED HEr FROM rEturnINg To wOrk aS a mAId, ShE Has noT bEen pRevEnTED fROM WoRkinG AS a wAITResS, LAundRy hElpeR, or nUrSe's AIdE fOr A PeRiOD oF TWeLve MOnTHS Or MORe ANd ShE Is cURrEnTlY ablE To ENgaGe In ThiS tYpe of AcTIvITy. "cOnCLusIOn OF laW "THe CLaIManT Has noT BEeN PRevENTED FrOM EnGaGinG iN SuBstanTIAl, gAinful aCtIviTY FOr a PERIOd OF twElVE mOnthS 341 or more AT anY TImE prIOR To THe daTe of This dECiSiON anD she Is PreSeNtly Able To woRk AS a wAItrEss, lAundRy HELper, or NUrsE's AIDe." (reCORD P. 9, 10). the PRIMaRy iSSUE BeFore THis cOuRT Is wHetHer OR nOT tHeRE is substantIAL EvidenCe To SUPporT tHE SEcretary's deCIsiON THaT plaiNtIff wAs NoT eNtITLEd tO A PerIoD Of dIsAbiliTy Or TO DISabilitY InsuRaNcE benefits ANd sPecIfICaLLY wHEThEr pLaintiFf HAS BeeN uNABlE to ENGAgE in sUbSTanTIaL GAinfuL ACtIvItY bY reASOn Of A medICaLly detERminABLe phYsIcaL or MeNtAl iMpAirmeNT which haS LASTed OR cAn Be eXpECteD tO LAST FOr A ContINuouS PeRiOD of Not LeSs ThaN 12 Months. The dEFIniTION of DISABiLiTy set FoRth IN § 423(D) (1) prOvIdeS: "(D) (1) thE tErm `diSabIlITY' MeANs (A) iNAbiliTY to EngAGe iN aNy SUBsTANtIaL GAiNfUl acTIViTy BY REasON OF aNy meDicAllY deTERmiNAbLe PhYSicAl OR MeNtal iMpAirMENt wHIcH cAN be EXpecTeD TO rEsuLt iN dEatH oR WHICH has laSteD oR Can BE expECteD tO LASt FoR a CONTInUouS pERIoD of not LeSs THAN 12 mONths * * ." "(2) FoR pUrPOSEs OF PaRAGrapH (1) (A) (a) An iNdiviDUal * * ShALL BE DeteRMIneD TO Be unDEr a dIsabiLITy ONLy if HIs PHySICal oR meNtAL iMPAIRMeNt oR iMPAirMents are Of Such sEverITY tHat he IS NOt only UnaBle tO DO HiS prEVIOUs work buT CAnNot, coNSidEriNG His AGE, EDUCaTiOn, and woRK eXpERIEncE, EnGAGE IN ANy othER kinD Of suBstAnTial gAINful wOrK WHICH ExISTS In thE NATIOnal ECoNOmy, REGARdlESS of WHEtheR such WOrK ExIStS IN tHE immediatE arEa IN whiCh He LivEs, Or Whether A SPeCIfIC Job VACANCy exISTS FOR Him, Or whetHer he WOULd Be hiRed iF hE APpLIEd foR WORk. * * " * * * * * "(3) for PURPOSeS of ThiS SubsecTIoN, a `PHySicaL OR MeNTAL ImPaIRment' Is an ImpairmenT ThaT RESults fROM aNATOMiCal, PHYsIOLOgicAl, oR psyCholOgicaL ABNORMaLiTIes Which arE deMonsTRaBLe by meDiCalLy accEptAblE CLINicaL AND LaBorAToRY diaGnOstIC TeChNIQUeS." * * * * * * "(5) An indiViduAl SHAll NOT BE coNSidEREd to BE uNdER a diSaBiLITY uNLesS He fURnISheS SuCh MEDicAl aNd OthER EVIDence Of thE exIStenCE tHerEof AS tHE SeCretARy MAY RequiRE." THe wOrd "ANY" AS useD in The PHRASe "aNY suBSTaNtIal gAinfUl ActIvity" mUst be REaD in LIGHt OF wHaT Is reaSonAbLe aNd nOt WHat iS MerElY CONceiVAbLE. SEe hUNEyCUtT v. GaRDner, 282 f.SuPP. 405 (M.D.n.c.1968). THIs COUrt RecOGnizeS thAT juDiciAL Review OF fInal deCiSIonS Of The SECReTarY is a definED aND LImIted ONe. see fOLSOm v. o'NEAL, 250 f.2d 946 (10Th cir. 1957); goRDon V. cELebrEzzE, 253 F.SUpp. 779 (D.KAN.1965); joNeS v. ceLEBREZze, 246 f.sUpP. 701 (d.kAn. 1965); and sHonk v. GARdnER (tEmpLar, J., nO. T-4354, UnREPorted). ThE CoUrT pOINTed Out in gArDneR v. biSHOp, 362 F.2D 917, 919 (10tH CiR. 1966), THat fiNDingS OF fact By The secretArY And ThE inFEreNces DrAwN From sucH FInDiNGs sHOUlD nOT Be disTuRBEd By a rEViEWING cOUrT, "iF thErE is sUbstAntIAl eVIDence To SUPpORt tHEm. sUbSTaNtiAL EvIDeNcE HAs beEn DeFined aS `sUch RelEVaNT EViDEnCe aS a REasOnaBLE mInD miGhT acCEpT As adEqUatE To sUpPoRT A CONcLUsioN.'" sTated in a difFEreNt maNNER ThE EvIDeNCE MusT BE suCH, if ThE Trial weRe TO A JurY, As wOuld JuStiFY a rEFUSAl to dIrECT A verdiCt WHeN tHe conCluSIoN SouGHt To be dRawN frOm It IS One oF fact FOR THe jUry. if TheRE Is ONlY A sLiGHT PREpoNDeraNce OF THE evidenCe on OnE SIdE oR ThE oThER, thE secrEtary's FINding shOULD be aFFiRmEd. seE UNdERWoOD v. riBiCOFf, 298 f.2d 850, 851 (4tH CIr. 1962). thIS couRT iS AwArE OF THE PrIncIPle ThAt THE Act sHOuLd be CONstRueD liberaLly In FAVor OF A paRty sEEKing ItS BeNEfIts. sEe dAvidSon V. GARDNEr, *342 370 F.2D 803 (6TH cir. 1966); DVORAk V. cElEbReZZE, 345 F.2D 894 (10th CIr. 1965); AND ketCHeRSiDe v. CelEbREzze, 209 f.SupP. 226 (D.Kan.1962). It iS CLeAr THAT A cOurt iS not to TRY a cAse DE noVO and THAt it MUST nOt AbdIcATE iTs trADItioNal FUNcTION to scRUTInIze tHE ENtIRe ReCord In ORdeR tO DETeRmiNE WhETHeR ThE coNClUSIONS maDE By THe SECRetAry are RAtiONaL And iF ThE cOuRT ShOUlD dETERMInE That ReLiaNcE Has beEn plACED UpOn one pOrtiOn oF THe rECoRd iN disrEgArd OF OVeRWHElMInG evIdEnCe to tHe coNtraRy, tHen THE cOURt is BoUnD To MOdIFY or RevErsE THe seCRetArY's fIndIngs witH OR withoUt rEmAnDINg The CasE for reHeaRiNg. SeE THoMas v. CelebrEzZE, 331 f.2D 541 (4tH CiR. 1964) anD burRElL V. fInCH, 308 f.Supp. 264 (d. kAN.1969). tHE PLAINtIFf's AGe, educAtion, TraininG, EXPeRIeNCE, ANd PhySicAl AnD mentAL capABILiTieS ARE Of cOnsidERabLE IMPorTANCE in DETeRmiNing hER riGhTS tO DISAbiLITy bENeFits undER tHe Act. SEE ELlERMAN v. fleMMIng, 188 F.supp. 521 (d.MO.1960) anD anIOL V. FLEmMing, 188 F.supP. 233 (D.kAn.1960). THE recOrD DIScLOses ThaT CLaimaNT rEsidES at 627 w. 17th topEKA, kAnSaS, HAS a SEVenth GRAde eDUcatIon, aND WAs aPpROXImATEly 59 YEARs Of aGE At the TIMe oF THe hEarING. THeRE Is soME DiScrEPaNCy As To tHE leVEl oF EdUCATiOn aTtaineD By tHe cLaimaNt. AlThoUGH THE hEarIng EXamInEr FounD tHaT THE ClAIManT haD An EiGhTh gRAdE eDucATIoN, the clAImANt tEStIFIED THAt shE haD fInIshed THe SevenTH gRAde. iN HEr reqUeSt FOR recONSIdERAtiOn (RECord p. 67) THe clAiMaNT STAtEd THAt shE haD oNlY An Eighth gRAde eDUcaTion, ANd DR. milLeR mADE RefEReNCE To The EIghtH Grade in OnE oF his rEpoRts (rEcOrD p. 51). THE claImaNt TesTiFiED ThAt SHE IS maRried, bUt sEparATed, ANd hAS eIght cHiLdreN LiviNg. (RECoRd p. 21). tHe clAiMaNT's PAsT wOrK ReCord MaY bE sUmMARizeD as fOlLows: waITrESS for a NumbER of yEArS; nURse's Aide; wORKED FOR a lAUndrY AS AN iRonER; and WoRkEd As A	313F.Supp. 337 (1970) Margaruite J. BRANCH, Plaintiff, v. Robert H. FINCH, Secretaryof Health, Education andWelfare, Defendant. Civ. A. No.T-4561. United States District Court, D. Kansas. April 22, 1970. 338 339340Reginald LaBunker, Topeka, Kan., for plaintiff. Robert J. Roth, U. S. Atty., Elmer Hoge, Asst. U.S. Atty., Topeka,Kan., for defendant. MEMORANDUM OF DECISION TEMPLAR,DistrictJudge. This proceeding was instituted by plaintiffagainst the Secretary of Health, Education and Welfare as is authorized by and pursuant to Section 205(g) of the Social Security Act, 42 U. S.C. § 405(g), for the purpose of obtaining ajudicial review of a final decision of the Secretary denying her application for disabilityinsurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. § 416(i) and423.An affidavit being filed, this Court, on April 25. 1969, entered an ordergranting plaintiffleaveto sue forma pauperiswithout securing costs. Both parties in this action have submitted motions for summary judgment together with briefs to support their respectivepositions. The plaintiff filedher application to establish a period of disability on February 28, 1968, as provided in Section 416(i),and for disability insurance benefits, as provided under Section423 ofthe Act.Claimant alleged, insubstance, that shebecame unable towork because of abadly sprained back on September 23, 1967.The application was denied initially and on reconsideration. OnDecember 11, 1968, ahearing was conducted beforethe hearing examiner of thedepartment, at which the plaintiff was present without an attorney. The hearing examiner filed hisdecision denying plaintiff's application on December30,1968. The appealsCouncil upheld the decision of the hearing examiner uponthe plaintiff'srequestfor review. The hearing examiner's decision became the final decisionof the Secretary of Health, Education and Welfare. The claimant will meetthe earnings requirement until June 30, 1972. The hearing examiner determined that, in view of the claimant's limited education and age, trainingfor sedentary work would not be profitable for her. In his determination that the claimant is notentitled to a period of disability or to disability insurance benefits, the hearing examiner made the following findings: "FINDINGS OF FACT "1. The claimant is approximately 59 years of age and she has an eighth grade education. "2. Theclaimant has worked as a laundry worker, waitress, maid, and nurse's aide. "3. InSeptember 1967 the claimant began to suffer from back pain and she was treatedfor the condition at St. Francis Hospital, Topeka,Kansas. "4. Orthopedic examination of the claimant's back in May 1968 resulted in a diagnosisof mild musculoligamentous strain residuals withunderlying mildlumbar degenerative jointdisease. "5. The claimant has not attempted to secure work since leavingher employment with the A. T. & S. F.Hospital, Topeka, Kansas, in 1967. "6. While theclaimant's back condition has possibly prevented her from returning to work as a maid, she has not been prevented from working as a waitress, laundry helper, or nurse's aide fora period of twelvemonths or more and she is currently able to engage in this type of activity. "CONCLUSION OF LAW "The claimanthas not been prevented from engaging in substantial, gainful activity for a period of twelve months 341 or more at anytime prior to the date ofthis decision and she is presently able to work as a waitress,laundry helper, or nurse's aide."(Record P. 9, 10). Theprimary issue before this Court is whether or notthereis substantial evidenceto support the Secretary's decisionthat plaintiff was not entitled to a period of disability or to disability insurancebenefits and specifically whether plaintiffhas been unable to engage in substantial gainful activity by reasonof a medically determinable physical or mental impairment whichhas lasted or can be expected to last for a continuous period of not less than 12 months.The definition of disability set forth in § 423(d) (1) provides: "(d) (1) The term `disability' means (A) inability toengage in any substantial gainful activity by reasonof any medicallydeterminable physical or mental impairment which can be expected to result in deathor which haslastedor can be expected to last for a continuousperiodof not less than 12months * ." "(2)Forpurposes of paragraph (1)(A) (A) an individual * shall be determined to be under a disabilityonlyif his physical or mental impairment or impairments are of such severitythat he is not only unable to do his previous workbut cannot, considering hisage, education, and work experience,engage in any other kind of substantial gainful work which existsin the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specificjob vacancy exists for him, or whether hewould behired if he appliedfor work.* * " * * * * * "(3) For purposes of this subsection, a `physical or mental impairment' is an impairmentthat results from anatomical,physiological, orpsychologicalabnormalities which are demonstrable by medically acceptable clinical andlaboratory diagnostic techniques." * * * * * * "(5) An individual shall not be considered to be undera disability unless he furnishes such medical and other evidence of theexistence thereof asthe Secretary may require." The word "any" asused in the phrase "any substantial gainful activity" mustbe readin light ofwhat is reasonable and not what is merely conceivable. See Huneycutt v. Gardner, 282 F.Supp.405 (M.D.N.C.1968). This Court recognizes that judicial review of final decisions of the Secretary is adefined and limited one. See Folsom v. O'Neal,250 F.2d946 (10th Cir. 1957); Gordonv. Celebrezze, 253 F.Supp. 779 (D.Kan.1965); Jones v. Celebrezze, 246F.Supp. 701 (D.Kan. 1965); and Shonk v. Gardner (Templar,J.,No. T-4354, unreported). TheCourt pointed out in Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir.1966), that findings offact by the Secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, "if there is substantial evidence to support them. Substantial evidence hasbeen definedas `such relevant evidence as a reasonable mind might accept as adequateto support aconclusion.'" Stated in a different manner the evidence mustbe such, if thetrial were to a jury,as would justify a refusalto direct a verdict when the conclusion sought tobedrawn from it is one of fact for the jury. If there is only aslight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. SeeUnderwood v. Ribicoff, 298 F.2d 850, 851(4th Cir. 1962).This Court is aware of the principle that the Act should beconstrued liberally in favor of a party seeking its benefits. See Davidson v. Gardner, *342 370F.2d 803 (6th Cir. 1966); Dvorakv. Celebrezze, 345 F.2d 894 (10th Cir. 1965); and Ketcherside v.Celebrezze,209 F.Supp. 226 (D.Kan.1962). It is clear that a court is not to trya casedenovo and that it must not abdicate its traditional function to scrutinize the entire record inorder todetermine whether the conclusions made by the Secretary arerational and if the court should determine thatreliance has been placed upon one portion of the record indisregard of overwhelming evidence to the contrary, then the court isbound to modify or reverse the Secretary'sfindingswith or without remanding the case for rehearing. See Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964) and Burrell v. Finch, 308 F.Supp.264 (D. Kan.1969). Theplaintiff's age, education, training, experience,and physical and mental capabilitiesare of considerable importance in determining her rights to disability benefitsunder the Act.See Ellerman v. Flemming, 188 F.Supp. 521 (D.Mo.1960) andAniol v. Flemming, 188 F.Supp. 233 (D.Kan.1960). The record disclosesthat claimant resides at 627 W. 17th Topeka, Kansas, hasa seventh grade education, and wasapproximately 59 yearsof ageat the time of the hearing. There is some discrepancy as to the level of education attainedby the claimant. Although the hearing examiner found that the claimant had an eighth grade education,the claimant testified that she had finished the seventh grade. In her request forreconsideration (Record P. 67)the claimant stated that she had only an eighth grade education, and Dr. Miller made reference to the eighth grade in one of his reports (Record P. 51). The claimant testified that she is married, but separated, andhas eight children living. (Record P. 21). The claimant's pastworkrecord may be summarized asfollows: waitress for a number of years; nurse'saide; worked for a laundry as anironer; and worked as a	_313_ F.Supp. 337 (1970) Margaruite J. BRANCH, _Plaintiff,_ v. Robert H. FINCH, Secretary of Health, _Education_ and Welfare, Defendant. _Civ._ A. No. T-4561. United _States_ District Court, D. Kansas. April 22, 1970. 338 _339_ 340 Reginald LaBunker, Topeka, Kan., for plaintiff. Robert J. Roth, U. S. Atty., Elmer _Hoge,_ Asst. U. S. Atty., _Topeka,_ Kan., for defendant. MEMORANDUM OF DECISION TEMPLAR, District _Judge._ This proceeding was instituted by _plaintiff_ against the Secretary of Health, Education and Welfare as is authorized _by_ _and_ pursuant to Section 205(g) of the _Social_ Security Act, 42 _U._ S.C. § 405(g), _for_ _the_ purpose of obtaining a judicial review _of_ _a_ final decision of the _Secretary_ denying her application for disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. § 416(i) and _423._ _An_ affidavit being filed, this Court, on April 25. 1969, entered an order granting _plaintiff_ leave to sue forma pauperis without securing _costs._ Both parties in this action have submitted _motions_ for summary judgment _together_ with briefs to support _their_ respective positions. The plaintiff filed her application to _establish_ a period of disability _on_ _February_ _28,_ 1968, as provided in _Section_ _416(i),_ and for disability insurance _benefits,_ as provided under Section 423 of the Act. _Claimant_ alleged, in substance, that she became unable to work because of _a_ badly sprained back on _September_ 23, 1967. The application was _denied_ _initially_ _and_ on reconsideration. On December _11,_ _1968,_ a _hearing_ was conducted before _the_ hearing examiner of the department, at which _the_ _plaintiff_ was present _without_ _an_ _attorney._ The _hearing_ examiner filed his _decision_ denying plaintiff's application _on_ December 30, 1968. _The_ appeals Council upheld _the_ _decision_ of the _hearing_ examiner upon the plaintiff's _request_ for _review._ The hearing examiner's decision became the final decision of the Secretary of _Health,_ Education and Welfare. The claimant _will_ meet the _earnings_ requirement until June 30, 1972. The hearing examiner determined that, in _view_ _of_ the claimant's limited education and _age,_ _training_ for sedentary work would not _be_ profitable for her. _In_ _his_ determination that the claimant is _not_ entitled _to_ a period of disability or to disability insurance benefits, the hearing examiner _made_ _the_ following _findings:_ "FINDINGS OF FACT "1. The _claimant_ is approximately 59 years of age and _she_ _has_ an eighth grade _education._ "2. The claimant has _worked_ _as_ a laundry _worker,_ waitress, maid, and nurse's aide. _"3._ In September 1967 the _claimant_ began to suffer from back pain and she was treated for the condition _at_ _St._ Francis Hospital, Topeka, Kansas. "4. Orthopedic examination of the claimant's _back_ in May _1968_ resulted in a diagnosis of mild musculoligamentous strain _residuals_ with underlying mild lumbar degenerative _joint_ disease. "5. The claimant has not attempted to secure work since leaving _her_ _employment_ with the A. T. & S. _F._ Hospital, Topeka, Kansas, in 1967. _"6._ While the claimant's back condition _has_ possibly prevented her from returning _to_ _work_ _as_ a maid, she has _not_ been prevented _from_ working as _a_ waitress, laundry helper, _or_ nurse's aide for a period of twelve months or _more_ and she is currently able to engage _in_ this type of activity. "CONCLUSION _OF_ LAW _"The_ claimant has not been prevented from engaging _in_ substantial, _gainful_ activity for a period _of_ twelve _months_ 341 or more at any time prior to the _date_ of this decision and she is presently able to work _as_ a waitress, laundry helper, _or_ nurse's aide." _(Record_ P. 9, 10). The primary issue before this Court is whether _or_ _not_ there is _substantial_ evidence to _support_ the _Secretary's_ decision that plaintiff _was_ not entitled to a period _of_ disability or to _disability_ insurance benefits and specifically whether plaintiff has been unable to engage in _substantial_ gainful activity by reason _of_ a _medically_ determinable physical or mental _impairment_ which has lasted or can be expected _to_ _last_ for _a_ _continuous_ _period_ _of_ not less than 12 months. The definition _of_ disability set forth in § 423(d) (1) provides: "(d) _(1)_ The term _`disability'_ means (A) _inability_ to engage _in_ any substantial gainful _activity_ by reason _of_ any _medically_ determinable physical or mental impairment which can be expected to result in death or which has lasted or can be _expected_ to last for a continuous period _of_ _not_ less _than_ 12 months * __ ." "(2) For purposes of _paragraph_ _(1)_ (A) (A) an _individual_ * * * shall be determined to _be_ under a disability only if his physical or mental impairment _or_ impairments are of _such_ severity that he _is_ not only unable to do _his_ previous work but cannot, considering _his_ age, education, and _work_ experience, engage in any other kind _of_ substantial _gainful_ _work_ which exists in the national economy, _regardless_ of whether such work exists in the immediate area in _which_ _he_ lives, or whether a specific job vacancy exists _for_ him, or whether he would be hired if _he_ applied for work. __ " __ * * * "(3) For purposes of this subsection, _a_ `physical _or_ mental impairment' _is_ an impairment that _results_ from anatomical, physiological, or psychological abnormalities which are _demonstrable_ by medically acceptable clinical and laboratory diagnostic techniques." * * * * * * "(5) An individual shall not _be_ considered to be under a disability unless he furnishes _such_ _medical_ and other evidence of the existence thereof as the Secretary may require." The word "any" _as_ _used_ _in_ the _phrase_ _"any_ substantial _gainful_ activity" must be read in light _of_ what is _reasonable_ and not what is merely conceivable. See Huneycutt v. Gardner, 282 F.Supp. 405 _(M.D.N.C.1968)._ This Court _recognizes_ _that_ judicial review of final decisions of _the_ Secretary is a defined and limited one. See Folsom v. O'Neal, _250_ _F.2d_ 946 (10th Cir. 1957); Gordon v. Celebrezze, 253 F.Supp. _779_ _(D.Kan.1965);_ Jones v. _Celebrezze,_ 246 F.Supp. _701_ _(D.Kan._ 1965); and Shonk v. _Gardner_ (Templar, J., No. T-4354, unreported). The Court pointed out in Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir. _1966),_ that findings of fact by the Secretary and _the_ inferences drawn _from_ such _findings_ _should_ not be disturbed _by_ a reviewing court, "if _there_ is _substantial_ _evidence_ to _support_ them. Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a _conclusion.'"_ _Stated_ in a different manner the evidence must be _such,_ if the trial were _to_ _a_ jury, _as_ would justify a refusal _to_ direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. _If_ there is only a slight preponderance of the evidence on one side or the _other,_ the _Secretary's_ finding should be _affirmed._ See Underwood v. Ribicoff, _298_ F.2d 850, 851 (4th _Cir._ _1962)._ This Court is aware of _the_ principle that _the_ Act should be construed liberally in favor _of_ a party seeking its benefits. _See_ Davidson v. _Gardner,_ *342 370 F.2d 803 _(6th_ Cir. 1966); Dvorak v. Celebrezze, 345 _F.2d_ 894 (10th _Cir._ 1965); _and_ _Ketcherside_ _v._ Celebrezze, 209 F.Supp. 226 (D.Kan.1962). It is clear that a court is not to try _a_ _case_ de novo and that it must not abdicate its _traditional_ function to scrutinize the entire record in order to determine _whether_ the _conclusions_ made _by_ the Secretary _are_ rational and _if_ the court _should_ determine that _reliance_ has been _placed_ upon one portion of the record in _disregard_ of overwhelming _evidence_ to _the_ contrary, then the court _is_ bound to _modify_ or reverse the Secretary's findings with or _without_ _remanding_ _the_ case for rehearing. _See_ Thomas v. Celebrezze, _331_ F.2d 541 (4th _Cir._ 1964) and Burrell v. _Finch,_ 308 F.Supp. 264 (D. Kan.1969). The plaintiff's age, education, training, experience, and physical and mental _capabilities_ are of considerable importance in determining _her_ _rights_ to _disability_ _benefits_ under the Act. See _Ellerman_ _v._ Flemming, 188 F.Supp. 521 (D.Mo.1960) and Aniol v. Flemming, 188 F.Supp. _233_ (D.Kan.1960). The record _discloses_ _that_ claimant resides at 627 W. 17th Topeka, Kansas, has a seventh grade _education,_ and was approximately _59_ years of age at the time of the hearing. There _is_ some _discrepancy_ as to _the_ level _of_ _education_ attained by the _claimant._ Although the hearing _examiner_ found that the claimant had an eighth grade education, the _claimant_ testified that she _had_ finished the seventh grade. In her request for reconsideration (Record P. 67) the _claimant_ stated that _she_ _had_ only _an_ eighth grade education, _and_ Dr. _Miller_ made reference to the eighth grade in _one_ of his _reports_ (Record P. _51)._ The _claimant_ testified that she is married, but _separated,_ and has eight children living. (Record P. _21)._ The claimant's past _work_ record may be _summarized_ _as_ follows: waitress for a number of years; _nurse's_ aide; _worked_ for a laundry _as_ an _ironer;_ and worked _as_ a
638 So.2d 176 (1994) Vickie BROADWAY and Husband Michael E. Broadway, Appellants, v. BAY HOSPITAL, INC., d/b/a HCA Gulf Coast Hospital, Appellee. No. 92-2337. District Court of Appeal of Florida, First District. June 14, 1994. Edmund D. Quintana of Burke & Blue, P.A., Panama City, for appellants. Ann J. Tipton of Baker, Duke & Tipton, P.A., Pensacola, for appellee. *177 PER CURIAM. This cause is before us on appeal from a final order dismissing appellants' second amended complaint with prejudice. Appellants contend (1) that the trial court erred in finding that they were required to comply with the presuit screening requirements of chapter 766, Florida Statutes, for medical malpractice claims; (2) that their compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing their complaint; and (3) that section 766.203(2), Florida Statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the plaintiff provide notice of the claim and a corroborating expert opinion, is unconstitutional. We reverse as to the first issue and, consequently, do not reach the second and third issues. The second amended complaint alleged that plaintiff/appellant Vickie Broadway was a patient at appellee's hospital in July 1989 and was injured when her hospital bed collapsed. Appellants sought damages based on appellee's breach of its duty to use reasonable care in maintaining its premises and breach of its duty to warn Ms. Broadway of latent hazards. Appellee sought dismissal of the complaint on the ground that the complaint stated a claim for medical negligence and that appellants had failed to comply with the presuit screening requirements of chapter 766, Florida Statutes. The trial court entered an order dismissing the complaint with prejudice under section 766.206(2), Florida Statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766. Under section 766.106(1)(a), Florida Statutes, "claim for medical malpractice" is defined as "a claim arising out of the rendering of, or the failure to render, medical care or services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766.102(1), Florida Statutes. The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1), Florida Statutes. Weinstock v. Groth, 629 So.2d 835 (Fla. 1993), citing NME Properties, Inc. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991). Not every wrongful act by a health care provider amounts to medical malpractice. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993). From the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care. We hold that the trial court erred in dismissing the complaint. We reject appellee's contention that Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla. 3d DCA 1984), requires affirmance of the order below. In Neilinger, the complaint alleged that the plaintiff, a maternity patient, slipped and fell on a pool of amniotic fluid while descending from an examination table under the direction and care of employees of the hospital. The complaint on its face alleged breach of a professional standard of care. The order appealed from is therefore reversed, and this cause is remanded for proceedings consistent herewith. BOOTH, JOANOS and MINER, JJ., concur.	638 so. 2d 176 ( 1994 ) vickie broadway and husband michael e. broadway, appellants, v. bay hospital, inc., d / b / a hca gulf coast hospital, appellee. no. 92 - 2337. district court of appeal of florida, first district. june 14, 1994. edmund d. quintana of burke & blue, p. a., panama city, for appellants. ann j. tipton at brunswick, duke & tipton, p. a., pensacola, for appellee. * 177 per curiam. this cause is before us on appeal from a final order dismissing appellants ' second amended complaint with prejudice. appellants contend ( 1 ) that the trial court erred in finding that they were required to comply with the presuit screening requirements of chapter 766, florida statutes, for medical malpractice claims ; ( 2 ) that their compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing their complaint ; and ( 3 ) that section 766. 203 ( 2 ), florida statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the police provide notice of the claim and a corroborating expert opinion, is unconstitutional. we reverse as to the first issue and, consequently, do not reach the second and third issues. the second amended complaint alleged by plaintiff / appellant vickie broadway was a patient at appellee ' s hospital in july 1989 and was killed when her hospital bed collapsed. appellants sought damages based on appellee ' s breach of its duty to use reasonable care before maintaining its premises and breach of its duty to warn ms. broadway of bodily hazards. appellee sought dismissal of the complaint on the ground that the complaint stated a claim for medical negligence and that appellants had failed to comply with the reasonable screening requirements of chapter 766, florida statutes. the trial court entered an order dismissing the complaint with prejudice under section 766. 206 ( 2 ), florida statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766. under section 264. 106 ( 1 ) ( a ), florida statutes, " claim for medical damages " is defined as " a claim arising out of the rendering of, or the failure to render, medical care or services. " a person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766. 102 ( 1 ), florida statutes. the test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766. 106, florida statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766. 102 ( 1 ), florida statutes. weinstock v. groth, 629 so. 2d 835 ( fla. 1993 ), citing nme properties, inc. mccullough, 590 so. 2d 439 ( fla. 2d dca 1991 ). not every wrongful act by a health care provider amounts to medical malpractice. stackhouse v. emerson, 611 so. 2d 1365 ( fla. 5th dca 1993 ). from the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care. we hold that the trial court erred in dismissing the complaint. we reject appellee ' s contention that neilinger v. baptist hospital of miami, inc., 460 so. 2d 564 ( fla. 3d dca 1984 ), requires affirmance of the order below. in neilinger, the complaint alleged that the plaintiff, a maternity patient, slipped and fell on a pool of amniotic fluid while descending from an examination table under the direction and care of employees of the hospital. the complaint on its face alleged breach of a professional standard of care. the order appealed from is therefore reversed, and this cause is remanded for proceedings consistent herewith. booth, joanos and miner, jj., concur.	638 So. 2d 176 (1994) Vickie BROADWAY and Husband Michael E. Broadway, Appellants, v. BAY HOSPITAL, INC. , d / b / a HCA Gulf Coast Hospital, Appellee. No. 92 - 2337. District Court of Appeal of Florida, First District. June 14, 1994. Edmund D. Quintana of Burke & Blue, P. A. , Panama City, for appellants. Ann J. Tipton of Baker, Duke & Tipton, P. A. , Pensacola, for appellee. * 177 PER CURIAM. This cause is before us on appeal from a final order dismissing appellants ' second a,endeE complaint with prejudice. Appellants contend (1) tySt the trial court erred in finding that they were required to comply with the presuit screening requirements of chqp%er 766, Florida Statutes, for medical malpractice claims; (2) that their compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing their complaint; and (3) that section 766. 203 (2 ), Florida Statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the plaintiff provide notice of the claim and a corroborating expert opinion, is unconstitutional. We reverse as to the first issue and, consequently, do not reach the second and third issues. The second amended complaint alleged that plaintiff / appellant Vickie Broadway was a patient at appellee ' s hospital in July 1989 and was injured when her hospital bed collapsed. Appellants sought damages based on appellee ' s breach of its duty to use reasonable care in maintaining its premises and breach of its duty to warn Ms. Broadway of latent hazards. Appellee sought dismissal of the complaint on the ground that the complaint stated a claim for medical negligence and that appellants had fZilew to comply with the presuit screening requirements of chapter 766, Florida Statutes. The trial court entered an order dismissing the complaint with prejudice under section 766. 206 (2 ), FloT9da Statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766. Under section 766. 106 (1) (a ), Florida Statutes, " claim for medical malpractice " is defined as " a claim arising out of the rendering of, or the failure to render, medical care or services. " A person e2eking recovery for injury resulting from medical mxlpracticR must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766. 102 (1 ), Florida Statutes. The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766. 106, Florida Statutes, is whether the defendant is directly or vicariously liable ^nser the medical negligence standard of care set forth in section 766. 102 (1 ), Florida Statutes. Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993 ), citing NME Properties, Inc. McCullough, 590 So. 2d 439 (Fla. 2d DCA 1991 ). Not every wrongful act by a health care provider amounts to medical malptacticd. Stackhouse v. Emerson, 611 So. 2d 1365 (Fla. 5th DCA 1993 ). From the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care. We hold that the trial court erred in dismissing the complaint. We reject appellee ' s contention that Neilinger v. Baptist Hospital of Miami, Inc. , 460 So. 2d 564 (Fla. 3d DCA 1984 ), requires affirmance of the order below. In Neilinger, the complaint alleged that the plaintiff, a maternity 9atoent, slipped and fell on a pool of amniotic fluid while descending from an examination table under the direction and care of employees of the hospital. The complaint on its face alleged breach of a professional standard of care. The order appealed from is therefore reversed, and this cause is remanded for proceedings consistent herewith. BOOTH, JOANOS and MINER, JJ. , concur.	638 So.2d 176 (1994) Vickie BROADWAY and Husband Michael E. Broadway, Appellants, v. BAY HOSPITAL, INC., d/b/a HCA Coast Hospital, Appellee. No. District Court of Appeal of Florida, First District. June 14, Edmund D. Quintana of Burke & Blue, P.A., Panama City, for appellants. J. of Baker, Duke & Tipton, P.A., Pensacola, for appellee. *177 PER CURIAM. This cause is before us on appeal a final order dismissing appellants' second amended complaint with prejudice. Appellants contend (1) that the trial court erred in finding they were required to comply with the presuit screening requirements of chapter 766, Florida Statutes, medical malpractice claims; (2) that their compliance with the presuit screening requirements was sufficient such the trial court erred in dismissing their complaint; and (3) that section 766.203(2), Florida Statutes, which imposes as a condition to the filing of a medical claim that the plaintiff provide notice of the claim a corroborating expert opinion, unconstitutional. We reverse as to the first and, not reach the second and third issues. The amended complaint alleged that plaintiff/appellant Vickie Broadway was a patient appellee's hospital in July 1989 and injured when her hospital bed collapsed. Appellants sought damages based on breach of its duty reasonable care in maintaining its premises breach of its duty to warn Ms. Broadway latent hazards. Appellee sought dismissal of the on the ground that the complaint stated claim for medical negligence that appellants had failed to comply with the presuit screening requirements of 766, Statutes. The trial court entered an order dismissing the complaint prejudice under section 766.206(2), Florida Statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766. Under section 766.106(1)(a), Florida Statutes, "claim for medical malpractice" defined as "a claim arising out of the rendering of, or the failure to render, medical care or services." A person seeking recovery for resulting from medical malpractice must prove that the injury resulted from a breach the prevailing professional of care as set forth section 766.102(1), Florida The test for determining whether a defendant is entitled to the benefit the presuit screening requirements of section 766.106, Statutes, is whether the defendant is or vicariously liable under medical standard of care set forth in section 766.102(1), Florida Statutes. Weinstock v. Groth, 629 So.2d 835 (Fla. 1993), citing Properties, Inc. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991). Not every wrongful act by a health care provider amounts to medical malpractice. Stackhouse v. Emerson, 611 So.2d 1365 5th DCA 1993). From the of the complaint, it is apparent that appellants have sued appellee for failure to warn of a dangerous condition or properly maintain a piece rather breach of some professional standard of care. We hold that court erred in dismissing the complaint. We appellee's contention that Neilinger v. Baptist Hospital of Miami, Inc., 460 564 (Fla. 3d DCA 1984), requires affirmance of the below. In Neilinger, the complaint alleged that the plaintiff, a patient, and fell on a pool of amniotic fluid while descending from an examination table under the direction and of employees of the hospital. complaint on its face alleged breach of a professional standard of The from is therefore reversed, and this cause is remanded for proceedings consistent herewith. BOOTH, JOANOS and MINER, JJ., concur.	638 So.2d 176 (1994) vICkIE BROAdwaY And HusbAND miChAEL e. BRoadWay, ApPEllAnTs, v. bAY hOSpItAl, INc., D/b/a hca gUlF coasT hoSpiTaL, aPPELLEe. no. 92-2337. dIstRICt COurt Of ApPeAL oF FloRiDa, FIrsT DistrICT. jUnE 14, 1994. EDmuND d. quintANA Of BUrke & BLuE, p.a., paNaMA CitY, FOR AppEllaNtS. ANn J. TIpTON OF BAkER, DUkE & tiPtOn, p.a., PeNsAcola, fOr APPEllee. *177 peR CuRIam. this caUSe Is beforE uS On appeaL froM A FiNaL OrdeR DismIsSing apPEllanTS' seCond aMended COmPlainT wiTH PreJuDiCe. appELlanTs ConTENd (1) tHAt THE trIaL CourT eRReD IN finDIng tHaT ThEY weRe reQuIRED To COMPLy witH THE pReSuit SCreENIng REQUIrEmeNts Of cHApTER 766, flORIDA StATutes, foR MediCal mAlPRACtICe cLaiMs; (2) that tHEIR ComPLiancE With tHe pREsuiT SCREENING RequIrEmENTS Was sUfficiENT sUch THaT tHe trIal CoUrT erred IN diSmiSSINg thEir COMpLaInt; ANd (3) THaT sEcTion 766.203(2), FLORiDa sTaTUTEs, WHiCh Imposes As a cOndItIOn PrEcedEnT TO ThE FIlInG oF A meDicaL MalPRActiCE clAIm ThaT tHe PlAiNTiFf PROvide nOTIcE of THe CLAiM anD A CORRoborATInG ExpeRt opiNION, iS UNcOnSTITUTIOnAL. WE REverse as To tHE FIRSt IssuE and, CONSEqUentlY, DO NOT reach THe sECONd ANd tHiRd IssUeS. The sEConD aMENDeD cOMPlaiNt AlLEGed thAT plAINTiFf/appeLLAnT viCKIE BROAdWAy was a pATiENT at APPeLleE'S HoSpiTal iN JULY 1989 aND WAs inJurEd WheN HEr HOSpiTAl bED collApsed. aPpELLaNtS sOuGht daMagES BAsEd oN APPELlEE's bREacH OF ITs dUty TO Use ReAsoNAblE CaRE In MaINtaINING its premisES anD BrEach Of Its dUtY TO WARN mS. brOADwAY of LatEnt haZARds. APPellEe SoUghT dIsMISSal oF ThE COMpLaInT On THe GroUnD THat tHE comPLaiNt staTeD a cLaiM For MeDiCAL NeglIGeNcE AnD thaT aPpELLAnts hAd FAILed TO cOmpLY wItH THE pRESuiT screENing rEquIremENtS OF CHAPter 766, FLoRiDA stAtUtEs. tHE trIaL court enteRed AN oRdEr dISMISsIng THE cOmplainT WItH prEJuDice UndEr seCtioN 766.206(2), FlORida stAtUtes, WHIch RequIreS THat A mEdICAl MaLPrActice COMPlaInt be dismISsEd iF THE coUrt FInds that the plAinTIff IS NOt IN COMPLiaNce WitH tHe prEsuit InveStigAtION ReQuIReMenTs oF cHApTER 766. uNdeR sEcTIon 766.106(1)(a), FloRIDa staTuTes, "CLaIm FOr mEDicAl malprACTIce" is dEFined aS "A Claim ARiSing out OF the rENDErinG OF, oR THE failuRe To rENDER, meDiCaL Care OR sErVICeS." a PerSoN sEekiNG rEcoVeRY for inJUry reSUltING FrOm medical mAlpRActIce MUsT ProvE tHaT ThE injuRY REsultEd fRoM A BreACH of tHe PREvAiliNG proFEssIoNAl StanDaRD oF CARE as sEt fORTH In sECTIoN 766.102(1), FloriDA statUTes. tHe test fOr DEteRMinIng WHEtheR a DeFEnDant iS enTitLeD To thE BEnEfiT oF the PRESUIt scREEniNG reQUIRemENTS OF SeCtion 766.106, FlOriDa stATUtES, Is WheThER tHE DeFENDANt iS dIrEctLY OR ViCaRiOuSly LiABle UNdER ThE MEdIcAL neglIGeNcE STAndArD OF cARE sET FOrTh IN SECTIoN 766.102(1), flOrIda StaTUTES. wEINstOCK V. Groth, 629 So.2D 835 (FlA. 1993), cIting NmE PROpErtIES, Inc. MccuLlOUgH, 590 SO.2d 439 (FLA. 2d dcA 1991). nOT eVery wRonGFUl acT by a heAlTH CAre prOvIdEr AmOUnTS TO mEDicaL MalpRActICe. staCkhOUse V. EmERsOn, 611 sO.2D 1365 (FLa. 5tH DCa 1993). frOM tHE faCe of the comPLaINT, iT iS APpARenT ThaT aPpELLaNts hAVE SUEd APPelLeE FOR THE FaiLUre To wArN Of a DangErous cOnditIOn Or ProPErlY MaINTaIn A piEcE of eqUIPMEnt, RathER THan For BreaCH of soMe PROFEsSIOnaL stANdaRd Of cArE. We hOlD ThaT THe trIaL cOuRt Erred IN DIsMISSInG The ComPlAINT. we rejEct apPeLLee'S ContEntiON tHat nEiLiNgER v. baptisT hospItal Of mIaMI, inc., 460 so.2D 564 (flA. 3D dcA 1984), rEQuiReS AfFIrmANCE of ThE oRder BelOW. In neiliNger, tHe cOmplaInT allEgEd thAT tHe PLaINTifF, a maTeRniTY pAtienT, SlippEd anD fell oN A PoOl OF AmniotIC flUId While DesCenDIng frOM an exaMInatiON TAbLE undEr thE directiON anD CaRE oF EmpLoyees OF THE hOspITAL. tHe COmpLAINT ON iTS faCE AlLEGeD BreAcH oF a pROfEssiONaL STANdArd Of care. ThE oRdEr APpeaLED fRoM IS tHEREfORe ReVersED, and thIs CausE is rEMaNdeD foR pROCEEdiNgS coNSisTEnT hErewitH. BoOTh, JOANos AND MiNER, Jj., CoNcUR.	638 So.2d 176 (1994) Vickie BROADWAY and HusbandMichael E. Broadway, Appellants,v. BAY HOSPITAL,INC., d/b/a HCA Gulf Coast Hospital,Appellee. No. 92-2337. District Court of Appeal of Florida, First District. June 14, 1994. Edmund D. Quintana of Burke & Blue, P.A.,Panama City, for appellants. Ann J. Tipton of Baker,Duke & Tipton,P.A., Pensacola, for appellee. *177 PER CURIAM. This cause is before us on appeal from afinal order dismissing appellants' second amended complaint with prejudice.Appellants contend (1) thatthe trial court erred in finding thatthey were required to comply with the presuit screening requirements of chapter 766, Florida Statutes, for medical malpractice claims; (2) thattheir compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing theircomplaint; and(3) that section 766.203(2), Florida Statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the plaintiff provide notice ofthe claim and a corroborating expertopinion, is unconstitutional. We reverse as to thefirst issue and, consequently, do not reach the second and third issues. The second amended complaintalleged that plaintiff/appellant Vickie Broadway was a patient at appellee's hospitalinJuly 1989 and was injured when her hospital bed collapsed. Appellants sought damages based on appellee's breach of its dutyto use reasonable care in maintaining itspremises and breach of itsduty to warn Ms. Broadway of latent hazards.Appellee sought dismissal of thecomplaint on the groundthat the complaint stated a claim for medicalnegligence and that appellants had failed to comply with the presuit screening requirementsof chapter 766, Florida Statutes. The trial court entered an order dismissing the complaint with prejudiceunder section 766.206(2), Florida Statutes,whichrequires that amedicalmalpracticecomplaint be dismissed if the court finds that the plaintiff is notin compliance with the presuit investigation requirements of chapter 766. Under section 766.106(1)(a), Florida Statutes, "claim for medical malpractice" isdefined as"a claim arisingout ofthe rendering of, or thefailure to render, medical care or services." A person seeking recovery for injuryresulting from medical malpractice must prove that theinjury resultedfrom a breachof the prevailing professionalstandard of care as set forthin section 766.102(1), Florida Statutes. The test fordetermining whethera defendant is entitled to the benefit of thepresuit screening requirements of section 766.106, Florida Statutes, iswhether the defendant is directlyor vicariously liable under the medical negligence standard of care set forth in section766.102(1),Florida Statutes. Weinstock v. Groth, 629 So.2d 835(Fla. 1993), citing NME Properties, Inc. McCullough, 590 So.2d439 (Fla. 2d DCA1991). Notevery wrongful act by ahealthcare provider amounts to medical malpractice. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993).From the face of the complaint, it is apparentthat appellants have sued appellee for the failure to warn of a dangerous condition or properlymaintaina piece of equipment, rather than for breach ofsomeprofessional standardof care.We hold thatthe trialcourt erred in dismissingthe complaint. We reject appellee's contention that Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla.3d DCA 1984), requires affirmance of the orderbelow. In Neilinger, the complaint allegedthat the plaintiff, a maternity patient, slipped and fell on a pool of amniotic fluid while descending froman examination table under the direction and care of employees of thehospital. The complaint on its face alleged breach of a professional standard ofcare. The order appealed from is therefore reversed, and this cause is remanded forproceedings consistent herewith. BOOTH, JOANOS and MINER,JJ.,concur.	638 So.2d 176 (1994) Vickie _BROADWAY_ and _Husband_ Michael _E._ Broadway, Appellants, _v._ BAY HOSPITAL, INC., d/b/a HCA Gulf Coast Hospital, _Appellee._ _No._ 92-2337. District _Court_ of Appeal of Florida, First _District._ June 14, 1994. Edmund D. Quintana of Burke & Blue, P.A., Panama City, for appellants. Ann J. _Tipton_ of Baker, _Duke_ & Tipton, P.A., _Pensacola,_ for appellee. *177 _PER_ CURIAM. This cause is _before_ us on appeal from a final _order_ dismissing appellants' _second_ amended _complaint_ with prejudice. Appellants contend _(1)_ that the trial court erred in finding _that_ they were required to comply with the presuit _screening_ requirements of _chapter_ 766, Florida Statutes, for medical malpractice claims; (2) _that_ their compliance _with_ the presuit screening requirements was sufficient _such_ that the trial court _erred_ in _dismissing_ their complaint; and (3) _that_ section _766.203(2),_ Florida Statutes, _which_ imposes as _a_ condition precedent to the filing of _a_ medical _malpractice_ claim that _the_ plaintiff provide notice of the claim and _a_ corroborating expert opinion, is _unconstitutional._ We reverse as to the first issue and, consequently, do not reach the second and third issues. The second amended complaint _alleged_ _that_ plaintiff/appellant Vickie _Broadway_ was a _patient_ _at_ appellee's hospital in _July_ 1989 and was injured when her hospital bed _collapsed._ Appellants sought damages based on _appellee's_ breach of its duty to use _reasonable_ care in _maintaining_ its premises _and_ breach of its duty _to_ warn _Ms._ Broadway _of_ latent hazards. Appellee sought _dismissal_ of the complaint on _the_ ground that _the_ complaint _stated_ a claim for medical negligence _and_ that appellants _had_ _failed_ to _comply_ with the presuit _screening_ requirements of chapter 766, _Florida_ Statutes. The trial court _entered_ _an_ order dismissing the complaint with _prejudice_ _under_ _section_ 766.206(2), Florida Statutes, _which_ requires that a _medical_ malpractice complaint be dismissed if the _court_ finds that the plaintiff is not in compliance with _the_ _presuit_ _investigation_ requirements of chapter _766._ Under section 766.106(1)(a), Florida _Statutes,_ "claim for medical malpractice" is defined as "a _claim_ arising _out_ of the rendering of, or _the_ failure to _render,_ medical care _or_ services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from _a_ breach of _the_ prevailing professional standard _of_ care as set forth in section 766.102(1), _Florida_ Statutes. The test for _determining_ whether a _defendant_ is entitled to _the_ benefit of the presuit _screening_ requirements of section 766.106, Florida Statutes, is whether the defendant is directly or vicariously liable _under_ the medical _negligence_ standard _of_ care set forth in section 766.102(1), Florida Statutes. Weinstock v. Groth, 629 So.2d 835 _(Fla._ 1993), citing NME Properties, _Inc._ McCullough, 590 So.2d 439 (Fla. _2d_ DCA _1991)._ Not every wrongful act by a health care provider amounts _to_ medical malpractice. Stackhouse v. Emerson, 611 So.2d _1365_ (Fla. 5th DCA 1993). From _the_ face of the _complaint,_ it is apparent that _appellants_ have _sued_ appellee for the failure to _warn_ of a _dangerous_ _condition_ or properly maintain a piece of _equipment,_ rather than for _breach_ of some professional standard of care. We hold that _the_ _trial_ court erred in dismissing the complaint. We reject appellee's contention that Neilinger v. Baptist Hospital of Miami, _Inc.,_ 460 _So.2d_ 564 _(Fla._ _3d_ DCA 1984), requires affirmance of _the_ order below. In Neilinger, the complaint alleged that the plaintiff, a maternity patient, slipped _and_ fell on a pool of amniotic fluid while descending from an examination table _under_ _the_ direction and care _of_ employees of the hospital. The complaint on its face alleged breach of a _professional_ _standard_ _of_ care. The _order_ appealed from is therefore reversed, and this cause is remanded for proceedings consistent _herewith._ _BOOTH,_ JOANOS and MINER, JJ., concur.
640 S.W.2d 758 (1982) Harmon HOOT, Relator, v. Edwin E. BREWER, County Judge, Respondent. No. 01-82-0583-CV. Court of Appeals of Texas, Houston (1st Dist.). September 3, 1982. 759 Frank L. Mauro, Wommack, Denman & Mauro, Lake Jackson, for relator. Charles Stevenson, Asst. Dist. Atty., Angleton, for respondent. OPINION DUGGAN, Justice. This is an original mandamus proceeding in this court wherein relator seeks a writ of mandamus to compel the respondent, who is the County Judge of Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas, relator's name to be put on the general election ballot in November, 1982, as a candidate for the office of County Judge. The jurisdiction of this court has been invoked pursuant to Tex.Elec.Code Ann. art. 13.41 (Vernon Supp.1982) and Tex.Rev. 760 Civ.Stat.Ann. arts. 1735a and 1823. The jurisdictional requirements have been demonstrated. Relator's position may be summarized briefly as follows: He maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in November, 1982, in the column for independent candidates. He maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge with his Notice of Intent to Run as an Independent Candidate within the time frame allowed under Tex.Elec.Code Ann. art. 13.12 (Vernon Supp.1982), and b) providing a written application signed by 686 eligible Brazoria County voters who had not voted in the May 1, 1982 primary election. Relator asserts further that his application exceeded the statutory requirement of 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. No primary run-off election for the position of County Judge was required. Relator asserts further that he has communicated with respondent on five separate occasions between July 12, 1982 and date of filing of his application for writ of mandamus with no response out of respondent as to why relator's name has not been certified. In this connection he says further that unless respondent puts relator's name on the ballot on or before September 18, 1982, relator may lose his right to run. According to the provisions of Tex.Elec. Code Ann. art. 13.56(f) (Vernon Supp.1982) if relator is declared ineligible before the 44th day before election day (November 2, 1982), his name may not be placed on the ballot. Finally, relator asserts that in the event that respondent decides on the eve of the 44th day prior to election day that relator's application does not meet the statutory requirements for gaining a place on the ballot, there will be no time for relator to obtain a judicial determination of his right to have his name on the ballot. Regarding the likelihood that this situation could occur, relator points to the fact that, if his name is on the ballot in November, he will be an opponent of the respondent for the very position which respondent now holds. In response to all of the foregoing respondent's stance may be summarized briefly as follows: Before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel. The duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Further, says respondent, the Court of Appeals has no authority to issue writs of mandamus unless the facts are established without dispute. Provisions of the Election Code concerning the contents of an independent candidate's application to be placed on the ballot at a general election are mandatory, and must be strictly complied with. Tex.Elec.Code Ann. art. 13.50, (Vernon Supp.1982) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot: Subdivision 4. No application shall contain the name of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the run-off primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. An application may not be circulated for signatures until the day after the general primary election day, or if a runoff primary election is held for the office sought by the applicant, until the day after the runoff primary election day. A signature obtained before the day an application may be circulated is void. Subdivision 5. In addition to the person's signature, the application shall show each 761 signer's address, the number of his voter registration certificate, and the date of signing. Respondent contends further that the names of those persons who signed relator's application prior to the date of the primary runoff election are not valid and may not be counted. Respondent's key position in challenging the sufficiency of the application's conformity with the requirements of the Election Code is that such requirements are mandatory, that relator must strictly comply, and that the applications must contain a sufficient address. Respondent asserts that 133 of the signatures are invalid because they were obtained before June 6, 1982; further, that 221 more of the signatures are invalid because of incomplete address. Quite obviously, says respondent, the applications contained only 268 valid signatures, far short of the required 500 valid signatures. Coming to grips now with the crucial points raised in this original proceeding this court compliments counsel for both parties on their able briefs. We recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel; further, that the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970); Bozarth v. City of Denison, 559 S.W.2d 378 (Tex.Civ.App.Dallas 1977, no writ); Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.Houston [14th Dist.] 1982, no writ). In addition, the authorities are clear that the Courts of Appeals have no authority to issue writs of mandamus unless the facts are established without dispute. Bozarth, supra; Bigham v. Sutton, 565 S.W.2d 561 (Tex.Civ.App.Austin 1978, no writ); Donald v. Carr, 407 S.W.2d 288 (Tex. Civ.App.Dallas 1966, no writ). We are mindful also that, whereas provisions of election laws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McWaters v. Tucker, 249 S.W.2d 80 (Tex.Civ.App.Galveston 1952, no writ); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.Dallas 1976, no writ); Shields v. Upham, 597 S.W.2d 502 (Tex.Civ.App.El Paso 1980, no writ). VALIDITY OF SIGNATURE DATES BEFORE JUNE 6, 1982 By respondent's own figures, there were 133 signatures falling into this category. No fact issue whatever is involved in reaching that determination. In concluding whether the signatures on relator's application should be counted if the signature date is prior to June 6, 1982, the date of the run-off election, but after the date of the general primary, Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) is determinative. We quote therefrom as follows: An Application may not be circulated for signatures until the day after the general primary election day or if a run-off primary election is held for the office sought by applicant, until the day after the runoff primary election day. (Emphasis added.) The emphasized language is the heart of the matter because it is uncontroverted that there was no runoff election for the office of County Judge of Brazoria County in 1982. We hold, therefore, that the questioned 133 signatures obtained before June 6, 1982 are valid and should be added to the 268 signatures recognized as valid by respondent. In so holding we not only follow the clear wording of the statute, but we have the benefit of Tex.Atty.Gen.Op. No. DAD-49 (1982) which states the question as follows at page 1. 1. Under Subdivision 4 of Article 13.50, is it permissible to have an application to run as an independent candidate that contains signatures dated before the runoff primary election if there is no primary runoff election for the particular office for which a person desires, to run as an independent candidate. At page 2 the answer to such question is given as follows: "1. V.A.T.S. Election Code, art. 13.50, subd. 4, states, in part: 762 An application may not be circulated for signatures until the day after the	640 p. w. 2d 758 ( 1982 ) harmon hoot, relator, v. edwin e. brewer, county judge, respondent. no. 01 - 82 - 0583 - cv. court of appeals of texas, houston ( 1st dist. ). september 3, 1982. * 759 frank l. mauro, wommack, denman & mauro, lake jackson, for relator. melvin stevenson, asst. dist. atty., angleton, for respondent. opinion duggan, justice. this is an original mandamus proceeding in this court wherein plaintiffs seeks a deposition of mandamus to compel the respondent, who is the county judge of brazoria county, texas, to certify to whichever county clerk of brazoria county, texas, relator ' s name to be put on the general election ballot in november, 1982, as a candidate seeking the office of county judge. the jurisdiction of this court has therefore invoked pursuant to tex. elec. code ann. art. 13. 47 ( vernon supp. 1982 ) and tex. rev. * 760 civ. stat. ann. arts. 1735a and 1823. the eligibility requirements have been demonstrated. relator ' s position may be summarized briefly as follows : he maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in november, 1982, in the column for independent candidates. he maintains further that he has complied with tex. elec. code ann. art. 13. 50 ( vernon supp. 1982 ) by a ) providing the county judge with his notice of intent to run as an independent candidate within the time frame allowed under tex. elec. code ann. art. 13. 12 ( vernon supp. 1982 ), and b ) providing a written application signed by 686 eligible brazoria county voters who had not voted in the may 1, 1982 primary election. relator asserts further that his application exceeded that statutory requirement of 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. no primary run - off election for the position of county judge was required. relator asserts further that he has communicated with respondent on five separate occasions between july 12, 1982 and date of filing of his application for writ of mandamus with no response out of respondent as to why relator ' s name has not been certified. in this connection he says further that unless respondent puts relator ' s name on the ballot on or before september 18, 1982, relator may lose his right to run. according to the provisions of tex. elec. code ann. art. 13. 56 ( f ) ( vernon supp. 1982 ) if relator is declared ineligible before the 44th day before election day ( november 2, 1982 ), his name may not be placed on the ballot. finally, relator asserts that in the event that respondent decides on the eve of the 44th day prior to election day that relator ' s application does not meet the statutory requirements for gaining a place on the ballot, there will be no time for relator to obtain a judicial determination of his right to have his name on the ballot. regarding the likelihood that this situation could occur, relator points to the fact that, if his name is on the ballot in november, he will be an opponent of the respondent for the very position which respondent now holds. in response to all of the foregoing respondent ' s stance may be summarized briefly as follows : before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel. the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. further, says respondent, the court of appeals has no authority to issue writs of mandamus unless the facts are established without dispute. provisions of the election code concerning the contents of an independent candidate ' s application to be placed on the ballot at a general election are mandatory, and must be strictly complied with. tex. elec. code ann. art. 13. 50, ( vernon supp. 1982 ) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot : subdivision 4. no application shall contain the name of more than one candidate for the same office ; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. no person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the run - off primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. an application may not be circulated for signatures until the day after the general primary election day, or if a runoff primary election is held for the office sought by the applicant, until the day after the runoff primary election day. a signature obtained before the day an application may be circulated is void. subdivision 5. in addition to the person ' s signature, the application shall show each * 761 signer ' s address, the number of his voter registration certificate, and the date of signing. respondent contends further that the names of those persons who signed relator ' s application prior to the date of the primary runoff election are not valid and may not be counted. respondent ' s key position in challenging the sufficiency of the application ' s conformity with the requirements of the election code is that such requirements are mandatory, that relator must strictly comply, and that the applications must contain a sufficient address. respondent asserts that 133 of the signatures are invalid because they were obtained before june 6, 1982 ; further, that 221 more of the signatures are invalid because of incomplete address. quite obviously, says respondent, the applications contained only 268 valid signatures, far short of the required 500 valid signatures. coming to grips now with the crucial points raised in this original proceeding this court compliments counsel for both parties on their able briefs. we recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel ; further, that the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. oney v. ammerman, 458 s. w. 2d 54 ( tex. 1970 ) ; bozarth v. city of denison, 559 s. w. 2d 378 ( tex. civ. app. dallas 1977, no writ ) ; blanchard v. fulbright, 633 s. w. 2d 617 ( tex. app. houston [ 14th dist. ] 1982, no writ ). in addition, the authorities are clear that the courts of appeals have no authority to issue writs of mandamus unless the facts are established without dispute. bozarth, supra ; bigham v. sutton, 565 s. w. 2d 561 ( tex. civ. app. austin 1978, no writ ) ; donald v. carr, 407 s. w. 2d 288 ( tex. civ. app. dallas 1966, no writ ). we are mindful also that, whereas provisions of election laws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. mcwaters v. tucker, 249 s. w. 2d 80 ( tex. civ. app. galveston 1952, no writ ) ; geiger v. debusk, 534 s. w. 2d 437 ( tex. civ. app. dallas 1976, no writ ) ; shields v. upham, 597 s. w. 2d 502 ( tex. civ. app. el paso 1980, no writ ). validity of signature dates before june 6, 1982 by respondent ' s own figures, there were 133 signatures falling into this category. no fact issue whatever is involved in reaching that determination. in concluding whether the signatures on relator ' s application should be counted if the signature date is prior to june 6, 1982, the date of the run - off election, but after the date of the general primary, tex. elec. code ann. art. 13. 50 ( vernon supp. 1982 ) is determinative. we quote therefrom as follows : an application may not be circulated for signatures until the day after the general primary election day or if a run - off primary election is held for the office sought by applicant, until the day after the runoff primary election day. ( emphasis added. ) the emphasized language is the heart of the matter because it is uncontroverted that there was no runoff election for the office of county judge of brazoria county in 1982. we hold, therefore, that the questioned 133 signatures obtained before june 6, 1982 are valid and should be added to the 268 signatures recognized as valid by respondent. in so holding we not only follow the clear wording of the statute, but we have the benefit of tex. atty. gen. op. no. dad - 49 ( 1982 ) which states the question as follows at page 1. 1. under subdivision 4 of article 13. 50, is it permissible to have an application to run as an independent candidate that contains signatures dated before the runoff primary election if there is no primary runoff election for the particular office for which a person desires, to run as an independent candidate. at page 2 the answer to such question is given as follows : " 1. v. a. t. s. election code, art. 13. 50, subd. 4, states, in part : * 762 an application may not be circulated for signatures until the day after the	640 S. W. 2d 758 (1982) Harmon HOOT, Relator, v. Edwin E. BREWER, County Judge, Respondent. No. 01 - 82 - 0583 - CV. Court of Appeals of Texas, Houston (1st Dist. ). September 3, 1982. * 759 Frank L. Mauro, Wommack, Denman & Mauro, Lake Jackson, for relator. Charles Stevenson, Asst. Dist. Atty. , Angleton, for respondent. OPINION DUGGAN, Justice. This is an original mandamus proceeding in this court wherein relator seeks a writ of mandamus to compel the respondent, who is the County Iudbe of Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas, relator ' s name to be put on the general election ballot in November, 1982, as a candidate for the office of County Judge. The jurisdiction of this court has been invoked pursuant to Tex. Elec. Code Ann. art. 13. 41 (Verhog Supp. 1982) and Tex. Rev. * 760 Civ. Stat. Ann. arts. 1735a and 1823. The jurisdictional requirements have been demonstrated. Relator ' s position may be summarized briefly as follows: He maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in November, 1982, in the column for independent candidates. He maintains further that he has complied with Tex. Elec. Code Ann. art. 13. 50 (Vernon Supp. 1982) by a) providing the County Judge with his Notice of Intent to Run as an Independent Candidate within the time frame allowed under Tex. Elec. Code Ann. art. 13. 12 (Vernon Supp. 1982 ), and b) providing a written application signed by 686 eligible Brazoria County voters who had not voted in the May 1, 1982 primary election. Relator asserts further that his application exceeded the statutory requirement of 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. No primary run - off election for the position of County Judge was required. Relator asserts further that he has communicated with respondent on five separate occasions between July 12, 1982 and date of filing of his application for writ of mandamus with no response out of respondent as to why relator ' s name has not been certified. In this connection he sSye further that unless respondent puts relator ' s name on the ballot on or before September 18, 1982, relator may lose his right to run. According to the provisions of Tex. Elec. Code Ann. art. 13. 56 (f) (Vernon Supp. 1982) if relator is declared ineligible before the 44th day before election day (November 2, 1982 ), his name may not be placed on the ballot. Finally, relator asserts that in the event that respondent decides on the eve of the 44th day prior to election day that relator ' s application does not meet the statutory requirements for gaining a place on the ballot, there will be no time for relator to obtain a judicial determination of his right to have his name on the ballot. Regarding the likelihood that this situation could occur, relator points to the fact that, if his name is on the ballot in November, he will be an opponent of the respondent for the very position which respondent now holds. In response to all of the foregoing respondent ' s stance may be summarized briefly as follows: Before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel. The duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Further, says respondent, the Court of Appeals has no authority to issue writs of mandamus unless the facts are established without dispute. Provisions of the Election Code concerning the contents of an &ndepehdent candidate ' s application to be placed on the ballot at a general election are mandatory, and must be strictly complied with. Tex. Elec. Code Ann. art. 13. 50, (Vernon Supp. 1982) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot: Subdivision 4. No application shall contain the name of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the run - off primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. An application may not be circulated for signatures until the day after the general primary election day, or if a 4unKff primary election is held for the office sought by the applicant, until the day after the runoff primary election day. A signature obtained before the day an application may be circulated is void. Subdivision 5. In addition to the person ' s signature, the application shall show each * 761 signer ' s address, the number of his voter registration certificate, and the date of signing. Respondent contends further that the naneW of those persons who signed relator ' s application prior to the date of the primary runoff election are not valid and may not be counted. Respondent ' s key position in challenging the sufficiency of the application ' s conformity with the requirements of the Election Code is that such requirements are mandatory, that relator must strictly comply, and that the applications must contain a sufficient address. Respondent asserts that 133 of the signatures are invalid because they were obtained before June 6, 1982; further, that 221 more of the signatures are invalid because of incomplete address. Quite obviously, says respondent, the applications contained only 268 valid signatures, far short of the required 500 valid signatures. Coming to grips now with the crucial points raised in this original proceeding this court compliments counsel for both parties on their able briefs. We recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel; further, that the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Oney v. Ammerman, 458 S. W. 2d 54 (Tex. 1970 ); Bozarth v. City of Denison, 559 S. W. 2d 378 (Tex. Civ. App. Dallas 1977, no writ ); Nlznchard v. Fulbright, 633 S. W. 2d 617 (Tex. App. Houston [15gh Dist.] 1982, no writ ). In addition, the authorities are clear that the Courts of Appeals have no authority to issue writs of mandamus unless the facts are established without dispute. Bozarth, supra; Bigham v. Sutton, 565 S. W. 2d 561 (Tex. Civ. App. Austin 1978, no writ ); Donald v. Carr, 407 S. W. 2d 288 (Tex. Civ. App. Da/;as 1966, no writ ). We are mindful also that, whereas provisions of election laws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McQateGs v. Tucker, 249 S. W. 2d 80 (Tex. Civ. App. Galveston 1952, no writ ); Geiger v. DeBusk, 534 S. W. 2d 437 (Tex. Civ. App. Dallas 1976, no writ ); Shields v. Upham, 597 S. W. 2d 502 (Tex. Civ. App. El Paso 1980, no writ ). VALIDITY OF SIGNATURE DATES BEFORE JUNE 6, 1982 By respondent ' s own figures, there were 133 signatures falling into this category. No fact issue whatever is involved in reaching that determination. In concluding whether the signatures on relator ' s application should be counted if the signature date is prior to June 6, 1982, the date of the run - off election, but after the date of the general primary, Tex. Elec. Code Ann. art. 13. 50 (Vernon Supp. 1982) is determinative. We quote therefrom as follows: An Application may not be circulated for signatures until the day after the general primary election day or if a run - off primary election is held for the office sought by applicant, until the day after the runoff primary election day. (Emphasis added.) The emphasized language is the heart of the matter because it is uncontroverted that there was no runoff election for the office of County Judge of Brazoria County in 1982. We hold, therefore, that the questioned 133 signatures obtained before June 6, 1982 are valid and should be added to the 268 signatures recognized as valid by respondent. In so holding we not only follow the clear wording of the statute, but we have the benefit of Tex. Atty. Gen. Op. No. DAD - 49 (1982) which states the question as follows at page 1. 1. Under Subdivision 4 of Article 13. 50, is it permissible to have an application to run as an independent candidate that contains signatures dated before the runoff primary election if there is no primary runoff election for the particular office for which a person desires, to run as an independent candidate. At page 2 the answer to such question is given as follows: " 1. V. A. T. S. Election Code, art. 13. 50, subd. 4, states, in part: * 762 An application may not be circulated for signatures until the day after the	S.W.2d 758 (1982) Harmon HOOT, Relator, v. Edwin E. BREWER, County Judge, Respondent. No. 01-82-0583-CV. Court of Appeals Texas, Houston Dist.). September 3, 1982. L. Mauro, Wommack, Denman & Mauro, Lake for relator. Charles Stevenson, Asst. Atty., Angleton, for respondent. OPINION DUGGAN, Justice. This is an original this court wherein relator seeks a writ of mandamus to compel the respondent, who is County Judge Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas, name to be put on the general election ballot in November, 1982, as a candidate for the office of County Judge. The jurisdiction of this court been invoked pursuant to Tex.Elec.Code Ann. 13.41 (Vernon Supp.1982) and Tex.Rev. 760 Civ.Stat.Ann. arts. 1735a 1823. The jurisdictional requirements have been demonstrated. Relator's position be summarized briefly as follows: He maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in November, 1982, in the column for candidates. maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge with his Notice of Intent to Run as an Independent Candidate within the time frame allowed under Tex.Elec.Code art. 13.12 (Vernon Supp.1982), and b) providing a written signed by 686 eligible Brazoria voters who had not voted the 1, 1982 primary election. Relator asserts further that his application exceeded the statutory 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. No primary run-off election the position of County Judge was required. Relator asserts further that has communicated with respondent on separate occasions between July 12, 1982 date of filing his application for writ of mandamus with no response out of respondent as to why relator's name has not been certified. In this connection he says further that unless respondent relator's name on the ballot on or before September 18, 1982, relator may lose his right to run. According to the provisions of Tex.Elec. Code Ann. 13.56(f) (Vernon Supp.1982) if is declared ineligible before the 44th day before election day 2, 1982), his may not be placed on the ballot. Finally, relator asserts that in the event that respondent decides the eve of the 44th day prior to election that relator's application does not meet the statutory requirements for gaining a place on ballot, there will be no time relator to obtain a judicial determination of his right to have his name on the ballot. Regarding the likelihood that this situation could occur, relator points to fact that, if his name is on the ballot in November, he will be an opponent of the respondent for the which respondent now holds. In response to all of the foregoing respondent's stance may be summarized briefly as follows: Before a writ of mandamus will issue, relator must have a clear legal right to performance of the he seeks to compel. duty of the officer sought to be compelled must be one clearly fixed and required by the law, the writ not issue. says respondent, the Court of Appeals has no authority to issue writs of mandamus unless the facts are established without dispute. Provisions of the Election Code concerning the contents of an independent candidate's application to be placed on the ballot at a general election are mandatory, and must be strictly complied with. Tex.Elec.Code Ann. art. 13.50, (Vernon Supp.1982) contains following provisions concerning requisites of an application of an independent candidate to be placed on the ballot: Subdivision 4. No application shall contain the name of more than one for the same office; and if any person signs the application of more than one candidate for the office, the shall be as to all such applications. No person such application unless he is a qualified and no person who has voted at either the general primary or the primary election any party shall sign an application in favor of anyone an office for a nomination was made at either such primary An application may not be for signatures until the day after the general primary election or if a runoff primary election is held for the office sought by the applicant, until the day after the primary election day. A signature obtained before the day application may be circulated is void. Subdivision 5. In addition to the person's signature, the application shall show 761 signer's address, the number of his voter registration certificate, the date of Respondent contends further that the names of those persons who signed relator's prior the date of the primary runoff election are not valid and may not be counted. Respondent's key position in challenging the of the application's conformity with the of the Election Code is that such requirements are mandatory, that relator must comply, that the applications contain a sufficient address. Respondent asserts that 133 of the are because they were obtained June 6, 1982; that more of the signatures are invalid because of address. Quite obviously, says respondent, the applications contained only 268 valid far short the required valid Coming to grips now with crucial raised in original proceeding this court compliments counsel both parties on able We recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to of the act he seeks to compel; further, that the of the officer sought to be compelled must be one clearly fixed and required by the or the writ not Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970); Bozarth v. City of Denison, 559 S.W.2d 378 (Tex.Civ.App.Dallas 1977, no writ); Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.Houston [14th 1982, no writ). In addition, authorities are clear that the Courts Appeals have no authority to issue writs of unless the facts established without dispute. Bozarth, supra; Bigham v. Sutton, S.W.2d 561 (Tex.Civ.App.Austin 1978, no Donald v. Carr, 407 S.W.2d 288 (Tex. Civ.App.Dallas 1966, no writ). We are mindful also whereas provisions of election relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McWaters v. Tucker, 249 80 (Tex.Civ.App.Galveston 1952, no Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.Dallas writ); Shields v. Upham, 597 502 Paso 1980, no writ). OF DATES BEFORE JUNE 1982 By respondent's figures, there were 133 signatures into this category. No issue whatever is involved that determination. In concluding whether the signatures on relator's be counted if the signature date is prior to June 6, 1982, the of the run-off election, but after date of general primary, Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) determinative. We quote therefrom as follows: An Application may be circulated signatures until the day after the general primary election day or a run-off primary election is held for the office sought by applicant, until the day after the runoff primary election day. (Emphasis added.) The emphasized language is the of the matter is uncontroverted that there was no runoff election for the office County Judge of County in 1982. We hold, therefore, that the questioned 133 signatures obtained before June 6, 1982 valid should be added to the 268 signatures recognized as valid by respondent. In so holding we not only follow clear wording of statute, but we have the benefit of Tex.Atty.Gen.Op. No. DAD-49 (1982) which states the as follows at page 1. 1. Under Subdivision 4 of Article 13.50, is it permissible to have an application to run an independent candidate that contains signatures dated before the runoff primary election if there is no primary runoff election for the particular office for which a person desires, to run as an independent candidate. At page 2 the answer to such question is as follows: "1. Election Code, art. 13.50, subd. 4, states, in *762 An application may be circulated for signatures until the day after the	640 S.w.2d 758 (1982) HArMon hooT, reLaTor, v. eDWiN e. breWer, COUNTy JudGE, RESpOndeNT. NO. 01-82-0583-cv. COUrt OF AppeALs OF TEXAs, HOUSTON (1St disT.). SEpTEmBER 3, 1982. 759 frANk L. mauRo, womMacK, denmaN & MauRo, LAKE jaCksON, FOR reLAtoR. ChARLEs StEvENsOn, aSSt. dIst. ATtY., angleTOn, FOR RESPondeNt. OPiNioN duGgAn, JUSTICe. THis Is an origINAL MaNdamUs prOcEEDiNG iN thIS cOuRt wHeReIN RElAtOR SEeKS A writ Of MANDAmUs To coMPeL THe RESPONDenT, who IS THE couNtY Judge oF brAzorIa COuNTY, tExaS, to CeRTiFY tO tHe COUNtY cleRk of BRaZORIa COUntY, TexAS, ReLatOR'S naMe tO be PUt ON THE GEnERal ELectiON bAllOT in nOVeMbEr, 1982, as A caNDIDATE FoR the ofFice of COuntY juDge. tHE JURISdIctIon Of tHis cOURT HAS BEen iNvOkEd pUrsuanT To Tex.eLeC.code ANn. aRt. 13.41 (vernon suPp.1982) AND tEx.REV. 760 ciV.stAt.ANn. ARts. 1735A And 1823. The JuriSdIcTiOnaL REQUiremENts HAvE BeeN DemonsTrATEd. relaTOr's PoSitIOn mAy BE SummaRIZeD BRIEflY as fOlLoWs: he maintains tHaT He haS mEt THE sTatUTOrY ReqUIREMENTS FoR haVing HIS namE PRInTEd oN THE offiCiaL bALlot For THE gEneRAl election In NOvEmBeR, 1982, IN THE colUmn FoR INdEPENDeNT caNdiDATes. he MaINTaiNs FUrther That He haS cOMpLIed WITH teX.Elec.cOde anN. aRt. 13.50 (vErNOn SUpP.1982) bY a) proVIDiNg THe COUNtY juDge WiTh his NOtIcE Of InteNt to ruN AS an iNdEpEndeNt CANdiDATe witHIN THE timE fRAME aLLOWed under Tex.eLEC.CODe Ann. aRT. 13.12 (vERnoN SUpp.1982), AND B) PRoVIDing A WrIttEn ApPlicaTIon SiGnEd By 686 ElIGiBlE brAZoriA CoUNTy vOTErS whO HAD NOt VOteD IN The MAY 1, 1982 PrIMAry ElECTioN. RElaTOr AssErts FuRTHeR ThaT hIS apPLIcatiOn eXcEeded the sTatuTORy REQuirEMENT oF 500 ELiGible VoTErS by 186 SIGNATurES, anD THaT EACH sTEP wAs PERForMed WIthIN the statUToRY tIMe PEriods. No PRImary Run-oFf ElectiON for tHe PosiTioN Of COuNTy JUdge WaS reqUIreD. rELaToR AssErTS fURthER that hE haS coMmUnICaTED WITH rEsPonDeNt on FIvE SEPARaTe oCcaSiONs BEtWeEn julY 12, 1982 anD daTe oF fiLING oF hIs APPLicatION FOR wrIT oF mAnDaMUS WItH No reSpOnSe oUt oF ReSpoNdEnT As to Why reLAToR's NAME has Not bEeN CERTiFIed. In tHIS ConNECTion he SaYs FuRTheR thaT uNlESS rEspONdeNt PUTs ReLAtoR'S NAMe On THe bALlOT oN Or BefoRe SePtEmBer 18, 1982, rElatOR mAY LOsE HiS riGHT to rUN. aCCOrdinG to ThE pROVIsioNs of Tex.ELeC. CoDe anN. aRt. 13.56(F) (VerNOn suPP.1982) iF rELAtoR iS dEcLAREd iNELigIBLe BEfORe THe 44tH Day bEFore eLeCTion DAy (NoVeMbEr 2, 1982), HIS Name may nOt BE pLacED ON THE BAllot. fINalLy, rELATOR assErtS That in THe eVEnT thAt REsponDEnt dEciDeS ON ThE eVe Of The 44tH dAy prIoR tO ELECTioN DaY thAT RelAtoR'S APPlIcAtioN DOes not MEET ThE STATutoRY REQuiremENTs FOR gAINIng A PlAcE oN THE BAllot, there wILL be nO TiMe fOr RELaTor to OBTAiN A juDicIAl DETErmInaTION oF his right to HaVE hIs nAMe oN The balLOT. REGArDinG tHE LIKeLihOod ThAT ThIS sITuatioN CoulD OcCUr, ReLaTOR PoIntS To ThE FACT thAt, iF hiS NaMe IS on thE ballOT in nOVEmBeR, HE wIlL BE an OPPONEnt OF tHe RESpONDENT FoR tHE vERy POsItion WHiCH respoNdeNt Now hOLdS. iN rEsPOnse tO AlL Of ThE fOREGoING rEspoNDent's STANce may BE sUMMarIzEd brieflY AS FOLlOWs: Before a WrIt Of maNDamUs WiLL iSSUe, RELaTOR MUsT haVe a clEAR lEGaL rIghT To peRfORmaNcE of ThE aCT HE seEKs tO cOMpeL. tHe DutY Of tHE oFFicer sOUGHt To BE CoMpELlEd MUST BE one clEarLY FixED aND rEQUIred By ThE lAw, OR thE wRit Will noT iSsUE. fURTHEr, sAYS RESPoNdeNT, tHE couRt oF ApPEaLs HAS No aUTHOrity tO ISSUE wRItS OF mAndAMuS UnLesS ThE faCts ARE EsTAblIsHeD wiThouT DISpUTE. provISIoNs of thE EleCTiOn CODe coNCernING The cONTENTS OF an INdEPenDEnt CAndIdaTE's aPplicAtION TO bE PlaCed on The ballOT at A genErAl ELecTiON aRE ManDaToRY, aND mUSt Be stRICtLy cOmPLIeD WITh. Tex.elEC.coDE anN. aRt. 13.50, (VErNON suPP.1982) CONtAins The FOLLOwIng proVIsiOns cONcErNInG THE rEqUiSItes of an appliCatIOn OF an iNDepENdeNt CaNDiDaTe tO be PLaCEd ON ThE BaLLoT: sUBdIvisION 4. nO APPliCaTiON sHAlL CONTAIN THe NAme of mOre thAN oNE CaNdIdaTE FOR THE SaMe OfFIcE; ANd IF ANY PErSON sIGNs thE APPLICAtIoN of mORe tHAn One cANdIDate fOR tHe Same ofFICe, ThE SIGNaTure ShaLl bE vOId aS tO all sucH APplIcaTiOns. NO PeRSOn Shall siGn SucH APplICatIon UNLEsS HE iS a QUALiFIED voter, aNd No perSoN Who hAS VOted At eITHer THE geneRAL pRIMaRY ElECtION oR THe Run-OFf priMaRY ELeCtiOn oF aNy PARtY sHall SIgN AN ApPLICAtiON IN fAvor Of AnYOnE foR An OFFice fOr WhicH a NomiNaTion was mAde AT eItheR SUch pRIMARy ELecTion. aN ApPLIcaTion MaY NOt be CIRCULAted foR SigNATUrES Until the DaY After The GENERal PRimaRY ElecTion dAY, oR If A RUnOFF pRiMAry electIon is hEld for thE oFFicE SouGhT bY THe APpliCant, UnTIL the DaY aFTer thE RUNoff PrIMaRY ElECtIon DAY. a SIGNaTUre oBtAiNEd beFoRe the DAY An AppLICation mAy BE cirCulAteD iS VoID. sUbdIviSiOn 5. IN AdDiTION To tHe peRsoN's SIgnatUrE, THe APPLicaTIOn SHaLl ShOw eACH 761 SIgNeR'S AdDrESs, The numBer OF hiS VotER regiSTratION cERtIFicAtE, And THe dATE of SIGniNg. REsPoNDeNT COnTeNds fUrTheR THAT ThE NaMes oF ThOSE pERSOns wHo siGNEd rElAToR's apPlicATiOn PrioR to thE dAte of the PrIMARy rUnoFF elecTIOn ARE not valID AnD May nOt be COunted. REsponDeNt'S key POsITION iN ChalLengIng THE SUFficIEncy of The aPpliCATiOn's CoNForMItY WiTH The rEqUIrEmeNTs Of the eLEctioN cODe iS that sUCh REquirEmENts are maNdaTOrY, THAT RELaToR muST stRictly cOmPlY, ANd tHAT THE aPPLICaTiONS mUSt COnTAin a sUFFicieNT adDrESs. rEsPONdeNT aSsErTs tHaT 133 of The SiGNatUres aRe iNVALiD beCAuSe tHeY wERE ObtaIneD bEfoRE June 6, 1982; FurTher, thAt 221 mORE Of thE SiGnATUReS Are InvaLId bECaUSE OF inCOMpLEte aDdREss. QUIte OBViOusLY, Says ReSPondEnT, THe aPPlicaTiOnS cOntaINEd onLy 268 VALiD sigNaTuRes, FAr shOrT Of tHE rEquIRed 500 valiD sIGNATureS. coMing tO GRIPS now WitH The cRuciaL pOinTs rAISed In thIs orIgInaL proCeeDing tHiS Court CoMpLImentS coUnsel FoR BOth PArTiES oN thEIr AbLe BRIefS. wE RECOgNIZe fiRst, As resPoNDenT URgES, thAT BEfoRe a wrIT oF mANdamuS WiLL IssUE, RelaToR mUsT haVe A CleAR lEGaL riGht tO pErFOrManCe of ThE act hE SEEKs tO cOMPEL; fURthER, tHat thE duty oF the offIceR sOughT to Be ComPeLLed mUst Be oNE cleARlY fixEd anD ReQuIreD bY ThE LAw, or the wRit wiLl nOt ISSue. OnEy v. amMerMaN, 458 S.w.2d 54 (TEx. 1970); bOzArtH v. cItY of dENISON, 559 s.W.2D 378 (TEx.CiV.APP.DALLas 1977, nO WriT); BlancHaRD V. FulBRIghT, 633 s.W.2D 617 (TEx.aPP.hoUStOn [14TH dIST.] 1982, nO wrIt). In AdDItION, the AuThOriTiEs are clEAr ThAT tHE CouRtS of appeAlS hAve NO AutHoRItY TO iSsue wRIts Of MANDAmus uNLESs tHe FAcTS ArE estaBlisHed wITHouT DIsPUtE. BozARTH, Supra; BiGhAM v. sUTTOn, 565 s.w.2d 561 (TEx.civ.APp.aUStiN 1978, no wRIT); DONALd V. CarR, 407 s.W.2d 288 (TeX. CiV.APP.daLLAs 1966, no WRIt). we arE mInDfuL AlSO that, WhEreAS PrOviSIOns OF EleCtiON laws reLaTING tO VotErs arE to BE coNsTrUed As DiREctoRY, tHE PrOVISiOns of electiON LawS gOVERNInG THE rEQUiRemENts oF CAnDiDATes aRe MAndAtorY. mcWaTERs V. tUcKEr, 249 s.W.2D 80 (teX.ciV.apP.GalvesTon 1952, no wRit); GEiger V. DebUSk, 534 s.W.2D 437 (teX.ciV.APP.DaLlas 1976, nO wRIt); shiELds v. UPHAM, 597 s.w.2D 502 (TeX.Civ.ApP.El PAsO 1980, NO Writ). vALIDIty Of SIGNAtURE dATeS BEforE jUNE 6, 1982 bY reSPonDeNT's OwN fIgurEs, tHere were 133 SigNatUres falliNg INTo THIS cAtegORY. No fACt IsSuE WhaTEVEr Is INVOLveD in ReacHING that deterMiNatioN. IN cOncluding wHeTheR thE siGnatUreS oN RELaToR's APPlICatIoN SHOuld bE COUNTeD iF tHe SIGNaTUre dATe IS pRiOr to JUnE 6, 1982, ThE DAtE Of ThE ruN-off eLeCtIOn, buT aFTER tHE DatE Of tHe gENEraL primAry, Tex.eLeC.cOde ann. aRt. 13.50 (verNoN SupP.1982) Is DeTErmInATiVE. we qUOte tHErefROM AS FOlLOWS: aN ApplICAtIOn MAy noT BE cIrCUlatED FOr SIGnATUres UnTiL ThE DAY afTeR the GEnErAL pRiMAry ELeCTioN DaY or IF A RuN-ofF PRiMARY elECtion IS HElD For tHe OFFicE SoughT BY APPlIcANt, UNTiL ThE daY aFter tHE rUNOFF PrimAry ELecTion DAY. (EmPhasIS AddED.) the EmPHAsIzeD LaNGUAGe Is ThE HEarT of thE mATtER becAUSE iT Is UncOnTRovErTeD THaT THere wAs no RuNoFF eLectiON FOR The OFfIce Of CounTy JUDgE OF bRAZoRiA COunTY iN 1982. wE HOld, tHEreFORE, ThAT tHe qUeSTionED 133 sIGnaTUReS oBtAINeD Before June 6, 1982 arE ValID AnD should be AdDEd tO the 268 signaTUrES RECogniZeD AS VALid BY rESPOnDeNT. in SO hOlDINg we NOt only FoLLOW thE cleAR wOrDInG OF thE sTaTuTe, buT wE HavE the BenefiT of tex.AtTy.Gen.op. No. DAd-49 (1982) WHicH stATEs ThE qUEStiOn As fOlLOWs aT page 1. 1. UndEr SubDiVisiON 4 oF artIclE 13.50, is IT pERmisSiBlE tO haVE an APpLication To rUn AS An indepENDeNT cAnDidAte That conTaInS sigNATUREs Dated beFORE the RUNoFf PRiMAry ELEctIoN If ThERe IS NO PRIMary rUNOfF eLEcTIon FOR THe paRticular OffICe FOR wHICH A PeRsON deSIREs, TO rUn AS An INdePeNdenT CandIdATe. At PAge 2 tHe aNswER tO Such qUEsTIon Is giVEn aS fOlLOWs: "1. v.A.t.s. ElEcTION CoDe, ArT. 13.50, SUBd. 4, STaTES, IN PaRT: 762 an ApplIcATIoN MaY Not BE cIRCulateD FOr SIgNATures UntIl thE DaY aFTEr tHe	640 S.W.2d 758 (1982) Harmon HOOT, Relator, v. Edwin E. BREWER, CountyJudge, Respondent. No.01-82-0583-CV. Court of Appealsof Texas, Houston (1st Dist.). September 3, 1982. 759 Frank L. Mauro, Wommack, Denman & Mauro, Lake Jackson, for relator. Charles Stevenson, Asst. Dist. Atty., Angleton, for respondent. OPINION DUGGAN, Justice. This is an original mandamus proceeding in this court wherein relatorseeks a writ ofmandamus to compel the respondent, who is the County Judge of Brazoria County, Texas, to certifytothe CountyClerk of Brazoria County, Texas, relator's name tobe put on thegeneral election ballot in November, 1982,as a candidate for the office of County Judge. The jurisdiction of this court has been invoked pursuant to Tex.Elec.Code Ann. art. 13.41 (Vernon Supp.1982) and Tex.Rev. 760 Civ.Stat.Ann. arts. 1735a and 1823. The jurisdictional requirements have been demonstrated. Relator's positionmay be summarized briefly as follows: He maintainsthat he has met the statutory requirements for having his nameprinted on theofficialballotfor the generalelection in November, 1982, in the columnfor independent candidates.He maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge with hisNotice of Intent toRun as an Independent Candidate within thetime frame allowed under Tex.Elec.Code Ann. art. 13.12 (Vernon Supp.1982),and b) providing a written application signedby 686 eligible Brazoria County voters who had not voted in the May 1, 1982 primary election. Relator asserts further that his application exceeded the statutory requirement of500 eligible voters by 186 signatures, and thateach step was performed within the statutorytime periods. No primary run-off election fortheposition ofCounty Judge was required. Relator assertsfurther that he has communicated with respondent on fiveseparate occasions betweenJuly 12, 1982 and date of filing ofhis application for writ ofmandamuswith no response out of respondent as to why relator's namehasnot been certified. In this connection hesays further that unless respondent puts relator's name onthe ballot on or before September 18, 1982, relator may lose hisright to run.According to the provisions of Tex.Elec. Code Ann. art. 13.56(f) (Vernon Supp.1982)if relator is declared ineligiblebefore the 44th daybeforeelection day (November 2, 1982), his name may not be placedon theballot. Finally, relator asserts that in theevent that respondent decides onthe eveof the 44th day prior to election day thatrelator'sapplicationdoes not meet the statutory requirementsfor gaining a place on the ballot, there will be no time forrelator to obtain a judicial determination of his right to havehis name on theballot. Regarding the likelihood that this situationcouldoccur, relator pointsto the factthat, if his nameis on the ballotin November, he will be an opponent of the respondent for the veryposition whichrespondent now holds. In response to all of the foregoingrespondent'sstance may besummarized briefly as follows: Before awritof mandamus will issue, relator must have aclear legal right to performance ofthe act he seeks to compel. The dutyof the officer sought tobe compelled must be one clearlyfixed and required by the law, or the writ will not issue. Further, says respondent, the Court of Appeals has noauthority to issue writs of mandamusunless the facts are established without dispute. Provisions of the Election Codeconcerning the contentsof an independent candidate's application tobeplaced on the ballot at ageneral election are mandatory, andmust be strictly complied with. Tex.Elec.Code Ann.art. 13.50, (Vernon Supp.1982) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot: Subdivision 4. No applicationshall containthe name of more than one candidate for the same office; and ifany person signs the applicationof more than one candidate for the same office, the signature shall be void as to allsuch applications.No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary electionor the run-off primary election of any party shallsign an application in favor of anyone for an office for which a nomination was made at eithersuch primary election. An applicationmay not becirculated forsignatures until the day after the general primary electionday,or if a runoff primary election is held for the officesought by the applicant, until the day after therunoff primaryelection day. A signature obtained before the day an application may be circulated is void. Subdivision 5. In addition to the person's signature, theapplicationshall show each 761 signer's address, the number of his voter registration certificate, and thedate of signing. Respondent contends further thatthe names ofthose persons whosignedrelator'sapplication prior to the date of the primary runoff election are not valid and may not becounted. Respondent's key position in challenging the sufficiency of the application'sconformity with the requirements of the Election Code is that such requirements are mandatory, thatrelatormust strictly comply, and that the applications mustcontain a sufficient address. Respondent asserts that 133 of the signatures are invalid becausethey were obtained before June 6, 1982; further, that221more of the signatures are invalid because of incomplete address. Quite obviously, says respondent, theapplications contained only268 valid signatures, farshort of the required 500 valid signatures. Coming to grips now with thecrucial points raised in thisoriginal proceedingthis court complimentscounselfor both partieson their able briefs. We recognize first,as respondent urges, that beforea writ of mandamus will issue,relator must havea clearlegalright to performance of the act he seeks to compel; further,thattheduty of the officer sought tobe compelled must be one clearly fixed and required by the law, or the writ willnot issue. Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970); Bozarth v. City of Denison, 559S.W.2d 378 (Tex.Civ.App.Dallas 1977, no writ); Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.Houston [14th Dist.] 1982, no writ). In addition,the authoritiesare clear that theCourts of Appeals have no authority to issue writs of mandamus unless the factsare established without dispute. Bozarth, supra; Bigham v. Sutton, 565 S.W.2d 561 (Tex.Civ.App.Austin1978, no writ); Donald v. Carr, 407 S.W.2d 288(Tex. Civ.App.Dallas 1966, no writ). We are mindfulalso that, whereas provisions of electionlaws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McWaters v. Tucker, 249 S.W.2d 80 (Tex.Civ.App.Galveston 1952, no writ); Geiger v. DeBusk,534 S.W.2d 437 (Tex.Civ.App.Dallas 1976, no writ); Shields v. Upham, 597S.W.2d 502 (Tex.Civ.App.El Paso 1980, no writ). VALIDITY OF SIGNATURE DATES BEFORE JUNE 6, 1982 By respondent's own figures, there were133 signatures falling into this category. No factissuewhatever is involved in reaching that determination.Inconcluding whether the signatures on relator's application should be countedif the signature date is prior toJune 6, 1982, the date of the run-off election, but after the date of the general primary,Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) is determinative. We quote therefrom as follows:An Application may not be circulated for signatures until the day after the general primary election day or if a run-off primaryelection is heldfor the office sought by applicant, until the dayafter the runoff primary election day.(Emphasis added.) The emphasizedlanguage is the heart of the matterbecause it is uncontroverted that there was no runoff election for the office of County Judge ofBrazoria County in 1982. We hold, therefore, that the questioned 133 signaturesobtained before June 6, 1982 arevalid and should be added to the 268signatures recognized asvalid by respondent. In so holding we not onlyfollow the clear wording of thestatute, but we have thebenefit of Tex.Atty.Gen.Op.No. DAD-49 (1982)which states the question as follows at page 1. 1. Under Subdivision 4 of Article 13.50, is it permissible to have an application to run as an independent candidate that contains signatures dated before the runoff primaryelection if there is no primary runoff election for the particular office forwhich a persondesires, to run as an independentcandidate. At page 2 the answer to such question is given as follows: "1. V.A.T.S. Election Code, art. 13.50, subd. 4, states, inpart: 762An application maynot be circulated for signaturesuntil the dayafterthe	640 S.W.2d 758 (1982) Harmon _HOOT,_ Relator, _v._ _Edwin_ E. _BREWER,_ _County_ _Judge,_ Respondent. No. 01-82-0583-CV. Court of _Appeals_ of _Texas,_ Houston (1st Dist.). September 3, 1982. 759 Frank L. _Mauro,_ Wommack, Denman & Mauro, Lake _Jackson,_ for relator. Charles Stevenson, Asst. Dist. Atty., _Angleton,_ for respondent. OPINION DUGGAN, Justice. This is an _original_ mandamus proceeding in this _court_ _wherein_ relator seeks _a_ writ of mandamus to compel the respondent, who is _the_ County Judge of Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas, _relator's_ name to be put _on_ the general election ballot in November, 1982, as a candidate for the office of County Judge. The _jurisdiction_ of this court has _been_ invoked _pursuant_ to Tex.Elec.Code Ann. art. 13.41 _(Vernon_ Supp.1982) and Tex.Rev. 760 _Civ.Stat.Ann._ arts. 1735a and 1823. _The_ _jurisdictional_ requirements have been demonstrated. _Relator's_ position may _be_ _summarized_ briefly as follows: He maintains that he has _met_ _the_ statutory _requirements_ for having his _name_ printed on _the_ official ballot for the general election in November, 1982, in the _column_ for independent candidates. He maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge _with_ his Notice of _Intent_ to Run as an Independent Candidate within the time frame allowed under _Tex.Elec.Code_ Ann. art. _13.12_ (Vernon Supp.1982), and b) providing a written application signed by _686_ eligible Brazoria County voters _who_ had not voted in _the_ _May_ _1,_ 1982 primary election. _Relator_ asserts further that his application exceeded the _statutory_ requirement of 500 eligible _voters_ by 186 signatures, and that each step _was_ _performed_ _within_ _the_ statutory time periods. No primary run-off _election_ for the position of County Judge was _required._ Relator asserts further that he _has_ communicated _with_ respondent on five _separate_ occasions between _July_ _12,_ 1982 and date of filing of his application for writ of mandamus with no response out of respondent _as_ _to_ _why_ relator's name has _not_ been _certified._ In this connection he says further that unless respondent puts relator's name _on_ _the_ ballot on or before September 18, 1982, relator may _lose_ his right to run. According to the provisions of Tex.Elec. Code Ann. art. _13.56(f)_ _(Vernon_ Supp.1982) _if_ relator is declared ineligible before the 44th _day_ before election day _(November_ 2, 1982), his name may not be placed on _the_ ballot. Finally, relator asserts that in the event _that_ respondent decides on the eve of the 44th day prior to _election_ _day_ that relator's application _does_ not _meet_ the statutory requirements for gaining a place on the _ballot,_ _there_ will be no _time_ for _relator_ to obtain a judicial determination of his right to have his _name_ on the ballot. Regarding the _likelihood_ that this situation could occur, relator points to _the_ fact that, if his name _is_ on _the_ _ballot_ in _November,_ he will be an _opponent_ of the respondent for _the_ very _position_ which respondent now holds. In _response_ to all of the foregoing respondent's stance _may_ be summarized briefly as follows: Before a writ of mandamus will issue, relator must have _a_ clear legal right to performance of the act he seeks to compel. The _duty_ of the officer sought to be compelled _must_ be one _clearly_ fixed and required by the law, or the writ _will_ _not_ issue. _Further,_ says respondent, the Court of Appeals has no authority to _issue_ _writs_ of mandamus unless the facts are established without dispute. Provisions of _the_ Election Code _concerning_ the contents of _an_ independent candidate's application _to_ _be_ placed on the ballot at a general election are mandatory, and must _be_ _strictly_ complied with. Tex.Elec.Code _Ann._ art. 13.50, (Vernon Supp.1982) contains _the_ following provisions concerning the requisites of an _application_ of an independent candidate _to_ be _placed_ on the ballot: Subdivision _4._ No _application_ shall contain the name of more than one candidate for the same office; and if any _person_ signs _the_ application of _more_ than one candidate for _the_ same office, the signature _shall_ be void as to all such applications. No person shall sign such application unless he is _a_ qualified voter, _and_ no person who _has_ voted at either the general primary election or the run-off primary election of any party shall sign an application in _favor_ of anyone for an _office_ for _which_ a _nomination_ _was_ made at either such primary election. An application _may_ not be circulated _for_ _signatures_ until the day after the _general_ primary election day, or if a runoff primary election is held _for_ the _office_ sought by the applicant, _until_ the day after the _runoff_ primary election day. A _signature_ _obtained_ before the day an application _may_ be circulated is _void._ Subdivision 5. In addition to the person's signature, the application shall _show_ each 761 signer's address, the number of his _voter_ registration certificate, _and_ the date of _signing._ Respondent contends further _that_ the _names_ of those persons who signed relator's application prior _to_ the date of the primary _runoff_ election are not valid and _may_ _not_ _be_ _counted._ _Respondent's_ key position in challenging the _sufficiency_ _of_ the application's conformity with the _requirements_ _of_ the _Election_ Code is that such _requirements_ are mandatory, _that_ relator must _strictly_ _comply,_ and that the applications must contain a sufficient _address._ Respondent asserts that 133 of _the_ signatures are invalid because _they_ were obtained before June _6,_ 1982; further, _that_ 221 _more_ _of_ the signatures are invalid because of incomplete address. Quite obviously, says respondent, the applications contained only 268 valid _signatures,_ far _short_ of _the_ _required_ 500 _valid_ signatures. Coming to grips now with the crucial points raised in this original _proceeding_ this court compliments counsel for _both_ parties on their able briefs. We _recognize_ first, as _respondent_ urges, that before a writ _of_ _mandamus_ will _issue,_ _relator_ _must_ have a clear legal right to performance of the _act_ _he_ seeks to _compel;_ further, that the duty of _the_ officer sought to be compelled must be one clearly fixed and _required_ by the law, or _the_ writ will _not_ issue. Oney _v._ Ammerman, 458 S.W.2d _54_ (Tex. 1970); Bozarth v. City of Denison, 559 S.W.2d 378 (Tex.Civ.App.Dallas 1977, _no_ writ); _Blanchard_ v. Fulbright, 633 S.W.2d _617_ (Tex.App.Houston [14th Dist.] 1982, no writ). In addition, the authorities _are_ clear that _the_ Courts _of_ Appeals have no _authority_ to _issue_ writs _of_ _mandamus_ unless the _facts_ are established without _dispute._ _Bozarth,_ supra; Bigham v. Sutton, 565 _S.W.2d_ 561 (Tex.Civ.App.Austin 1978, _no_ writ); Donald v. _Carr,_ 407 S.W.2d 288 (Tex. Civ.App.Dallas 1966, no _writ)._ We are mindful _also_ _that,_ _whereas_ provisions of _election_ laws relating _to_ voters are _to_ be construed as _directory,_ the provisions of _election_ laws _governing_ the requirements of candidates are mandatory. McWaters v. _Tucker,_ 249 S.W.2d 80 (Tex.Civ.App.Galveston 1952, no writ); Geiger v. DeBusk, _534_ S.W.2d _437_ (Tex.Civ.App.Dallas 1976, no writ); _Shields_ v. _Upham,_ 597 S.W.2d 502 (Tex.Civ.App.El Paso _1980,_ no writ). VALIDITY OF _SIGNATURE_ DATES BEFORE JUNE 6, 1982 _By_ respondent's _own_ figures, there were 133 signatures _falling_ into _this_ category. No fact issue whatever _is_ involved _in_ _reaching_ that determination. In concluding whether the _signatures_ _on_ _relator's_ application _should_ be counted _if_ the _signature_ date is prior to _June_ 6, 1982, the date of the run-off election, but after the date of the general primary, Tex.Elec.Code _Ann._ art. 13.50 (Vernon Supp.1982) is determinative. We quote _therefrom_ as follows: An Application may _not_ _be_ _circulated_ for signatures until the day after the general primary election day or if _a_ run-off _primary_ _election_ is held for the office sought _by_ applicant, _until_ the day after _the_ runoff _primary_ election day. (Emphasis added.) The _emphasized_ language is the _heart_ of _the_ matter _because_ it is _uncontroverted_ that there was _no_ runoff election _for_ _the_ _office_ _of_ County Judge of _Brazoria_ _County_ _in_ 1982. We hold, therefore, _that_ _the_ questioned 133 signatures _obtained_ before June 6, 1982 are _valid_ _and_ should be _added_ to the _268_ signatures _recognized_ as valid by respondent. In so holding we _not_ only follow the clear wording of _the_ statute, but we have the _benefit_ _of_ Tex.Atty.Gen.Op. No. DAD-49 (1982) which _states_ the _question_ as follows _at_ page 1. _1._ Under _Subdivision_ 4 of Article 13.50, is it permissible to have _an_ application to run as an independent _candidate_ _that_ contains _signatures_ dated before the runoff primary election if there _is_ no _primary_ _runoff_ election for the particular office _for_ _which_ a person _desires,_ to _run_ as an independent candidate. At page 2 the _answer_ to _such_ question is given as follows: "1. V.A.T.S. Election _Code,_ _art._ 13.50, subd. 4, states, in part: 762 An application _may_ not be circulated for signatures until the day after the
Fourth Court of Appeals San Antonio, Texas October 11, 2018 No. 04-18-00475-CV IN THE INTEREST OF N.F.M. AND S.R.M., From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00070 Honorable John D. Gabriel, Jr., Judge Presiding ORDER Appellant has filed a motion for an extension of time to file the appellant’s brief because, in part, appellant’s motion for en banc reconsideration regarding this court’s briefing order is still pending. Appellant requests an additional 20 days from the date this court rules on appellant’s en banc motion. We grant the motion for an extension of time in part and ORDER that the deadline for redrawing the appellant’s brief, set by this court’s September 21, 2018 order, is suspended pending further order of this court. _________________________________ Luz Elena D. Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of October, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court	fourth court of appeals san antonio, texas october 13, 2018 no. 04 - 18 - 00475 - 72 in the interest of n. f. m. and s. r. m., from the 57th judicial district court, bexar plaza, texas trial court no. 2017pa00070 honorable roberto d. gabriel, jr., judge presiding order appellant has filed a motion for an expired of time to file the appellant ’ s brief because, during part, appellant ’ s motion for en banc reconsideration regarding this court ’ s briefing order is still pending. appellant requests an additional 20 days from the date this court rules on appellant ’ s en panel motion. we grant its motion for future extension of time in part and order that the deadline for redrawing the appellant ’ s brief, set by this court ’ a september 21, 2018 order, is suspended pending further order of this court. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ luz elena d. chapa, justice in witness whereof, i have hereunto set my hand and affixed the seal of the said court on this 11th day of october, 2018. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ keith e. hottle, clerk of court	Fourth Court of Appeals San Antonio, Texas October 11, E01I No. 04 - 18 - 00475 - CV IN THE INTsRExT OF N. F. M. AND S. R. M. , From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00070 Honorable John D. Gabriel, Jr. , Judge Presiding ORXE5 Appellant has GilFd a motion for an extension of time to file the appellant ’ s brief because, in part, appellant ’ s motion for en nans reconsideration regarding this court ’ s briefing order is still pending. Appellant requests an additional 20 faGs from the date this court rules on appellant ’ s en banc motion. We grant the motion for an extension of time in part and ORDER that the deadline for redrawing the appellant ’ s brief, set by this court ’ s SeptFkber 21, 20@& order, is suspended pending further order of this court. _________________________________ Luz Elena D. Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Qxid court on this 11th day of October, 2018. ___________________________________ KEITH E. HOTTLE, ClRr< of Court	Fourth Court of Appeals San Antonio, Texas October 11, 2018 No. IN INTEREST N.F.M. AND S.R.M., From the 57th Judicial District Bexar County, Texas Court No. 2017PA00070 Honorable John D. Gabriel, Jr., Judge Presiding ORDER Appellant has filed a motion for an of time to file the appellant’s brief because, in part, appellant’s motion for en banc reconsideration regarding court’s briefing order is still pending. Appellant requests an additional 20 days from the date this court rules on appellant’s en banc motion. We grant the for extension of time in part and ORDER that the deadline for redrawing the appellant’s brief, set by this court’s September 21, order, is suspended pending order this court. _________________________________ Luz Elena Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my affixed the seal of the said court on this 11th day of October, ___________________________________ KEITH E. HOTTLE, Clerk of Court	fOURTH COURT OF APPeaLs saN aNtOnio, TeXaS octObeR 11, 2018 NO. 04-18-00475-CV In ThE interEST of n.F.m. AnD s.r.M., fRoM The 57Th judIcial DIStRIct courT, bExAR coUNTy, teXAS TrIAl COURT no. 2017pa00070 hoNoRaBlE JOHN D. gABRieL, JR., JuDge PrESidinG orDEr aPpeLlAnt HAs FiLeD a MOTIon FOR an EXteNSIoN OF time TO FILe tHe apPEllANT’s bRieF BECAuSE, iN paRt, aPpELlaNt’s mOtiON fOR en banc ReconSideRATiOn RegarDing tHIs CoUrt’s brieFINg oRDeR is sTILl PEndInG. APPeLLAnT requESts an aDDiTiOnAl 20 DaYS FROm THE DATe THiS CouRt ruLes on apPEllANT’s en BAnc Motion. we granT the motioN FOR AN EXteNsIon oF TIme IN ParT ANd oRder thaT thE DEADLINe foR RedraWiNG THe ApPeLlANT’s brIEF, set by THiS cOUrT’S SepTEMBER 21, 2018 OrDER, IS SuSPENDeD PEndINg fuRTHer OrDer oF ThIS COurt. _________________________________ luz eLEnA D. cHapa, JustiCe in witness WHereof, i hAVE hEreunTO SEt MY HaNd anD affixeD ThE sEAL Of THe SAId cOURT On This 11th Day Of OcTOBEr, 2018. ___________________________________ KEItH E. HOtTle, cleRK Of CoURT	Fourth Court of Appeals San Antonio, Texas October 11, 2018 No. 04-18-00475-CV IN THE INTEREST OF N.F.M. AND S.R.M., From the 57th Judicial District Court,BexarCounty, Texas Trial Court No. 2017PA00070 Honorable John D. Gabriel, Jr., Judge Presiding ORDER Appellanthas filed a motion for an extension of time to file the appellant’s briefbecause, in part,appellant’smotion for en banc reconsideration regarding this court’s briefing order is still pending.Appellant requests an additional 20 daysfromthe date this court rules on appellant’s en banc motion. We grantthe motion for anextension of time in part andORDER that the deadlinefor redrawingthe appellant’s brief, set by this court’s September21, 2018 order, is suspended pending further order of this court. _________________________________ Luz Elena D.Chapa, Justice IN WITNESS WHEREOF, I have hereunto set myhand and affixed the sealof the said court on this 11th dayof October, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court	Fourth _Court_ of Appeals _San_ Antonio, Texas October 11, _2018_ No. 04-18-00475-CV IN THE INTEREST OF N.F.M. AND S.R.M., _From_ the 57th Judicial District Court, Bexar County, _Texas_ Trial _Court_ No. _2017PA00070_ Honorable John _D._ Gabriel, Jr., Judge Presiding ORDER Appellant has filed _a_ motion _for_ _an_ _extension_ of time to file the _appellant’s_ brief because, in part, appellant’s motion for _en_ banc reconsideration _regarding_ this court’s briefing order is _still_ pending. Appellant requests an additional _20_ _days_ from the date _this_ _court_ rules on appellant’s en banc motion. We grant the motion for _an_ extension of _time_ in part and ORDER _that_ the deadline for redrawing the appellant’s brief, set by this court’s September 21, 2018 order, is _suspended_ pending further order of _this_ court. _________________________________ Luz Elena D. _Chapa,_ Justice IN WITNESS _WHEREOF,_ I have hereunto set my hand and affixed the seal of the said court on this 11th day of October, _2018._ ___________________________________ KEITH E. HOTTLE, Clerk of _Court_
Order filed October 6, 2016 In The Fourteenth Court of Appeals ____________ NO. 14-15-00634-CV ____________ POWELL DORFAYE, ET AL, Appellant V. BRECKENRIDGE AT CITY VIEW APARTMENTS, Appellee On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1064270 ORDER On August 12, 2015, this court abated this appeal because appellant petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 15-33972. See Tex. R. App. P. 8.2. Through the Public Access to Court Electronic Records (PACER) system, the court has learned that the bankruptcy case was closed on October 21, 2015. The parties failed to advise this court of the bankruptcy court action. Unless within 20 days of the date of this order, any party to the appeal files a motion demonstrating good cause to retain this appeal, this appeal will be reinstated and dismissed for want of prosecution. PER CURIAM	order filed october 6, 2016 in the fourteenth court of appeals _ _ _ _ _ _ _ _ _ _ _ _ no. 14 - 15 - 00634 - cv _ _ _ _ _ _ _ _ _ _ _ _ powell dorfaye, et al, appellant v. breckenridge at city view apartments, appellee on appeal from the county civil court at law no. 2 harris county, texas trial court cause no. 1064270 order on august 12, 2015, this court abated this decision because appellant petitioned for voluntary bankruptcy in federal united states bankruptcy court for the southern district of texas, under cause number 15 - 33972. see tex. r. app. p. 8. 2. through the public access administrative court procedure records ( pacer ) system, the court has learned that the bankruptcy petition was closed on october 21, 2015. both parties failed to advise this court of the bankruptcy court action. unless within 20 days of the date of this appeal, any party to the appeal files a motion demonstrating good intent to retain this appeal, another appeal will be reinstated and dismissed for relief of prosecution. per curiam	Order filed 0ctIber 6, 2016 In The Fourteenth Co7r5 of Appeals ____________ NO. 14 - 15 - 00634 - CV ____________ POWELL DORFauE, ET AL, Appellant V. BRECKENRIDGE AT CITY VIEW APARTMENTS, Appellee On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1064270 OFVER On August 12, 2015, this flurt abated this appeal because appellant petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 15 - 33972. See Tex. R. App. P. 8. 2. Through the Public Access to Court Electronic Records (PACER) system, the court has learned %haY the bankruptcy case was closed on October 21, 2015. The paDtKes failed to advise this ck&rt of the bankruptcy court action. Unless within 20 days of the date of this irde%, any party to the appeal files a motion demonstrating good cause to retain this appeal, this appeal will be reinstated and dismissed for want of prosecution. PER CU#lAM	filed October 6, 2016 In The Fourteenth Court of Appeals ____________ NO. 14-15-00634-CV ____________ POWELL DORFAYE, ET AL, Appellant BRECKENRIDGE AT CITY VIEW APARTMENTS, Appellee On Appeal from the County Civil Court at No. 2 Harris County, Texas Trial Court Cause No. ORDER On August 12, 2015, court abated this petitioned for voluntary bankruptcy in the United States Bankruptcy Court the Southern District of Texas, under cause number 15-33972. See Tex. R. App. P. 8.2. Through the Access to Court Electronic Records system, the court has learned that the case was closed on October 21, 2015. The parties failed to advise this court of the bankruptcy court action. Unless within days of the date of order, any party to the appeal files a motion demonstrating good cause to retain this appeal, this appeal will be reinstated and dismissed for want of PER CURIAM	orDer fiLED OCtoBer 6, 2016 iN thE FourTeENTH couRt of apPEAls ____________ nO. 14-15-00634-CV ____________ PowELL DORFaYe, eT Al, aPpElLANT v. bRecKeNriDge at CItY VIEW APArtmenTs, ApPElleE ON aPPeAl fROm tHE CounTY cIvIL COuRT aT lAw No. 2 hARRIS CouNtY, teXas TrIaL court cAuse NO. 1064270 OrdEr On AUGuSt 12, 2015, tHis COUrT ABATED THiS appeaL BeCaUse apPElLant PetITIOnEd fOR VoluNtaRY BANKrUPTcy In The uNited sTAteS BaNkruPTCy couRt foR thE SoUTHeRN DISTRIct Of TEXas, under cAusE NUmBER 15-33972. sEe teX. R. aPP. p. 8.2. thRoUGH ThE puBlIC aCCesS TO COurT ELeCtRonIc recORDs (PAceR) SyStEM, The coUrT haS LEARNEd tHAt THE banKRupTcy cASe wAS cloSed oN OcTOBeR 21, 2015. tHE pARTieS FaIleD tO adVISE THIS CoUrT oF thE bANkRuPTCY CouRt ACTiON. uNless WiThin 20 DAyS OF The dAte OF thIs order, Any paRty To THE appeal files a MOtiOn DEMoNStrAtInG GOoD cAuSe tO retaiN tHIs APPEaL, tHiS APpeaL will BE reINstaTeD And DISmISSeD foR WaNt Of PROSecutiOn. PeR cuRIam	Order filedOctober 6, 2016 In The Fourteenth Court of Appeals ____________ NO.14-15-00634-CV ____________ POWELL DORFAYE, ETAL, Appellant V. BRECKENRIDGE AT CITYVIEWAPARTMENTS, Appellee On Appealfrom the CountyCivil Court at Law No. 2 Harris County,Texas Trial Court Cause No. 1064270 ORDER On August 12, 2015, this court abated this appealbecause appellant petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 15-33972. See Tex. R. App. P. 8.2. Through the Public Access to Court Electronic Records(PACER) system, the court has learned that the bankruptcy case was closed on October 21, 2015. Theparties failed toadvise this court of the bankruptcy court action. Unless within 20 days ofthe date of this order,any partyto the appeal files amotion demonstrating good cause to retain this appeal, thisappeal will be reinstated and dismissed for want of prosecution. PER CURIAM	Order filed October _6,_ _2016_ In The Fourteenth Court _of_ Appeals ______________ NO. 14-15-00634-CV ____________ POWELL DORFAYE, ET AL, Appellant V. BRECKENRIDGE _AT_ CITY VIEW APARTMENTS, _Appellee_ On Appeal from _the_ County Civil Court _at_ Law No. 2 Harris County, Texas _Trial_ Court _Cause_ No. 1064270 ORDER _On_ August 12, 2015, this _court_ abated this appeal _because_ appellant petitioned for voluntary bankruptcy in the United _States_ Bankruptcy Court for the Southern District of Texas, under cause number 15-33972. See Tex. R. App. _P._ 8.2. Through the Public Access to Court Electronic _Records_ (PACER) system, the court has learned that the bankruptcy case was closed _on_ October _21,_ _2015._ _The_ parties _failed_ to advise this court _of_ the bankruptcy court action. Unless within _20_ _days_ of the date of this order, any party to the _appeal_ files a motion demonstrating good cause to _retain_ this appeal, this appeal _will_ be reinstated and dismissed for want of prosecution. PER CURIAM
252 N.J. Super. 660 (1991) 600 A.2d 525 THELMA LAUTENSLAGER, PLAINTIFFS, v. SUPERMARKETS GENERAL CORPORATION, DEFENDANT. Superior Court of New Jersey, Law Division Union County. Decided June 28, 1991. 661 Patricia Breuninger (Breuninger, Hansen & Casale, Esqs.), for plaintiff. Hal R. Crane, Corporate Counsel for Supermarkets General Corporation. OPINION MENZA, J.S.C. Defendant moves for partial summary judgment. The question presented is which statute of limitations is applicable to a NJLAD case based on employment discrimination. On May 11, 1989, the plaintiff filed a complaint alleging a continuing pattern of employment discrimination on the part of her current employer, Supermarkets General Corporation. Specifically, the plaintiff contends that she was denied promotional opportunities from 1979 to the present, and that positions for which she was equally qualified were given to younger, usually male employees. Count One of the Complaint alleges violations of the New Jersey Laws Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq. The defendant moves for a partial dismissal of the plaintiff's claims on the grounds that the two-year statute of limitations governing personal injury actions controls the NJLAD claim. The defendant contends, therefore, that all claims of discrimination that relate to events prior to May 11, 1987, are time barred by application of the statute. The plaintiff argues that the two-year statute is inapplicable to her claims, and that N.J.S.A. 2A:14-1, which provides a six-year statute for actions sounding in property rights, is the most befitting for discrimination claims. The NJLAD statute does not specify a statute of limitations period of limitations for actions involving employment discrimination. The limitation of actions statutes provide: 662 Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants shall be commenced within 6 years next after the cause of any such action shall have accrued. (N.J.S.A. 2A:14-1). Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued. (N.J.S.A. 2A:14-2). In Leese v. Doe, 182 N.J. Super. 318, 440 A.2d 1166 (Law Div. 1981), the court addressed the question of which statute of limitations was applicable to the NJLAD claims based on sex discrimination. The court held that the plaintiff's employment discrimination claim was governed by the six year statute of limitations set forth in N.J.S.A. 2A:14-1. In doing so, the court analogized the NJLAD claim to a claim brought under its federal counterpart, 42 U.S.C. § 1981 and cited as authority for its holding the case of Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir.1978). The Davis case held that a petitioner's § 1981 complaint was one which sounded in property rights, and was therefore actionable under Pennsylvania's six-year statute. The Davis court said: Plaintiff's complaint cites incidents of abuse and of personal property damage, but not of bodily injury. The gravamen of the complaint does not concern Mrs. Davis' interest in personal security, but rather involves unlawful interference with her rights as an employee. Mrs. Davis implicitly asserts a right to good faith efforts by an employer to correct instances of co-worker racial harassment and a right not to be discharged for complaining of such incidents. Essentially, Mrs. Davis complains that U.S. Steel Supply demeaned her and fired her because of her race. (Id. at p. 338). In Skadegaard v. Farrell, 578 F. Supp. 1209 (D.N.J. 1984), the court, also relying on Davis, held that the six year statute was applicable to a NJLAD case based on sexual harassment. The court said: 663 The relief sought by plaintiff is the key to characterization of a cause of action for statute of limitation purposes, and as in Davis, [i]n terms of legal relief, plaintiff's complaint does not seek damages for bodily injury.' (Id. at p. 1214). The Davis case, the premise for the Leese and Skadegaard cases, was reversed by the United States Supreme Court in Goodman v. Lukens Steel, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). In that case, which involved racial discrimination, the Supreme Court held that federal courts should select the most applicable state statute of limitations for § 1981 claims, and that the applicable state statute should be the one governing personal injury claims. The court said: Section 1981 has a much broader focus than contractual rights ... [It] asserts in effect that competence and capacity to contract shall not depend on race. It is thus part of a federal law barring racial discrimination, which, as the court of appeals said, is a fundamental injury to the individual rights of a person ... The Court of Appeals was correct in selecting the Pennsylvania 2-year limitation period governing personal injury actions. (Id. at 661-662, 107 S.Ct. at 2620-2621). In White v. Johnson & Johnson, 712 F. Supp. 33 (D.N.J. 1989), the District Court applying Goodman rejected Leese and Skadegaard, and held that the two year statute was applicable. The court said: The New Jersey Supreme Court has not yet ruled on the appropriate statute of limitations in an action under NJLAD. (citation omitted). In the absence of an authoritative pronouncement from the state's highest court, the task of a federal court is to predict how that court would rule.' (citation omitted). ........ The only New Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 N.J. Super. 318, 321, 440 A.2d 1166, 1168 (Law Div. 1981), which ruled that the six-year statute pertaining to claims for injury to property governs NJLAD claims ... Importantly, however, both Leese and one of the federal cases following it based their holding on the Third Circuit case that was overruled by Goodman in the § 1981 context, namely, Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1989). ........ Although it [NJLAD] has wide-ranging economic consequences, it is fundamentally aimed at eliminating the injury that racial discrimination causes to the person of the aggrieved. ........ 664 The Court can only assume that if the issue were before the highest court of New Jersey, that court would do as the Superior Court did in Leese and look to federal law for guidance, but would find the current federal guidance (in contrast to what existed at the time of Leese), to favor application of the personal injury statute of limitations to NJLAD claims. Thus, the Court agrees with defendants the New Jersey Supreme Court would most likely apply the two-year limitations period of N.J.S.A. § 2A:14-1 [sic][1] to NJLAD claims. (Id. at 37-38). Although there are no New Jersey decisions which have specifically addressed the question, it appears that the New Jersey courts do apply the six year statute of limitations. In Nolan v. Otis Elevator Co., 197 N.J. Super. 468, 485 A.2d 312 (App.Div. 1984), rev'd on other grounds, 102 N.J. 30, 505 A.2d 580 (1986), cert. den., 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 38 (1986), a case decided before Goodman, the Supreme Court, in reversing the Appellate Division held that the federal age discrimination in employment act preempted a state court action which was brought under NJLAD after the expiration of the statute of limitations governing the federal act. Although the Supreme Court did not specifically state the statute of limitations applicable to NJLAD claims, the Appellate Division did do so but did it in dicta and without explanation. The court said: Defendant contends here that the action is barred by the time limitations expressed in the New Jersey Law Against Discrimination and the statute of limitations, N.J.S.A. 2A:14-2. ........ ... [W]e conclude that the applicable time limitation is that stated in N.J.S.A. 2A:14-1 "6 years next after the cause of action shall have accrued. (197 N.J. Super. p. 473-474, 485 A.2d 312). And in Fisher v. Quaker Oats, 233 N.J. Super. 319, 559 A.2d 1 (App.Div. 1989), the court, in the first sentence of its opinion	252 n. j. super. 660 ( 1991 ) 600 min. 2d 525 thelma lautenslager, plaintiffs, v. supermarkets general corporation, defendant. superior court of new jersey, law division union county. decided june 28, 1991. * plaintiff patricia breuninger ( breuninger, hansen & casale, esqs. ), for plaintiff. hal r. crane, corporate counsel for supermarkets general corporation. opinion menza, j. s. c. defendant moves for partial summary judgment. the question presented is which statute of limitations is applicable to a njlad case based on employment discrimination. on may 26, 1989, the plaintiff filed a complaint alleging a continuing pattern of employment discrimination on the part of her current employer, supermarkets general corporation. specifically, the plaintiff contends that she was denied promotional jobs from 1979 to the present, and promotional positions for which she was equally qualified were given to younger, usually male employees. count one of the complaint alleges violations of the new jersey laws against discrimination ( njlad ), n. j. s. a. 10 : 5 - 1 et seq. the defendant moves for a partial dismissal of the plaintiff ' s claims on the grounds that the two - year statute of limitations governing personal injury actions controls the njlad claim. the defense contends, therefore, that all claims of interest to relate to events prior to may 11, 1987, are time barred by application of the statute. the plaintiff argues that the two - year statute is inapplicable to her claims, and that n. j. s. a. 2a : 14 - 1, thus provides a six - year statute for actions sounding in property rights, is the most befitting for discrimination claims. the njlad statute does not specify a statute of limitations period of limitations for actions involving employment discrimination. the limitation of weakness statutes provide : * 662 every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2a : 14 - 2 and 2a : 14 - 3 of this title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants shall be commenced within 6 years next after the cause of any such action shall have accrued. ( n. j. s. a. 2a : 14 - 1 ). every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued. ( n. j. s. a. 2a : 14 - 2 ). in leese v. doe, 182 n. j. super. 318, 440 a. 2d 1166 ( law div. 1981 ), the court addressed the question of which statute of limitations was applicable to the njlad claims based on sex discrimination. the court held that the plaintiff ' s employment discrimination claim was governed by the six year statute of limitations set forth in n. j. s. a. 2a : 14 - 1. in doing so, the court analogized the njlad claim to a claim brought under its federal counterpart, 42 u. s. c. § 1981 and cited as authority for its holding the case of davis v. united states steel supply, 581 f. 2d 335 ( 3rd cir. 1978 ). the davis case held that a petitioner ' s § 1981 complaint was one which sounded in property rights, and was therefore actionable under pennsylvania ' s six - year statute. the davis court said : plaintiff ' s complaint cites incidents of abuse and of personal property damage, but not of bodily injury. the gravamen of the complaint does not concern mrs. davis ' interest in personal security, but rather involves unlawful interference with her rights as an employee. mrs. davis implicitly asserts a right to good faith efforts by an employer to correct instances of co - worker racial harassment and a right not to be discharged for complaining of such incidents. essentially, mrs. davis complains that u. s. steel supply demeaned her and fired her because of her race. ( id. at p. 338 ). in skadegaard v. farrell, 578 f. supp. 1209 ( d. n. j. 1984 ), the court, also relying on davis, held that the six year statute was applicable to a njlad case based on sexual harassment. the court said : * 663 the relief sought by plaintiff is the key to characterization of a cause of action for statute of limitation purposes, and as in davis, [ i ] n terms of legal relief, plaintiff ' s complaint does not seek damages for bodily injury. ' ( id. at p. 1214 ). the davis case, the premise for the leese and skadegaard cases, was reversed by the united states supreme court in goodman v. lukens steel, 482 u. s. 656, 107 s. ct. 2617, 96 l. ed. 2d 572 ( 1987 ). in that case, which involved racial discrimination, the supreme court held that federal courts should select the most applicable state statute of limitations for § 1981 claims, and that the applicable state statute should be the one governing personal injury claims. the court said : section 1981 has a much broader focus than contractual rights... [ it ] asserts in effect that competence and capacity to contract shall not depend on race. it is thus part of a federal law barring racial discrimination, which, as the court of appeals said, is a fundamental injury to the individual rights of a person... the court of appeals was correct in selecting the pennsylvania 2 - year limitation period governing personal injury actions. ( id. at 661 - 662, 107 s. ct. at 2620 - 2621 ). in white v. johnson & johnson, 712 f. supp. 33 ( d. n. j. 1989 ), the district court applying goodman rejected leese and skadegaard, and held that the two year statute was applicable. the court said : the new jersey supreme court has not yet ruled on the appropriate statute of limitations in an action under njlad. ( citation omitted ). in the absence of an authoritative pronouncement from the state ' s highest court, the task of a federal court is to predict how that court would rule. ' ( citation omitted )......... the only new jersey state case cited by the parties that has addressed the issue is leese v. doe, 182 n. j. super. 318, 321, 440 a. 2d 1166, 1168 ( law div. 1981 ), which ruled that the six - year statute pertaining to claims for injury to property governs njlad claims... importantly, however, both leese and one of the federal cases following it based their holding on the third circuit case that was overruled by goodman in the § 1981 context, namely, davis v. united states steel supply, 581 f. 2d 335 ( 3d cir. 1989 )......... although it [ njlad ] has wide - ranging economic consequences, it is fundamentally aimed at eliminating the injury that racial discrimination causes to the person of the aggrieved......... * 664 the court can only assume that if the issue were before the highest court of new jersey, that court would do as the superior court did in leese and look to federal law for guidance, but would find the current federal guidance ( in contrast to what existed at the time of leese ), to favor application of the personal injury statute of limitations to njlad claims. thus, the court agrees with defendants the new jersey supreme court would most likely apply the two - year limitations period of n. j. s. a. § 2a : 14 - 1 [ sic ] [ 1 ] to njlad claims. ( id. at 37 - 38 ). although there are no new jersey decisions which have specifically addressed the question, it appears that the new jersey courts do apply the six year statute of limitations. in nolan v. otis elevator co., 197 n. j. super. 468, 485 a. 2d 312 ( app. div. 1984 ), rev ' d on other grounds, 102 n. j. 30, 505 a. 2d 580 ( 1986 ), cert. den., 479 u. s. 820, 107 s. ct. 84, 93 l. ed. 2d 38 ( 1986 ), a case decided before goodman, the supreme court, in reversing the appellate division held that the federal age discrimination in employment act preempted a state court action which was brought under njlad after the expiration of the statute of limitations governing the federal act. although the supreme court did not specifically state the statute of limitations applicable to njlad claims, the appellate division did do so but did it in dicta and without explanation. the court said : defendant contends here that the action is barred by the time limitations expressed in the new jersey law against discrimination and the statute of limitations, n. j. s. a. 2a : 14 - 2............ [ w ] e conclude that the applicable time limitation is that stated in n. j. s. a. 2a : 14 - 1 " 6 years next after the cause of action shall have accrued. ( 197 n. j. super. p. 473 - 474, 485 a. 2d 312 ). and in fisher v. quaker oats, 233 n. j. super. 319, 559 a. 2d 1 ( app. div. 1989 ), the court, in the first sentence of its opinion	252 N. J. Super. 660 (1991) 600 A. 2d 525 THELMA LAUTENSLAGER, PLAINTIFFS, v. SUPERMARKETS GENERAL CORPORATION, DEFENDANT. Superior Court of New Jersey, Law Division Union County. Decided June 28, 1991. * 661 Patricia Breuninger (Breuninger, Hansen & Casale, Esqs. ), for plaintiff. Hal R. Crane, Corporate Counsel for Supermarkets General Corporation. OPINION MENZA, J. S. C. Defendant moves for partial summary judgment. The question presented is which statute of limitations is applicable to a NJLAD case based on employment discrimination. On May 11, 1989, the plaintiff filed a Domplainh alleging a continuing pattern of employment discrimination on the part of her current employer, Supermarkets General Corporation. Specifically, the plaintiff contends that she was denied promotional opportunities from 1979 to the present, and that positions for which she was equally qualified were given to younger, usually male employees. Count One of the Complaint alleges violations of the New Jersey Laws Against Discrimination (NJLAD ), N. J. S. A. 10: 5 - 1 et seq. The defendant moves for a partial dismissal of the plaintiff ' s claims on the grounds that the two - year statute of limitations governing personal injury actions controls the NJLAD claim. The defendant contends, therefore, that all claims of discrimination that relate to events prior to May 11, 1987, are time barred by application of the statute. The plaintiff aTgueW that the two - year statute is inapolicabl2 to her claims, and that N. J. S. A. 2A: 14 - 1, which provides a six - year statute for actions sounding in property rights, is the most befitting for discrimination claims. The NJLAD statute does not specify a statute of limitations period of limitations for actions involving employment discrimination. The limitation of actions statutes provide: * 662 Every action at law for trespass to real property, for any tortious injury to Eea, or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A: 14 - 2 and 2A: 14 - 3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants shall be commenced within 6 years next after the cause of any such action shall have accrued. (N. J. S. A. 2A: 14 - 1 ). Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued. (N. J. S. A. 2A: 14 - 2 ). In Leese v. Doe, 182 N. J. Super. 318, 440 A. 2d 1166 (Law Div. 1981 ), the court addressed the question of which statute of limitations was applicable to the NJLAD claims based on sex discrimination. The court held that the plaintiff ' s employment discrimination claim was governed by the six year statute of limitations set forth in N. J. S. A. 2A: 14 - 1. In doing so, the court analogized the NJLAD claim to a claim brought under its federal counterpart, 42 U. S. C. § 1981 and cited as authority for its holding the case of Davis v. United States Steel Supply, 581 F. 2d 335 (3rd Cir. 1978 ). The Davis case held that a petitioner ' s § 1981 complaint was one which sounded in property rights, and was therefore actionable under Pennsylvania ' s six - year statute. The Davis court said: Plaintiff ' s complaint cites incidents of abuse and of personal property damage, but not of bodily injury. The gravamen of the complaint does not concern Mrs. Davis ' interest in personal security, but rather involves unlawful interference with her rights as an employee. Mrs. Davis implicitly asserts a right to good faith efforts by an employer to correct instances of co - worker racial harassment and a right not to be discharged for complaining of such incidents. Essentially, Mrs. Davis complains that U. S. Steel Supply demeaned her and fired her because of her race. (Id. at p. 338 ). In Skadegaard v. Farrell, 578 F. Supp. 1209 (D. N. J. 1984 ), the court, also relying on Davis, held that the six year statute was applicable to a NJLAD case based on sexual harassment. The court said: * 663 The relief sought by plaintiff is the key to characterization of a cause of action for statute of lumitat9on purposes, and as in Davis, [i] n terms of legal relief, plaintiff ' s complaint does not seek damages for bodily injury. ' (Id. at p. 1214 ). The Davis case, the premise for the Leese and Skadegaard cases, was reversed by the United States Supreme Court in FoodmAn v. Lukens Steel, 482 U. S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987 ). In that case, which involved racial discrimination, the Supreme Court held that federal courts should select the most applicable state statute of limitations for § 1981 claims, and that the applicable state statute should be the one governing personal injury claims. The court said: Section 1981 has a much broader focus than contractual rights. .. [It] asserts in effect that competence and capacity to contract shall not depend on race. It is thus part of a federal law barring racial discrimination, which, as the court of appeals said, is a fundamental injury to the individual rights of a person. .. The Court of Appeals was correct in selecting the PennsylvSn8a 2 - year limitation period governing personal injury actions. (Id. at 661 - 662, 107 S. Ct. at 2620 - 2621 ). In White v. Johnson & Johnson, 712 F. Supp. 33 (D. N. J. 1989 ), the District Court applying Goodman rejected Leese and Skadegaard, and held that the two year statute was applicable. The court said: The New Jersey Supreme Court has not yet ruled on the appropriate statute of limitations in an action under NJLAD. (citation omitted ). In the absence of an authoritative pronouncement from the state ' s highest court, the task of a federal court is to predict how that court would rule. ' (citation omitted ). .. .. .. .. The only New Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 N. J. Super. 318, 321, 440 A. 2d 1166, 1168 (Law Div. 1981 ), which ruled that the six - year statute pertaining to claims for injury to property governs NJLAD claims. .. Importantly, however, both Leese and one of the federal cases following it based their holding on the Third Circuit cxae that was overruled by Goodman in the § 1981 context, namely, Davis v. United States Steel Supply, 581 F. 2d 335 (3d Cir. 1989 ). .. .. .. .. Although it [NJLAD] has wide - ranging economic consequences, it is fundamentally aimed at eliminating the injury that racial discrimination causes to the person of the aggrieved. .. .. .. .. * 664 The Court can only assume that if the issue were before the highest court of New Jersey, that court would do as the Superior Court did in Leese and look to federal law for guidance, but would find the current federal guidance (in contrast to what existed at the time of Leese ), to favor application of the personal injury statute of limitations to NJLAD claims. Thus, the Court agrees with defendants the New Jersey Supreme Court would most likely apply the two - year limitations period of N. J. S. A. § 2A: 14 - 1 [sic] [1] to NJLAD claims. (Id. at 37 - 38 ). Although there are no New Jersey decisions which have specifically addressed the question, it appears that the New Jersey co trrs do apply the six year statute of limitations. In Nolan v. Otis Elevator Co. , 197 N. J. Super. 468, 485 A. 2d 312 (App. Div. 1984 ), rev ' d on other grounds, 102 N. J. 30, 505 A. 2d 580 (1986 ), cert. den. , 479 U. S. 820, 107 S. Ct. 84, 93 L. Ed. 2d 38 (1986 ), a case decided before Goodman, the Supreme Court, in reversing the Appellate Division held that the federal age discrimination in employment act preempted a state court action which was brought under NJLAD after the expiration of the statute of limitations governing the federal act. Although the Supreme Court did not specifically state the statute of limitations applicable to NJLAD claims, the Appellate Division did do so but did it in dicta and without explanation. The court said: Defendant contends here that the action is barred by the time limitations expressed in the New Jersey Law Against Discrimination and the statute of limitations, N. J. S. A. 2A: 14 - 2. .. .. .. .. .. . [W] e conclude that the applicable time limitation is that stated in N. J. S. A. 2A: 14 - 1 " 6 years next after the caJsW of action shall have accrued. (197 N. J. Super. p. 473 - 474, 485 A. 2d 312 ). And in Fisher v. Quaker Oats, 233 N. J. Super. 319, 559 A. 2d 1 (App. Div. 1989 ), the court, in the first sentence of its opinion	252 N.J. Super. 660 (1991) 525 THELMA LAUTENSLAGER, PLAINTIFFS, GENERAL CORPORATION, DEFENDANT. Superior Court of Jersey, Law Division Union County. Decided June 28, 1991. 661 Patricia Breuninger (Breuninger, Hansen & Casale, Esqs.), for plaintiff. Hal R. Crane, Corporate Counsel for Supermarkets General Corporation. MENZA, J.S.C. Defendant moves for partial summary The question presented is which statute of limitations is applicable to a NJLAD case based on discrimination. On May 11, 1989, the filed a complaint alleging a continuing pattern of employment discrimination on the part of her current employer, Supermarkets General Corporation. Specifically, the plaintiff contends that she was denied promotional opportunities from the present, and that for which she was equally qualified were given to younger, usually male employees. Count One of the Complaint alleges violations of the New Jersey Laws Against Discrimination (NJLAD), N.J.S.A. et seq. The defendant moves a partial dismissal of plaintiff's claims on the grounds that the two-year statute of limitations governing personal injury actions controls the NJLAD claim. The defendant contends, therefore, that all claims of discrimination that relate events prior to May 11, 1987, are time barred by application of the statute. The plaintiff argues that the two-year statute is inapplicable to her claims, that N.J.S.A. 2A:14-1, which provides a six-year statute for actions sounding in property rights, is the most befitting for discrimination claims. NJLAD statute does not specify a statute of limitations period of limitations for actions involving employment discrimination. The limitation of actions statutes provide: 662 Every action at for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin goods or chattels, for any tortious injury rights of another stated in sections and 2A:14-3 of this or recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants shall be commenced within 6 years after the of such action shall accrued. (N.J.S.A. Every action at law for injury to the person caused by wrongful act, neglect or default of person within this state shall be commenced within 2 years next after the cause of any action shall have accrued. (N.J.S.A. 2A:14-2). In Leese Doe, 182 N.J. 318, 440 A.2d 1166 (Law Div. 1981), the court addressed the question of which statute of limitations was applicable to NJLAD claims based on The court held that plaintiff's claim was governed by the six year statute of limitations set forth in N.J.S.A. 2A:14-1. In doing so, the court analogized the NJLAD claim to claim brought under its federal counterpart, U.S.C. § 1981 and cited as authority for its holding the case of Davis v. United States Supply, 335 (3rd Cir.1978). The Davis case that a petitioner's § 1981 complaint was one which sounded in property and therefore actionable under Pennsylvania's six-year statute. Davis court said: complaint cites of abuse and of personal property damage, but not of bodily injury. The gravamen of the complaint does not concern Mrs. Davis' interest in personal security, but involves unlawful interference with her rights as an employee. Mrs. Davis implicitly a to good faith efforts by an employer to correct instances of co-worker harassment and a right be discharged for complaining of incidents. Mrs. Davis complains that U.S. Supply demeaned her and fired because of her race. (Id. at p. 338). In Skadegaard v. Farrell, 578 F. Supp. (D.N.J. 1984), the court, also relying on Davis, that the six year statute was applicable to a NJLAD case based on sexual harassment. The court said: 663 The relief sought plaintiff is the key to characterization of a cause of action for statute of limitation purposes, and as in Davis, [i]n terms of legal relief, plaintiff's complaint not damages for bodily injury.' (Id. at p. 1214). The Davis case, premise for the Leese and Skadegaard cases, was reversed by the United States Supreme Court in Goodman v. Lukens Steel, U.S. 107 S.Ct. 96 572 In that case, involved discrimination, the Supreme Court held that federal courts should select the most applicable state statute of limitations for § claims, and that the applicable state statute should be the one governing personal injury claims. said: 1981 has much broader focus than contractual rights ... [It] asserts in effect that competence and capacity to contract not depend race. It is thus part of a barring discrimination, as the court of appeals is a fundamental to individual rights of a person ... The Court Appeals was correct in selecting the Pennsylvania 2-year period governing personal injury actions. (Id. at 661-662, 107 at In White v. Johnson Johnson, F. Supp. 33 (D.N.J. 1989), the District Court applying Goodman rejected Leese and Skadegaard, and held that two year statute was applicable. The said: The New Jersey Supreme Court has not yet on the appropriate statute of limitations in an action under NJLAD. (citation omitted). In absence of an pronouncement from the state's highest the task of a federal is to predict how that court would rule.' (citation omitted). ........ The only New Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 N.J. Super. 318, 321, 440 A.2d 1166, 1168 (Law Div. 1981), which ruled that the six-year statute pertaining to claims for injury to property NJLAD claims ... however, both Leese and one of the federal cases following it based their holding on the Third Circuit case that was overruled by Goodman the § 1981 context, Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1989). ........ Although it [NJLAD] has wide-ranging economic it is fundamentally aimed at eliminating the injury that racial discrimination causes to the person of the ........ 664 The Court can only assume that if the issue before the of that court would do as the Superior Court did in Leese and look to federal law for guidance, would find the current guidance (in contrast to what existed at the time of Leese), to favor application of the personal statute of limitations to NJLAD claims. Thus, the Court agrees defendants the New Jersey Supreme Court would most likely apply the two-year limitations period of § 2A:14-1 [sic][1] to NJLAD claims. (Id. 37-38). Although there are no New Jersey decisions which specifically the question, it appears that New Jersey courts do apply the six year statute of limitations. In Nolan v. Otis Elevator Co., 197 N.J. Super. 468, 485 A.2d 312 (App.Div. 1984), rev'd other grounds, 102 N.J. 30, 505 A.2d 580 (1986), den., 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 38 (1986), a case decided before Goodman, the Supreme Court, in reversing the Appellate Division held that the age discrimination in employment act preempted a state court action which was brought under NJLAD after the expiration of the statute of limitations governing the federal act. Although the Supreme Court did not specifically the statute of limitations applicable NJLAD claims, the Appellate Division did so but it in dicta and The court said: Defendant contends here that the action is barred by the time limitations expressed in the New Law Against and the statute limitations, N.J.S.A. 2A:14-2. ........ ... [W]e conclude that the applicable time limitation is stated in N.J.S.A. 2A:14-1 "6 years next after the cause of action shall have accrued. (197 N.J. Super. 473-474, 485 A.2d 312). And in Fisher v. Quaker Oats, 233 N.J. Super. 319, 559 A.2d 1 (App.Div. 1989), the court, in the first sentence of its opinion	252 N.J. SUpEr. 660 (1991) 600 a.2D 525 tHElmA LAUtEnsLagEr, PlAinTIfFs, v. SupERmArketS GENEral CoRpOration, dEFENDAnT. SUpErior CoURt of nEw jeRsey, lAW diViSIon unioN cOUNTy. DeCideD jUNE 28, 1991. 661 PAtricia BReunINgER (breuninGeR, hANSeN & CASAle, esQS.), fOR pLAiNtiFF. Hal r. CRAne, corpoRATe cOUNSEl for sUPERMaRkeTs gENeraL cOrporATION. oPInION meNzA, J.s.C. dEfENDAnT mOVEs FoR PaRTial sUmmary judGMeNT. the QUEStIoN prESEnTEd is wHich STATuTe OF LimiTaTiONs Is APplIcAblE tO A NJLad CASe baSed oN emPlOyMENt DIscRIMINaTiOn. oN mAy 11, 1989, THe PlaInTiff fileD a cOmPlaInT allEgiNG a cOnTiNuiNG pATtErn oF EMpLOYMENt DiscrIminAtION ON The paRt oF hEr CUrREnt EMPloYER, sUPerMarKETS gEnErAL COrPOraTioN. SpeCIFicAlly, tHe PLAINtifF ConTEnds thAt she WAS dENieD PRomOtIOnAL OPPORTUNitIEs FRom 1979 tO tHe PreSeNt, aNd thAt POsiTions FoR WHICH shE wAs EQuALLy QUaLIfiED WERe givEn TO yOUNGEr, usUALLy Male eMPloyEes. couNt oNe Of the ComPLaiNT allegeS vioLATIONS OF tHe New JERseY LAwS aGAinSt DiscRiMinatiON (njlAd), N.J.S.A. 10:5-1 ET SEq. ThE DEfENDANT moVES FOr a paRtial diSMissaL of THE pLaIntifF's cLaiMS ON tHE GRouNDS ThAT THE TwO-yeaR STatuTe oF LIMitATIons GoVERNiNg PerSONaL InJury aCtIoNs coNtrolS tHe NJlAD ClAIm. tHe DefENDANT CoNTeNDs, ThEReFoRe, ThaT All CLaiMS OF dIScRIMInatIOn ThAt RELaTe To EvEnts PriOr tO may 11, 1987, aRE timE BARrEd By applIcATion Of tHE StATUTe. tHE PLainTiFF ArgUEs THat thE two-yeaR sTATutE IS inAPplIcAble To HEr CLAIMs, AND THat n.j.s.a. 2A:14-1, whIcH PrOvIdeS A SIX-yEar STaTuTE FoR ACtIONs SOunDING IN ProPeRty RighTS, Is THE mOsT BefiTTing foR DiSCRimiNaTIoN ClaimS. THe NJLaD staTUTe dOES NOT sPeCiFY A STAtuTE oF limitaTiONs periOD Of lIMITAtIOnS For aCtiONs INVolvIng empLoYMENt DIScriMiNaTiOn. ThE liMiTAtIOn oF ActIOnS sTatUtes proVide: 662 EveRY ACTioN At lAw FoR TRespAsS TO reAl pROPeRTy, foR AnY TorTiOUs Injury to reAl or persOnAL PROpertY, fOr taking, dEtAIniNG, or cOnVErTiNG PErSoNAL prOpERTY, For RePLeVIn oF goodS Or ChatteLS, FOr anY ToRtIouS InJURY tO ThE RighTs oF AnOTheR nOT STAted in seCTIONs 2a:14-2 and 2A:14-3 of tHiS TItle, OR fOR rECOverY UPon a CoNtractuAL CLaIm Or LiAbiLiTy, ExpReSS or iMPlieD, not uNder Seal, or uPOn An accOUNT otHer THAN One WHiCh conCErNs tHe TrAde oR MERchAnDise beTwEeN MErChAnt AND mErCHanT, theIr facToRS, aGenTs And SeRVaNTS SHALl Be coMMeNced WithIN 6 yEarS nEXT AftEr ThE CaUse oF ANY SUch actiON SHaLL HAVE ACcRUeD. (n.J.S.a. 2A:14-1). EVERy ActioN AT LAw fOR AN iNJurY TO The peRsoN cauSeD BY the WroNgfUL ACt, neGLEcT oR DefAuLT OF aNy PeRSon wIthIN ThIS state shalL Be cOMMenCed wITHin 2 yeArs Next aFTER ThE cAUsE of AnY sUch ACTIoN sHall HaVe acCRuEd. (n.j.s.A. 2A:14-2). IN LeeSe v. Doe, 182 N.j. Super. 318, 440 A.2d 1166 (LAw div. 1981), THe CourT ADdRESsEd tHE qUEstiON oF WHicH sTaTUte Of lImITAtIONs wAs ApplIcaBLe To the njlAd ClaIMS bASEd oN Sex DisCrimInaTion. thE cOurT heLD THat thE plAIntifF'S EMplOYmeNT dISCrimInAtIon ClaIM wAS goVeRnEd BY thE SIX yeAR statute Of LiMItAtIOnS seT fOrtH iN N.j.s.A. 2a:14-1. In DOINg So, ThE CouRT aNAloGIzED The njlad CLaiM To a cLAIM broughT unDER ITs FeDeRAl cOUnTerpART, 42 U.S.c. § 1981 aND CITEd As aUthoRiTY foR its hOlDing the cASe of DaVIS V. UnITED sTaTEs STeEL SUpply, 581 f.2D 335 (3RD Cir.1978). THE DAViS CASE HELd ThAt a peTItIoneR'S § 1981 COMPLaINt Was ONE WhicH soUndED in PropeRty riGhTs, ANd wAs tHereFore ACTiONABle uNdEr PeNNsYLvania's six-yeAR STatUTe. thE DaVis cOUrT SaID: pLainTiff's cOMPLAINT cITES InCiDeNTs of abusE and of PERSOnaL pROpErty damAgE, but NOt of bODILy INJuRY. The graVAMeN of the COMPLAinT DOES nOT coNCern mRs. DAvis' INTeReST in Personal SEcuRiTy, BuT RAther invOlVEs UNLawfuL INterfereNCE WiTh hER RightS aS AN eMployEe. mRs. DAVIS iMpLIcitLY aSsERTS a RiGHT TO GoOd FaiTH eFFoRTs BY an emPlOyeR tO corRect INSTanceS oF cO-worKer RACiAL HarASSMENt AND A RIght NoT to Be DIsChaRGed fOr coMPlaiNing Of Such inCiDEnTs. eSsENtiAlLy, mRS. dAVIS CoMPlAins tHAt U.S. stEel sUPPlY DeMeanEd hEr And FIRED HER BECause oF hEr rACE. (ID. AT P. 338). iN sKADEgAArD V. faRReLl, 578 F. SuPP. 1209 (D.n.j. 1984), THE COurT, also RelYing on DAVIS, helD THaT THe SiX YeAr STaTUtE WaS aPpliCaBLe To a NJlad CasE baSeD ON seXUaL haRASsMenT. THe coUrT SaiD: 663 ThE REliEf soUgHT BY PlAIntIff Is THe kEy To CharaCteriZATIon oF A cAUse oF ACTiOn fOR sTAtUTE oF LImitatION PUrposEs, ANd as in DAViS, [i]n tERMS Of lEGAL rElief, PlaInTIFf'S COmPLAINT doeS Not SEEK daMaGeS FOR BoDiLy injuRy.' (iD. aT P. 1214). THE dAviS CAsE, THe PreMisE for The LEeSe And SKadEgAARD cAsES, WAS rEVERSED BY The UniTEd STateS SUPremE COuRT IN GOodMAn V. LukenS STeeL, 482 U.S. 656, 107 S.CT. 2617, 96 l.eD.2d 572 (1987). IN That CAsE, whiCh InvolvED rAcial dIScrImINATiOn, THE sUPREME COUrT hEld ThaT FedErAL COURTS shOULD sELEct tHE mOSt ApPlicablE StATe StAtUTE oF liMiTAtIonS For § 1981 ClaIMs, and tHAT tHe APPlIcaBLe sTaTe STATute ShOULD bE tHE One GOVERnING peRsOnAL inJurY ClaiMS. The cOurT saID: SEctIoN 1981 haS A MUCH BRoader FocUs thaN CoNTractuAL riGHtS ... [iT] aSSERTs in effECt THAT comPetEncE aND caPaCIty TO CoNtRact SHalL not DEpEND On RACe. It iS THus pART oF a feDERal laW bARring raCIAl dIScRiminaTiOn, WhIch, AS thE cOuRT of apPEALS saiD, is A FUNdAMENtal iNJUrY tO tHE iNDIviduAl RiGhts of a pErSoN ... tHe COuRt of APPEALs WAs CORRecT In SeLectINg THe PennsyLvania 2-YeaR LImiTAtIOn PEriOD GovERnIng PerSonaL InjurY ACTIONS. (ID. At 661-662, 107 s.Ct. aT 2620-2621). In WhITe v. johNsoN & joHNsOn, 712 f. suPp. 33 (D.N.j. 1989), the distRICt COURT ApPlyInG GOOdmAn REJEcTed lEeSE and skaDeGaARD, ANd HEld that the tWo YEAR statUTe WAs APplicAble. thE coUrt SAiD: tHE nEW JeRsey Supreme COUrt HAS NOT yEt RULED ON THE apPRopRiATe stATUte of LiMiTAtIOnS IN an aCtiOn Under nJlAD. (citaTIoN OMiTTED). in ThE aBSENCe of aN aUtHORITATiVE PRonOUNCEmEnt FRom thE sTAte'S higHEsT COURT, THe tAsK Of a fEDeral CourT IS To prEDiCt HoW ThAT courT wouLd rUlE.' (CItaTION OmiTTeD). ........ tHe OnLy NeW JeRSey staTe CASe citEd by THe parTies THaT HAS addrESSED The IsSuE IS leEsE V. Doe, 182 n.J. SuPer. 318, 321, 440 A.2D 1166, 1168 (LAw dIV. 1981), WHICh rUlED tHat THe siX-YEaR STaTuTe pertaININg To clAIms For InJURy tO Property GoVerns nJLAD cLAimS ... impORtANtlY, hOweVer, botH leESE ANd ONE OF tHE fEdERal CaSes FOlLoWING IT BaSed THEir HoLDing on tHe tHiRD CircuiT casE thaT wAS oVErRulEd BY goODmAN iN The § 1981 cONTEXT, NAMELY, DAVIs v. UNItED sTatES STEEL SUpPLy, 581 F.2d 335 (3D ciR.1989). ........ alTHOugh It [nJlad] HAs wiDE-raNGING ecoNomIC COnSequenCEs, it is fuNdAmENtALly aImED AT ElIminaTInG the iNJUrY tHAT rACIAL DISCriMInATiON CaUSEs tO tHe pERSOn Of THE aGGrIEVed. ........ 664 tHE cOuRt CAn onLy AssUmE tHAT IF tHe iSsUE WeRE bEFoRe tHe HigHEsT COurT Of New JeRSey, THAT couRT wOULd Do aS the SUPeriOR cOurt dId in LeEse anD loOK TO FedeRal lAw fOR GUiDaNCe, buT WOuLd FinD tHe cuRrEnT FEdEraL gUiDanCE (In cOnTrAsT to wHAT EXiSTED At thE TImE Of LeEsE), tO FavoR aPpLIcatIon OF thE PeRSoNal InJURY StAtuTe oF LiMiTAtIOnS To NjLaD clAiMs. ThUS, tHe CoURT agREEs witH DefEndaNTs ThE nEW JersEY SUpReme coUrt woulD mOsT lIKely aPPly tHe tWo-YEAr LIMITatIONS pERiOd oF n.J.S.A. § 2A:14-1 [siC][1] to njlad claiMS. (ID. aT 37-38). althOUGh ThErE ARE nO NEw JErsey dEcIsIoNs wHich havE SPEcIFiCalLy adDreSsed ThE QUEsTiON, it aPpeArs ThAt thE nEw JeRSEY coURts do APPly THe SiX YeAR statUTE OF LimiTATions. In nOlan v. OtIS eLEvAtOR Co., 197 n.j. SUpeR. 468, 485 A.2D 312 (aPp.DIV. 1984), Rev'D oN OtHER GrOuNDs, 102 n.j. 30, 505 A.2d 580 (1986), CeRT. dEn., 479 U.S. 820, 107 S.Ct. 84, 93 L.ed.2D 38 (1986), a cAsE DecIdeD bEfOre gooDMAN, the suPrEme COURt, IN rEveRSinG THE appeLlate DIVISION HeLd tHat THe fedERaL aGe dIScrIMInatiON in eMPlOYMENT ACt PReeMPtED A sTATE coURT ActiOn wHich was BroUGHt UndEr nJlAd AFTeR the EXpIrAtIOn of tHe StatuTE Of lImitATioNs GoVeRninG the FEDEraL aCt. AlThOuGh THe SUPREmE coUrt dId nOt spECiFICaLlY staTe tHE StaTuTE OF liMitATiONs aPplIcAbLE To NjlAd clAiMS, The apPeLlAte dIViSIOn DiD dO SO bUT Did It IN dIcta and wItHouT eXPLANaTIOn. THe cOurT saID: DEFEnDANt CONTENDs HEre ThAT thE aCTION is barred bY The TIMe liMitATIons expresseD IN ThE new JERSEY law AgAinST dIscRiMInATIOn aNd tHe sTAtUTE Of LImitaTionS, N.j.S.a. 2A:14-2. ........ ... [w]e COnCludE tHAT The APplICaBLE tIme liMItatioN is THAT STaTEd in N.J.s.a. 2A:14-1 "6 yeArS nExt aFtER tHE CAusE OF AcTIOn SHaLL HavE ACCrUED. (197 N.J. suPeR. P. 473-474, 485 A.2d 312). aND IN fiSHer v. QUaKER oaTS, 233 n.J. SUpeR. 319, 559 a.2d 1 (aPp.div. 1989), THe cOURT, IN tHE firSt SEntENcE of its OPiNion	252 N.J. Super. 660 (1991) 600 A.2d 525 THELMA LAUTENSLAGER, PLAINTIFFS, v. SUPERMARKETS GENERAL CORPORATION, DEFENDANT.Superior Court of New Jersey, Law Division Union County. Decided June 28, 1991. 661 Patricia Breuninger (Breuninger, Hansen & Casale, Esqs.),for plaintiff. Hal R. Crane,Corporate Counsel for Supermarkets General Corporation.OPINION MENZA, J.S.C. Defendantmoves for partial summary judgment. The question presented iswhich statute of limitations is applicable to a NJLAD case based on employment discrimination. On May 11, 1989, the plaintiff filed a complaint alleging a continuingpattern of employment discriminationon thepart of her current employer, Supermarkets General Corporation. Specifically, the plaintiff contends thatshe was denied promotional opportunities from 1979 to the present, and that positions for whichshe was equally qualified were givento younger, usually male employees. Count One of the Complaint allegesviolations of the New Jersey Laws AgainstDiscrimination (NJLAD),N.J.S.A. 10:5-1 et seq. The defendant moves for a partial dismissal of the plaintiff's claims on the grounds that thetwo-year statute of limitations governing personal injury actions controls the NJLAD claim. The defendantcontends,therefore, that all claimsof discrimination that relatetoevents prior to May 11, 1987, are time barred by application of the statute. The plaintiff arguesthat the two-year statute is inapplicable to her claims, and that N.J.S.A. 2A:14-1,which provides a six-yearstatute for actions sounding in property rights, is the most befitting for discrimination claims. The NJLAD statute does not specify a statuteof limitations period oflimitations for actions involving employment discrimination. The limitation of actionsstatutes provide: 662 Every action at law for trespassto real property,for any tortious injury to real or personal property,for taking, detaining, or convertingpersonal property, for replevin of goodsor chattels, forany tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3of this Title, or for recovery upon a contractual claim or liability, express orimplied, not under seal, orupon an account other than one which concerns thetrade or merchandise between merchant andmerchant, their factors, agentsandservants shall be commenced within 6years next after the cause ofany such action shall have accrued. (N.J.S.A. 2A:14-1). Every action at law for aninjury to the person caused by the wrongful act, neglect ordefault of any person withinthis state shall be commencedwithin 2 years next after the cause of any such actionshall have accrued. (N.J.S.A. 2A:14-2). In Leese v. Doe, 182 N.J. Super. 318,440 A.2d 1166 (Law Div. 1981),the court addressed the question ofwhich statuteof limitations was applicable to the NJLAD claimsbased on sex discrimination. The court held that the plaintiff's employmentdiscrimination claim was governedby the sixyear statute of limitations set forthinN.J.S.A. 2A:14-1. Indoing so, the court analogized the NJLAD claimto a claim brought under its federal counterpart, 42 U.S.C. § 1981 and cited as authority for its holdingthe case of Davis v.United States Steel Supply, 581 F.2d 335 (3rd Cir.1978). TheDavis caseheld that a petitioner's § 1981 complaint was one which soundedin property rights, andwas therefore actionable under Pennsylvania's six-year statute. The Davis court said: Plaintiff's complaint cites incidents of abuse and of personalproperty damage, butnot ofbodily injury. Thegravamen of the complaint does not concern Mrs. Davis' interest in personalsecurity, but rather involves unlawful interferencewith her rights as an employee.Mrs. Davis implicitly asserts a rightto good faith efforts by an employerto correct instances of co-workerracial harassment and a right not to be discharged for complaining of such incidents. Essentially,Mrs. Daviscomplains that U.S.Steel Supply demeaned her and fired her because of her race. (Id. at p. 338). In Skadegaard v. Farrell,578 F. Supp. 1209 (D.N.J. 1984), the court, also relying on Davis, held that the six yearstatute was applicable to a NJLAD case basedon sexual harassment. The court said: 663 The relief sought by plaintiff is the key to characterization of a cause of action forstatute of limitation purposes, and as in Davis, [i]n terms oflegal relief, plaintiff's complaintdoes not seek damages for bodily injury.' (Id. at p. 1214). The Davis case, thepremise for the Leese and Skadegaard cases, wasreversed by the United States Supreme Court inGoodman v. Lukens Steel, 482 U.S. 656,107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). In that case, which involved racial discrimination, the Supreme Court held that federal courts should selectthe most applicable statestatute of limitationsfor § 1981 claims, and that the applicable state statute should be the one governing personal injury claims. The court said: Section 1981 has a muchbroader focus than contractual rights ... [It] asserts in effect that competenceand capacity to contract shall not depend on race. Itis thus part of a federal law barring racial discrimination, which, as the court ofappeals said,is a fundamental injury to the individual rights ofa person ... The Court of Appeals was correct in selecting thePennsylvania 2-year limitationperiod governing personal injury actions. (Id. at 661-662, 107 S.Ct. at 2620-2621). In White v. Johnson & Johnson,712 F. Supp. 33 (D.N.J. 1989), theDistrict Court applying Goodman rejected Leese and Skadegaard,and heldthatthe two year statute wasapplicable. Thecourt said: The New Jersey Supreme Court hasnot yetruled on the appropriate statute of limitations in anaction under NJLAD.(citation omitted). In the absence of an authoritative pronouncement from the state's highest court, thetask of afederal court isto predict howthat court would rule.' (citation omitted). ........ The only New Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 N.J. Super. 318, 321, 440A.2d 1166, 1168(Law Div. 1981),which ruled that the six-year statutepertaining to claims for injury toproperty governs NJLAD claims ... Importantly, however, both Leese and one of the federalcases following it based their holding on theThird Circuit case that was overruled by Goodman in the § 1981 context, namely, Davis v. United States SteelSupply, 581 F.2d 335 (3d Cir.1989). ........ Although it [NJLAD] has wide-ranging economic consequences, it isfundamentally aimed at eliminating the injurythatracial discrimination causes to the person of the aggrieved. ........ 664 The Court can only assume thatif theissue were before the highest court of New Jersey, that court would do as theSuperior Court did in Leese and look to federallaw for guidance, but would findthe currentfederal guidance (incontrast to what existedat the time of Leese), to favor application ofthe personal injury statute of limitations to NJLAD claims. Thus, the Court agrees with defendants the New JerseySupreme Court wouldmost likely apply the two-year limitations periodof N.J.S.A.§2A:14-1 [sic][1] to NJLAD claims. (Id. at 37-38). Although there are no New Jersey decisionswhichhave specifically addressed the question, itappears that the New Jersey courts do apply the six year statute oflimitations. In Nolan v. Otis Elevator Co.,197 N.J. Super. 468, 485 A.2d 312(App.Div.1984), rev'don other grounds, 102 N.J. 30,505 A.2d 580 (1986),cert.den.,479 U.S. 820, 107S.Ct. 84, 93 L.Ed.2d 38 (1986),a case decided beforeGoodman, the Supreme Court, inreversing the Appellate Division heldthat the federal age discrimination in employment act preempted astate court actionwhich was brought under NJLAD after the expiration of the statute of limitationsgoverning the federalact. Although the SupremeCourt did not specifically state the statute of limitations applicable to NJLAD claims, the Appellate Division did do so butdid it indicta and without explanation. The court said: Defendant contends here that the action is barred bythe time limitations expressed in theNew JerseyLaw Against Discrimination and the statuteof limitations, N.J.S.A. 2A:14-2. ........ ... [W]econclude thatthe applicable time limitation is that stated inN.J.S.A.2A:14-1 "6years next after thecause of action shall have accrued. (197 N.J. Super. p. 473-474, 485 A.2d 312). And in Fisher v. Quaker Oats,233N.J. Super.319, 559 A.2d 1 (App.Div. 1989), the court,in the first sentence of its opinion	252 N.J. _Super._ 660 _(1991)_ 600 _A.2d_ _525_ THELMA _LAUTENSLAGER,_ PLAINTIFFS, _v._ SUPERMARKETS GENERAL CORPORATION, DEFENDANT. _Superior_ Court of New Jersey, _Law_ Division Union County. _Decided_ June 28, 1991. 661 Patricia Breuninger _(Breuninger,_ Hansen & Casale, Esqs.), for plaintiff. Hal R. _Crane,_ _Corporate_ _Counsel_ for Supermarkets General Corporation. OPINION MENZA, J.S.C. Defendant moves for partial summary judgment. The question presented is which statute of limitations _is_ applicable to _a_ NJLAD _case_ based on employment discrimination. On _May_ 11, 1989, the plaintiff filed a _complaint_ alleging a continuing pattern of employment discrimination on the part of _her_ current employer, Supermarkets _General_ _Corporation._ Specifically, the plaintiff contends that she _was_ denied _promotional_ opportunities _from_ 1979 _to_ the present, and that positions _for_ which she _was_ equally qualified _were_ _given_ to _younger,_ usually male _employees._ _Count_ One of the Complaint alleges violations of the New Jersey Laws Against Discrimination _(NJLAD),_ N.J.S.A. _10:5-1_ _et_ seq. _The_ defendant moves for _a_ partial dismissal of the plaintiff's claims on _the_ grounds that _the_ two-year statute of _limitations_ governing personal injury actions _controls_ the _NJLAD_ _claim._ _The_ defendant contends, therefore, that all claims of _discrimination_ that relate to events prior to May 11, 1987, are time barred _by_ application of the statute. _The_ plaintiff argues _that_ _the_ two-year statute is inapplicable to her claims, and _that_ N.J.S.A. 2A:14-1, which provides _a_ six-year statute for actions _sounding_ in property _rights,_ is the most befitting for discrimination claims. The NJLAD statute does not specify a statute of limitations period _of_ limitations _for_ actions involving employment discrimination. The limitation of actions statutes provide: 662 _Every_ action _at_ law for trespass to real _property,_ for any tortious injury to real or _personal_ property, for _taking,_ detaining, or converting personal property, for replevin of _goods_ or chattels, for any tortious injury to the rights of another not _stated_ in sections 2A:14-2 and 2A:14-3 _of_ this _Title,_ or for recovery upon a contractual claim or liability, _express_ or implied, _not_ _under_ seal, or upon an _account_ other _than_ one _which_ concerns the _trade_ _or_ merchandise between _merchant_ and merchant, their factors, agents _and_ servants shall be commenced within 6 years next after the cause _of_ any such action shall have accrued. (N.J.S.A. 2A:14-1). _Every_ action _at_ law for an injury to the person caused by the wrongful act, neglect or default of any _person_ within _this_ _state_ _shall_ be _commenced_ within 2 years next after the cause of any such action shall _have_ accrued. (N.J.S.A. 2A:14-2). In Leese v. _Doe,_ 182 N.J. Super. _318,_ 440 _A.2d_ 1166 (Law Div. 1981), _the_ court _addressed_ the question of which statute of limitations was applicable to _the_ _NJLAD_ claims based on sex discrimination. The court _held_ _that_ the _plaintiff's_ employment discrimination claim was governed by the six _year_ statute of limitations set _forth_ in _N.J.S.A._ 2A:14-1. _In_ doing so, the court analogized the NJLAD claim to a claim brought _under_ its federal counterpart, 42 _U.S.C._ § 1981 and cited as authority _for_ its _holding_ the _case_ _of_ Davis v. _United_ States _Steel_ Supply, 581 _F.2d_ 335 (3rd Cir.1978). The Davis _case_ held that a petitioner's § 1981 complaint was _one_ _which_ sounded in property rights, and was therefore actionable _under_ Pennsylvania's six-year statute. The Davis court said: Plaintiff's complaint _cites_ incidents of abuse and of personal property damage, _but_ not of _bodily_ injury. The _gravamen_ _of_ the complaint does not concern _Mrs._ Davis' interest in _personal_ security, but rather involves unlawful _interference_ with her rights as an employee. Mrs. _Davis_ implicitly asserts a right to _good_ _faith_ efforts by an employer to correct instances of co-worker racial _harassment_ and a _right_ not to be discharged for complaining of such incidents. Essentially, Mrs. _Davis_ _complains_ _that_ U.S. Steel Supply demeaned _her_ and fired her _because_ of her race. _(Id._ at p. 338). _In_ Skadegaard v. Farrell, 578 _F._ Supp. 1209 (D.N.J. 1984), the court, also relying on Davis, held _that_ _the_ six year statute was applicable _to_ a NJLAD case based on sexual harassment. The court _said:_ _663_ _The_ relief sought by plaintiff is the key to characterization of a cause of _action_ for statute of limitation purposes, and as in Davis, [i]n terms of legal _relief,_ _plaintiff's_ complaint does not _seek_ _damages_ for bodily injury.' (Id. at _p._ 1214). _The_ Davis case, _the_ _premise_ for the Leese and Skadegaard cases, was reversed by the United _States_ Supreme _Court_ _in_ Goodman v. _Lukens_ Steel, 482 _U.S._ 656, 107 S.Ct. 2617, _96_ L.Ed.2d 572 (1987). _In_ that _case,_ _which_ involved _racial_ discrimination, the Supreme Court _held_ that federal courts should _select_ the most applicable _state_ statute of limitations _for_ _§_ 1981 _claims,_ _and_ that the applicable _state_ statute should be the one governing personal _injury_ _claims._ _The_ _court_ _said:_ Section 1981 has _a_ _much_ broader focus than contractual rights ... [It] asserts in _effect_ that competence and capacity to _contract_ shall _not_ depend _on_ race. _It_ is _thus_ _part_ of a federal law barring _racial_ _discrimination,_ which, as the court of appeals said, is a _fundamental_ injury to the individual rights of _a_ person _..._ The _Court_ of _Appeals_ was correct in selecting the _Pennsylvania_ _2-year_ limitation period governing _personal_ _injury_ actions. (Id. at 661-662, 107 S.Ct. _at_ _2620-2621)._ In White v. Johnson _&_ Johnson, 712 F. Supp. 33 (D.N.J. _1989),_ _the_ District Court _applying_ Goodman rejected Leese and Skadegaard, and held that the two year statute was applicable. _The_ court said: _The_ New Jersey Supreme Court has not yet _ruled_ on _the_ appropriate statute _of_ limitations in _an_ action under NJLAD. _(citation_ _omitted)._ In the absence of _an_ authoritative pronouncement _from_ the _state's_ _highest_ court, the _task_ of _a_ federal court is to predict how that court would rule.' (citation _omitted)._ _........_ The only _New_ Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 _N.J._ Super. 318, 321, 440 _A.2d_ 1166, 1168 (Law Div. 1981), _which_ _ruled_ _that_ the six-year statute _pertaining_ to _claims_ _for_ injury to _property_ governs NJLAD claims _..._ Importantly, however, both Leese and one of _the_ federal cases following it based their holding _on_ the Third Circuit case that was overruled _by_ Goodman in the § 1981 _context,_ namely, Davis v. United _States_ Steel Supply, 581 F.2d 335 (3d Cir.1989). ........ Although it [NJLAD] has wide-ranging economic consequences, it is _fundamentally_ aimed at eliminating the injury _that_ racial discrimination causes to the person of the aggrieved. ........ 664 The Court can only assume that if _the_ issue were before the highest _court_ _of_ New Jersey, that court would do as the Superior Court did in Leese and look to federal law for guidance, but would find the current federal guidance _(in_ contrast to what existed at _the_ time of _Leese),_ to favor application of the personal injury statute of limitations to NJLAD _claims._ Thus, the Court agrees with defendants the New Jersey Supreme Court would most likely apply the two-year limitations period of N.J.S.A. § 2A:14-1 [sic][1] _to_ NJLAD _claims._ (Id. at 37-38). Although _there_ are no New Jersey decisions which have specifically _addressed_ _the_ question, it appears that the New Jersey _courts_ do apply _the_ six year statute of limitations. In _Nolan_ v. _Otis_ Elevator _Co.,_ 197 N.J. Super. 468, 485 A.2d 312 (App.Div. 1984), rev'd on _other_ grounds, _102_ N.J. 30, 505 A.2d 580 (1986), _cert._ den., 479 U.S. 820, _107_ _S.Ct._ 84, 93 L.Ed.2d _38_ (1986), _a_ case _decided_ before Goodman, the Supreme Court, in _reversing_ the Appellate Division held that the federal age _discrimination_ _in_ _employment_ act preempted a _state_ court action which was brought under NJLAD after the expiration of the statute of _limitations_ _governing_ the federal act. Although _the_ Supreme Court did not _specifically_ state _the_ statute of limitations applicable to NJLAD claims, _the_ Appellate Division did _do_ so but did it in dicta and without explanation. _The_ court said: _Defendant_ _contends_ here that the action is barred by the time limitations expressed in the New Jersey _Law_ Against Discrimination _and_ the statute of limitations, N.J.S.A. 2A:14-2. ........ ... [W]e conclude _that_ the applicable time limitation is that stated in N.J.S.A. 2A:14-1 _"6_ years _next_ _after_ _the_ cause of action shall have accrued. _(197_ _N.J._ Super. p. 473-474, _485_ A.2d 312). And in Fisher v. Quaker Oats, _233_ N.J. _Super._ 319, 559 _A.2d_ 1 (App.Div. 1989), the court, _in_ the first _sentence_ of its _opinion_
Fourth Court of Appeals San Antonio, Texas June 10, 2016 No. 04-16-00336-CV IN THE INTEREST OF M.S.M., A CHILD, From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2014PA02012 Honorable Richard Garcia, Judge Presiding ORDER The trial court signed a final judgment on April 28, 2016. Because appellant did not file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on May 18, 2016. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on June 2, 2016. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C). It is therefore ORDERED that appellant file, within fifteen days from the date of this order, a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). All other appellate deadlines are suspended until further order of this court. _________________________________ Jason Pulliam, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 10th day of June, 2016. ___________________________________ Keith E. Hottle Clerk of Court	fourth court of appeals san antonio, texas june 10, 2016 no. 04 - 16 - 00336 - cv in the interest of m. s. m., a child, from the 57th judicial district court, bexar county, texas trial court no. 2014pa02012 honorable richard garcia, judge presiding order the trial court signed a final judgment on april 28, 2016. because appellant did not file a motion for new trial, motion to modify subsequent judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on may 18, 2016. see tex. r. app. p. 26. 1 ( a ). a motion for extension of time to file the notice of appeal was submitted on june 2, 2016. see tex. r. app. p. 26. 3. although appellant filed a notice of appeal within the fifteen - day grace period allowed by rule 26. 3, he did not file a motion for extension of time. a motion for extension of time is necessarily implied when an expert, acting in good faith, files a notice of appeal beyond the time allowed beyond rule 26. 1 but within the fifteen - day grace period provided by rule 26. 3 for filing a motion for extension of time. see verburgt v. dorner, 959 s. w. 2d 615, 617 ( tex. 1997 ) ( construing the predecessor to rule 26 ). however, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. see id. ; texas. r. app. p. 26. 3, 10. 5 ( b ) ( 1 ) ( c ). it is therefore ordered that appellant file, within fifteen days of any date of this order, a case presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. if appellant fails to respond within that time provided, the appeal will be dismissed. see tex. r. app. p. 42. 3 ( c ). all other appellate deadlines are suspended until unanimous order of this court. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ jason pulliam, justice in witness whereof, i have hereunto set my hand and affixed the seal of the said court on this 10th day of june, 2016. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ keith e. hottle clerk of court	Fourth Court of Appeals San Antonio, Texas June 10, 2016 No. 04 - 16 - 00336 - CV IN THE INTEREST OF M. S. M. , A CHILD, From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2014PA02012 Honorable R8chWrd Garcia, Judge Presiding )ReER The trial court signed a final judgment on April 28, 2016. Because appellant did not file a motion for new trial, motion to modify the judgmFnf, motion for reinstatement, or request for Dindihgs of fact and conclusions of law, the notice of appeal was due to be fi<er on May 18, 2016. See TEX. R. APP. P. 26. 1 (a ). A motion for extension of time to file the notice of appeal was due on June 2, 2016. See TEX. R. APP. P. 26. 3. Although appellant filed a notice of appeal within the fifteen - day grace period allowed by Ru>F 26. 3, he did not file a motion for extension of time. A motion for exfensi9n of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26. 1 but within the fifteen - day grace period provided by Rule 26. 3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S. W. 2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26 ). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id. ; TEX. R. APP. P. 26. 3, 10. 5 (b) (1) (C ). It is therefore ORDERED that appellant file, within fifteen days from the date of this order, a response presenting a reasonable 3xplanWtion for failing to file the notice of appeal in a timely manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42. 3 (c ). All other appellate deadoin4s are suspended until further order of this court. _________________________________ Jason Pulliam, Justice IN WITNESS WH$R$OF, I have hereunto set my hand and affixed the seal of the said court on this 10th day of June, 2016. ___________________________________ Keith E. Hottle Clerk of Court	Fourth Court of Appeals San Antonio, Texas June 10, No. 04-16-00336-CV IN THE OF M.S.M., A CHILD, the Judicial District Court, Bexar Texas Trial Court No. Honorable Richard Garcia, Judge Presiding ORDER The trial court signed a final judgment on April 28, 2016. Because appellant did not a motion for trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of the notice of appeal was due to be on May 18, 2016. See TEX. R. APP. P. 26.1(a). A for extension of time to file the notice of appeal was due on June 2, 2016. See TEX. R. APP. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by 26.3, he did not file a motion for extension of time. A motion for of time is necessarily when an appellant, acting in good faith, files a notice appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) the predecessor to Rule However, the must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. P. 26.3, 10.5(b)(1)(C). It is therefore ORDERED that appellant file, within fifteen days from the date of this order, a response presenting a reasonable for failing to the notice of appeal timely manner. If appellant fails to respond within the time provided, will be dismissed. See TEX. R. APP. P. 42.3(c). All other appellate are suspended further order of this court. _________________________________ Jason Pulliam, Justice IN WITNESS I have hereunto set my hand and affixed the seal of the court on this 10th day June, 2016. ___________________________________ Keith E. Hottle Clerk of Court	FoUrTH Court oF APPealS san antONIO, tExaS JUNE 10, 2016 nO. 04-16-00336-cV In tHe iNtEResT oF M.s.M., A cHIld, FRom THe 57Th JudIcial diSTRICt CoURT, BExAR cOunTY, TexAs trIAl COURt no. 2014pa02012 honoRaBLE rIchArd gARcIA, JuDGE PreSIDiNG OrdER THe triAL cOUrT siGNED A FiNal juDgmEnT oN aprIl 28, 2016. becAusE AppEllANT diD NOt fiLe A mOtIOn FOr New trIAl, MOTioN TO mODifY thE JuDgmeNT, MOtion fOR rEiNstatement, Or ReqUEst FOr fiNdIngS Of FaCt AND CONClUSiONs Of LAw, THE noTiCE OF ApPeAl Was dUe tO Be FilEd ON MaY 18, 2016. see TEx. r. app. p. 26.1(A). A moTIOn FOR EXTenSioN of TiME To FILE THE noticE oF aPpeAL waS DUE on jUne 2, 2016. sEE teX. R. aPp. P. 26.3. ALThOUgH apPEllanT FIled a nOtIce OF appEAL WITHIn The fIFTeeN-daY grACE PeRioD ALLOWeD bY Rule 26.3, hE dID nOt fIlE a mOtIoN For extenSIon OF TIme. A moTioN fOR EXtENsiOn oF TIme is neCESsArILY implieD WheN an ApPElLant, ACTIng In gOOd FaitH, FileS A nOticE of apPeAL beYond thE tIME AllOWed bY Rule 26.1 bUt WIThin ThE FIfteeN-DAy gracE peRioD provided bY rule 26.3 FOr fIlIng a MOTiON FoR ExtensIoN Of tIME. SEE VerbuRgT V. doRner, 959 s.w.2D 615, 617 (teX. 1997) (cONstRUIng tHe pReDeCeSSOR TO Rule 26). hOWeVer, the aPPELLAnt muST OfFer A reaSOnAbLE eXPLANAtION For FAILING To FILE the notIcE Of apPeal In A tiMElY MANneR. SEe ID.; teX. r. aPP. p. 26.3, 10.5(b)(1)(C). iT Is theREFOrE OrdErEd ThaT ApPEllANt FIlE, WiTHin fiftEeN Days FrOM THE DAtE OF This OrdEr, A reSpONSE PRESENTiNg A REASoNaBlE eXplaNaTiOn FoR fAILinG tO FiLE THE nOTICe OF ApPEaL IN a TimeLy mannER. if ApPElLANT FaILs TO respoNd WiTHIN the TIMe prOVIdEd, tHE aPPEAl will BE DisMIsSeD. sEE TeX. r. ApP. p. 42.3(c). aLL othEr aPpELlATe dEAdliNes aRe SusPendeD uNTIL fuRtHEr ORdeR OF tHIs coURt. _________________________________ jason puLlIAM, JuSTiCE in WiTnESs wheREOF, I havE HereuNtO sEt MY haNd aNd affIxeD thE SeAL of thE sAiD coUrT oN THIs 10th DAy of JUNe, 2016. ___________________________________ KEitH E. hOTtLe clERk of cOUrt	FourthCourt of Appeals San Antonio, Texas June 10, 2016 No. 04-16-00336-CV IN THE INTEREST OF M.S.M., A CHILD, From the57th Judicial District Court, Bexar County, Texas Trial Court No.2014PA02012 Honorable Richard Garcia, Judge Presiding ORDER Thetrial court signedafinal judgment on April 28, 2016. Becauseappellant did notfile a motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice ofappeal was due to be filed on May18, 2016.See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on June 2,2016. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace periodallowed by Rule 26.3, he did notfile a motionfor extensionof time. A motion for extension of time isnecessarily implied when an appellant,acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 butwithin thefifteen-day grace periodprovided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959S.W.2d615, 617 (Tex. 1997) (construingthe predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal ina timely manner. See id.;TEX. R. APP. P. 26.3, 10.5(b)(1)(C). It is thereforeORDERED that appellant file, within fifteen days from thedate ofthis order, a response presenting a reasonable explanation for failing to file the notice of appeal ina timelymanner. If appellant fails to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). Allother appellate deadlines are suspended until further order of this court. _________________________________ Jason Pulliam, Justice IN WITNESS WHEREOF,I have hereunto set my hand and affixed the seal of thesaid court on this10th day of June, 2016. ___________________________________ Keith E. Hottle Clerk of Court	_Fourth_ Court of Appeals San Antonio, Texas _June_ _10,_ 2016 No. 04-16-00336-CV IN THE INTEREST _OF_ M.S.M., A CHILD, From the _57th_ Judicial District Court, Bexar County, Texas _Trial_ Court No. 2014PA02012 Honorable _Richard_ Garcia, Judge Presiding _ORDER_ The _trial_ court signed _a_ final _judgment_ on April 28, 2016. _Because_ _appellant_ _did_ _not_ file _a_ motion for new trial, motion _to_ modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, _the_ notice of appeal _was_ due to be filed on May _18,_ _2016._ See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice _of_ appeal was due on June 2, 2016. See TEX. R. APP. _P._ 26.3. Although appellant filed _a_ _notice_ of appeal within _the_ fifteen-day _grace_ period allowed by _Rule_ 26.3, he _did_ not file a motion for extension of time. A _motion_ for extension of time is necessarily implied _when_ _an_ appellant, acting in good faith, files a notice of appeal _beyond_ the time allowed by Rule 26.1 _but_ within the fifteen-day grace period _provided_ by Rule 26.3 for filing a motion for extension of time. See Verburgt _v._ Dorner, 959 _S.W.2d_ 615, 617 _(Tex._ 1997) (construing the predecessor to Rule 26). _However,_ the appellant must offer _a_ reasonable explanation for failing to file _the_ notice _of_ appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C). It is therefore _ORDERED_ that appellant file, within _fifteen_ days from _the_ _date_ of this order, a response presenting a reasonable explanation for failing to _file_ the notice of appeal in a timely manner. If appellant fails to _respond_ within _the_ time _provided,_ the appeal _will_ be _dismissed._ _See_ _TEX._ R. APP. _P._ 42.3(c). All _other_ appellate deadlines are suspended _until_ further order of this _court._ _________________________________ Jason Pulliam, Justice IN WITNESS _WHEREOF,_ I have hereunto set my _hand_ and _affixed_ the seal of the said court on this 10th day of June, 2016. _____________________________________ Keith E. Hottle _Clerk_ of _Court_
206 Okla. 199 (1952) 242 P.2d 448 RYAN v. ANDREWSKI et al. No. 34583. Supreme Court of Oklahoma. March 25, 1952. Champion, Champion & Wallace, Ardmore, and Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiffs in error. Champion, Fischl & Champion, Ardmore, for defendants in error. GIBSON, J. The parties appeared in the trial court in the same order as they appear in this court and will generally be referred to as plaintiffs and defendants. On August 20, 1947, Dan Ryan filed his petition in this action naming as defendants H.C. Andrewski, L.L. Robinson and the Prudential Insurance Company of America. He alleged a partnership between himself and the personal defendants and the issuance by the Prudential of ten separate insurance policies on his life, all payable to the partnership. He further alleged a dissolution of the partnership on February 29, 1944, and that due to an oversight no mention was made of the policies; that the insurable interest held by the partnership had terminated and although he had requested defendants to make a change, naming his wife as beneficiary, they had failed and refused so to do. He tendered the cash or loan value of the policies and prayed that the defendants be canceled as beneficiaries and that the Insurance Company be required to change the beneficiary as designated by him. On motion the petition was amended, naming the wives of the plaintiff and personal defendants as parties, it appearing that the wives were included as partners in the partnership agreement. Dan Ryan died October 14, 1948, and the action was revived with his widow, as executrix of his estate, named as a party plaintiff. Issue was joined and the case tried to the court. The Insurance Company pleaded that it was a stakeholder and 200 paid the proceeds of the policies into court, and is not a party to this appeal. Judgment was rendered for defendants, and plaintiffs appeal. On June 1, 1943, Dan Ryan, Jesse Willis Ryan, his wife, and the named defendants entered into a written partnership agreement to operate under the trade name "Oklahoma Distributing Company" to engage in the manufacture, sale and distribution of beer and other beverages, each partner acquiring an undivided one-sixth interest in all assets. The three husbands were named as managing partners. It was agreed that insurance on the life of each managing partner, in the sum of $50,000, should at all times be maintained and kept in force during the existence of such partnership, the premiums to be charged against the partnership. It was provided that a partner could terminate the partnership on specified notice, with the nonterminating partners having an option of purchase, for cash, and upon payment the partnership and assets should belong to those partners making the purchase, and further: "Upon any sale as herein provided the nonpurchasers shall thereupon cease to have any interest in the partnership property or its assets, and shall not be liable for any of its unsatisfied obligations or liabilities." Policies totaling $50,000 were purchased on the life of each of the three managing partners. In the application for Mr. Ryan's policies (ten in number, each for $5,000), Dan I. Ryan was named as "Proposed Insured", Oklahoma Distributing Company was "Applicant", and the beneficiary was named "Oklahoma Distributing Company of Ardmore, Oklahoma, a partnership, as such partnership now exists or may hereafter be constituted." Attached to each policy was the following endorsement: "Provisions as to Ownership and Control of the Policy "Subject to such limitations, if any, as may be hereinafter set forth, all legal incidents of ownership and control of the Policy, including any and all benefits, values, rights and options conferred upon the Insured by the Policy or allowed by the Company and any ultimate interest as beneficiary conferred upon the Insured or the Insured's estate by the Policy, shall belong to the following Owner: Oklahoma Distributing Co. of Ardmore, Okla., a partnership, as such partnership now exists or may hereafter be constituted." Thereafter the Company assigned all of the policies to Schlitz Brewing Company as collateral security for a loan of $100,000 payable in monthly payments. About nine months after its organization and on February 29, 1944, Ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. A new agreement on dissolution was executed by all partners. Among other things, it provided that the partnership was dissolved by mutual agreement; that each of the four remaining partners was to receive an undivided 1/4th interest "in and to all of the business assets and properties, real, personal and/or mixed, including accounts receivable and cash on hand remaining after the distribution of cash herein distributed to Dan Ryan and Jesse Willis Ryan"; that each of the Ryans was to receive in cash out of partnership assets an amount equal to 1/6th of the total net worth of the partnership at the time of its dissolution. Further, that the distributions so made were in full liquidation of said partnership, and the remaining four partners agreed to hold the Ryans harmless from any and all damage and liability occasioned on account of any partnership obligations. The books were audited by a certified public accountant and on his determination of the total net worth of the partnership Ryan and his wife were paid the sum of $65,118.04 for their 2/6ths interest in the enterprise. 201 The insurance policies were not specifically mentioned in the dissolution agreement. Some time later Mr. Ryan became ill. He began a series of requests or demands upon the Insurance Company and his former partners, contending that the Distributing Company as it then existed did not own the policy and requesting that the policies be returned and that his wife be named beneficiary. These negotiations were fruitless, and more than three years after dissolution of the partnership Mr. Ryan filed this action. Plaintiffs contend that the judgment is not supported by the evidence and is contrary to law. It is said that the policies were not disposed of in the written agreement of dissolution and that each partner was entitled to his pro-rata share of the undisposed assets, and that after the dissolution the resultant partnership had no insurable interest. The argument overlooks the provision of the dissolution agreement wherein there was distributed to the four remaining partners "all of the business assets and properties, real, personal and/or mixed ... after the distribution of the cash herein distributed to Dan Ryan and Jesse Willis Ryan etc.", and it overlooks the designated beneficiary which was the Distributing Company "as such partnership now exists or may hereafter be constituted." The accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, at that time, they had no cash value, but throughout the existence of the partnership the partners treated all policies as a business asset and property, and they had used the same to obtain a large loan for partnership use, which loan had not been repaid at the time of the dissolution. As a part of the agreement that obligation was assumed by the remaining partners and plaintiffs were held harmless from liability thereon. The premiums had been paid by the partnership and the sole beneficiary was the partnership. Miller v. Hall, 65 Cal. A.2d 200, 150 P.2d 287, cited by defendants, is not in point, by reason of the difference in facts from those of the instant case, including the designation of beneficiary. The case does hold that since the premiums were paid by the partnership the interest of the parties in the policies became partnership assets. Defendants say that a beneficiary irrevocably designated as such in a life policy has a vested right not subject to change at the insured's hand. In making this contention defendant is supported by the great weight of authority. "It is held by the great weight of authority that the interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery thereof, and, unless the same contains a provision authorizing a change of beneficiary without the consent thereof, the insured cannot make such change." Condon v. New York Life Ins. Co. of New York, 188 Iowa 658, 166 N.W. 452. The opinion cites many cases from various jurisdictions in support of the rule announced. See, also, Page v. Detroit Life Ins. Co., 11 Tenn. App. 417; Ruckenstein v. Metropolitan Life Ins. Co., 263 N.Y. 204, 188 N.E. 650. At the time of the dissolution agreement all policies were pledged with Schlitz Brewing Company to secure the partnership loan, and there was an unpaid balance of $70,000 on that debt. "Where partner contracted with his copartner that he should be beneficiary of partner's life policy, partner's attempt to change beneficiary after dissolution of partnership when partner owed money to copartner held ineffective (Rev. St. 1925, art. 5048)." Smith v. Schoellkopf (Tex. Civ. App.) 68 S.W.2d 346. While admitting that the partnership had an insurable interest in the life of Mr. Ryan, at the time the policies were written, plaintiffs say that there is no insurable interest possessed by *202 the partnership which continued after the dissolution. "An insurer is the only party who can raise question of insurable interest, and if insurer waives question of interest and pays money to named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary's lack of insurable interest. St. 1935, p. 636, sec. 10110." Jenkins v. Hill, 35 Cal. A.2	206 okla. 199 ( 1952 ) 242 p. 2d 448 ryan v. andrewski et al. no. 34583. supreme court of oklahoma. march 25, 1952. champion, champion & wallace, cochran, and pierce, rucker, mock, tabor & duncan, oklahoma city, for plaintiffs in error. champion, fischl & champion, respectively, for defendants in error. gibson, j. the claims appeared in the trial court in the same order as they appear in this court and will generally be referred to as plaintiffs and defendants. on august 20, 1947, dan ryan filed his petition in this action naming as defendants h. c. andrewski, l. l. robinson and the prudential insurance company of america. he alleged a partnership between himself and the personal defendants and the issuance by the prudential of ten separate insurance policies on his life, all payable to the partnership. he further alleged a dissolution of the partnership on february 29, 1944, and that due to an oversight to mention was made of the policies ; that the insurable interest held by the partnership had terminated and although he had requested defendants to make a withdrawal, naming his wife as beneficiary, they had failed and refused so to do. he tendered the cash or loan amount of the policies and prayed that the defendants be canceled as beneficiaries and that the insurance company be required to change the beneficiary as designated by him. on motion the petition was amended, naming the wives of the victims and personal defendants as parties, it appearing that the wives were included as partners in the partnership agreement. dan ryan died october 14, 1948, and the action was revived with his widow, as executrix sold his estate, named as a party plaintiff. issue was joined and the case tried to the court. the insurance company pleaded that it was a stakeholder and * 200 paid the proceeds of the policies into court, and is not a party to this appeal. judgment was rendered for defendants, and plaintiffs appeal. on june 1, 1943, dan ryan, jesse willis ryan, his wife, and the named defendants entered into a written partnership agreement to operate under the trade name " oklahoma distributing company " to engage in the manufacture, sale and distribution of beer and other liquor, each partner acquiring an undivided one - sixth interest in all assets. the three husbands were listed as managing partners. it was agreed that insurance on the life of each managing partner, in the sum of $ 50, 000, should at all times be maintained and kept in force during the existence of such partnership, the premiums to be charged against the partnership. it was provided that a partner could terminate the partnership on specified notice, with the nonterminating partners having an option of purchase, for cash, and upon payment the partnership and assets should belong to those partners making the purchase, and further : " upon any sale as herein provided the nonpurchasers shall thereupon cease to have any interest in the partnership property or its assets, and shall not be liable for any of its unsatisfied obligations or liabilities. " policies totaling $ 50, 000 were purchased on the life of each of the three managing partners. in the application for mr. ryan ' s policies ( ten in number, each for $ 5, 000 ), dan i. ryan was named as " proposed insured ", oklahoma distributing company was " applicant ", and the beneficiary was named " oklahoma distributing company of ardmore, oklahoma, a partnership, as such partnership now exists or may hereafter be constituted. " attached to each policy was the following endorsement : " provisions as to ownership and control of the policy " subject to such limitations, if any, as may be hereinafter set forth, all legal incidents of ownership and control of the policy, including any and all benefits, values, rights and options conferred upon the insured by the policy or allowed by the company and any ultimate interest as beneficiary conferred upon the insured or the insured ' s estate by the policy, shall belong to the following owner : oklahoma distributing co. of ardmore, okla., a partnership, as such partnership now exists or may hereafter be constituted. " thereafter the company assigned all of the policies to schlitz brewing company as collateral security for a loan of $ 100, 000 payable in monthly payments. about nine months after its organization and on february 29, 1944, ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. a new agreement on dissolution was executed by all partners. among other things, it provided that the partnership was dissolved by mutual agreement ; that each of the four remaining partners was to receive an undivided 1 / 4th interest " in and to all of the business assets and properties, real, personal and / or mixed, including accounts receivable and cash on hand remaining after the distribution of cash herein distributed to dan ryan and jesse willis ryan " ; that each of the ryans was to receive in cash out of partnership assets an amount equal to 1 / 6th of the total net worth of the partnership at the time of its dissolution. further, that the distributions so made were in full liquidation of said partnership, and the remaining four partners agreed to hold the ryans harmless from any and all damage and liability occasioned on account of any partnership obligations. the books were audited by a certified public accountant and on his determination of the total net worth of the partnership ryan and his wife were paid the sum of $ 65, 118. 04 for their 2 / 6ths interest in the enterprise. * 201 the insurance policies were not specifically mentioned in the dissolution agreement. some time later mr. ryan became ill. he began a series of requests or demands upon the insurance company and his former partners, contending that the distributing company as it then existed did not own the policy and requesting that the policies be returned and that his wife be named beneficiary. these negotiations were fruitless, and more than three years after dissolution of the partnership mr. ryan filed this action. plaintiffs contend that the judgment is not supported by the evidence and is contrary to law. it is said that the policies were not disposed of in the written agreement of dissolution and that each partner was entitled to his pro - rata share of the undisposed assets, and that after the dissolution the resultant partnership had no insurable interest. the argument overlooks the provision of the dissolution agreement wherein there was distributed to the four remaining partners " all of the business assets and properties, real, personal and / or mixed... after the distribution of the cash herein distributed to dan ryan and jesse willis ryan etc. ", and it overlooks the designated beneficiary which was the distributing company " as such partnership now exists or may hereafter be constituted. " the accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, at that time, they had no cash value, but throughout the existence of the partnership the partners treated all policies as a business asset and property, and they had used the same to obtain a large loan for partnership use, which loan had not been repaid at the time of the dissolution. as a part of the agreement that obligation was assumed by the remaining partners and plaintiffs were held harmless from liability thereon. the premiums had been paid by the partnership and the sole beneficiary was the partnership. miller v. hall, 65 cal. a. 2d 200, 150 p. 2d 287, cited by defendants, is not in point, by reason of the difference in facts from those of the instant case, including the designation of beneficiary. the case does hold that since the premiums were paid by the partnership the interest of the parties in the policies became partnership assets. defendants say that a beneficiary irrevocably designated as such in a life policy has a vested right not subject to change at the insured ' s hand. in making this contention defendant is supported by the great weight of authority. " it is held by the great weight of authority that the interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery thereof, and, unless the same contains a provision authorizing a change of beneficiary without the consent thereof, the insured cannot make such change. " condon v. new york life ins. co. of new york, 188 iowa 658, 166 n. w. 452. the opinion cites many cases from various jurisdictions in support of the rule announced. see, also, page v. detroit life ins. co., 11 tenn. app. 417 ; ruckenstein v. metropolitan life ins. co., 263 n. y. 204, 188 n. e. 650. at the time of the dissolution agreement all policies were pledged with schlitz brewing company to secure the partnership loan, and there was an unpaid balance of $ 70, 000 on that debt. " where partner contracted with his copartner that he should be beneficiary of partner ' s life policy, partner ' s attempt to change beneficiary after dissolution of partnership when partner owed money to copartner held ineffective ( rev. st. 1925, art. 5048 ). " smith v. schoellkopf ( tex. civ. app. ) 68 s. w. 2d 346. while admitting that the partnership had an insurable interest in the life of mr. ryan, at the time the policies were written, plaintiffs say that there is no insurable interest possessed by * 202 the partnership which continued after the dissolution. " an insurer is the only party who can raise question of insurable interest, and if insurer waives question of interest and pays money to named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary ' s lack of insurable interest. st. 1935, p. 636, sec. 10110. " jenkins v. hill, 35 cal. a. 2	206 Okla. 199 (1952) 242 P. 2d 448 RYAN v. ANDREWSKI et al. No. 34583. Supreme Court of Oklahoma. March 25, 1952. Champion, Champion & Wallace, Ardmore, and Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiffs in error. Champion, Fischl & Champion, Ardmore, for defendants in error. GIBSON, J. The parties appeared in the trial court in the same order as they appear in this court and will generally be referred to as plaintiffs and defendants. On August 20, 1947, Dan Ryan filed his petition in this action naming as defendants H. C. Andrewski, L. L. Robinson and the Prudential Insurance Company of America. He alleged a partnership between himself and the personal defendants and the issuance by the Prudential of ten separate insurance policies on his life, all payable to the partnership. He further alleged a dissolution of the partnership on February 29, 1944, and that due to an oversight no mention was made of the policies; that the insurable interest held by the partnership had terminated and although he had requested defendants to make a change, naming his wife as beneficiary, they had failed and refused so to do. He tendered the cash or /oaj value of the policies and prayed that the defendants be canceled as beneficiaries and that the Insurance Company be required to change the beneficiary as designated by him. On motion the petition was amended, naming the wives of the plaintiff and personal defendants as parties, it appearing that the wives were included as partners in the partnership agreement. Dan Ryan died October 14, 1948, and the action was revived with his widow, as executrix of his estate, named as a party plaintiff. Issue was joined and the case tried to the court. The Insurance Company pleaded that it was a stakeholder and * 200 paid the proceeds of the policies into vKurt, and is not a party to this appeal. Judgment was rendered for defendants, and plaintiffs appeal. On June 1, 1943, Dan Ryan, Jesse Willis Ryan, his wife, and the named defendants entered into a written LartnersNip agreement to operate under the trade name " Oklahoma Distributing Company " to engage in the manufacture, sale and distribution of beer and other bevDragec, each partner acquiring an undivided one - sixth interest in all assets. The three husbands were named as managing partners. It was agreed that insurance on the life of each managing partner, in the sum of $ 50, 000, should at all times be maintained and kept in force during the existence of such partnership, the premiums to be charged against the partnership. It was provided that a partner could terminate the partnership on specified notice, with the nonterminating partners having an option of purchase, for cash, and upon payment the partnership and assets should belong to those partners making the purchase, and further: " Upon any sale as herein provided the nonpurchasers shall thereupon cease to have any interest in the partnership property or its assets, and shall not be liable for any of its unsatisfied obligations or liabilities. " Policies totaling $ 50, 000 were purchased on the life of each of the three managing partners. In the application for Mr. Ryan ' s policies (ten in number, each for $ 5, 000 ), Dan I. Ryan was named as " Proposed Insured ", Oklahoma Distributing Company was " Applicant ", and the beneficiary was named " Oklahoma Distributing Company of SrdmPre, Oklahoma, a partnership, as such partnership now exists or may hereafter be constituted. " Attached to each policy was the following endorsement: " Provisions as to Ownership and Control of the Policy " Subject to such limitations, if any, as may be hereinafter set forth, all legal incidents of ownership and con$r(l of the Policy, including any and all benefits, values, rights and options conferred upon the Insured by the Policy or allowed by the C9mpZny and any ultimate interest as beneficiary conferred upon the Insured or the Insured ' s estate by the Policy, shall belong to the following Owner: Oklahoma Distributing Co. of Ardmore, Okla. , a partnership, as such partnership now exists or may hereafter be constituted. " Thereafter the Company assigned all of the policies to Schlitz Brewing Company as collateral security for a loan of $ 100, 000 payable in monthly payments. About nine months after its organization and on February 29, 1944, Ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. A new agreement on dissolution was executed by all partners. Among other things, it provided that the partnership was dissolved by mutual agreement; that each of the four remaining partners was to receive an undivided 1 / 4th interest " in and to all of the business assets and properties, real, personal and / or mixed, including accounts receivable and cash on hand remaining after the distribution of cash herein distributed to Dan Ryan and Jesse Willis Ryan "; that each of the Ryans was to receive in cash out of partnership assets an amount equal to 1 / 6th of the total net worth of the partnership at the time of its cisslution. Further, that the distributions so made were in full liquidation of said partnership, and the remaining four partners agreed to hold the Ryans harmless from any and all damage and liability occasioned on account of any partnership obligations. The books were audited by a certified public accountant and on his determination of the total net worth of the partnership Ryan and his wife were paid the sum of $ 65, 118. 04 for their 2 / 6ths interest in the enterprise. 201 The insurance policies were not specifically mentioned in the dissolution agreement. Some time later Mr. Ryan became ill. He began a series of requests or demands upon the Insurance Company and his former partners, contending that the Distribuhijg Company as it then existed did not own the policy and requesting that the policies be returned and that his wife be named beneficiary. These negotiations were fruitless, and more than three years after dissolution of the partnership Mr. Ryan filed this action. Plaintiffs contend that the judgment is not supported by the evidence and is contrary to law. It is said that the policies were not disposed of in the written agreement of dissolution and that each partner was entitled to his pro - rata share of the undisposed assets, and that after the dissolution the resultant partnership had no insurable interest. The argument overlooks the provision of the dissolution agreement wherein there was distributed to the four remaining partners " all of the business assets and properties, real, personal and / or mixed. .. after the distribution of the cash herein distributed to Dan Ryan and Jesse Willis Ryan etc. ", and it overlooks the designated beneficiary which was the Distributing Company " as such partnership now exists or may hereafter be constituted. " The accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, at that time, they had no cash value, but throughout the existence of the partnership the partners treated all policies as a business asset and property, and they had used the same to obtain a large loan for partnership use, which loan had not been repaid at the time of the dissolution. As a part of the agreement that obligation was assumed by the remaining partners and plaintiffs were held harmless from liability thereon. The premiums had been paid by the partnership and the sole beneficiary was the partnership. Miller v. Hall, 65 Cal. A. 2d 200, 150 P. 2d 287, cited by defendants, is not in point, by reason of the difference in facts from those of the instant case, including the designation of beneficiary. The case does hold that since the premiums were paid by the partnership the interest of the parties in the policies became partnership assets. Defendants say that a beneficiary irrevocably designated as such in a life policy has a vested right not subject to change at the insured ' s hand. In making this contention defendant is supported by the great weight of authority. " It is held by the great weight of authority that the interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery thereof, and, unless the same contains a provision authorizing a change of beneficiary without the consent thereof, the insured cannot make such change. " Condon v. New York Life Ins. Co. of New York, 188 Iowa 658, 166 N. W. 452. The opinion cites many cases from various jurisdictions in support of the rule announced. See, also, Page v. Detroit Life Ins. Co. , 11 Tenn. App. 417; Ruckenstein v. Metropolitan Life Ins. Co. , 263 N. Y. 204, 188 N. E. 650. At the time of the dissolution agreement all policies were pledged with Schlitz Brewing Company to secure the partnership loan, and there was an unpaid balance of $ 70, 000 on that debt. " Where partner contracted with his copartner that he should be beneficiary of partner ' s life policy, partner ' s attempt to change beneficiary after dissolution of partnership when partner owed money to copartner held ineffective (Rev. St. 1925, art. 5048 ). " Smith v. Schoellkopf (Tex. Civ. App.) 68 S. W. 2d 346. While admitting that the partnership had an insurable interest in the life of Mr. Ryan, at the time the policies were written, plaintiffs say that there is no insurable interest posssesed by * 202 the partnership which continued after the dissolution. " An insurer is the only party who can raise question of insurable interest, and if insurer waives question of interest and pays money to named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary ' s lack of insurable interest. St. 1935, p. 636, sec. 10110. " Jenkins v. Hill, 35 Cal. A. 2	206 Okla. 199 (1952) 242 P.2d 448 v. ANDREWSKI et al. No. 34583. Supreme Court of Oklahoma. 25, 1952. Champion, Champion & Wallace, Ardmore, and Pierce, Rucker, Mock, & Oklahoma City, for plaintiffs in error. Champion, Fischl & Champion, Ardmore, defendants in error. GIBSON, J. The parties appeared in the trial court in the same order as they appear in this court and will generally referred as plaintiffs defendants. On August 1947, Dan Ryan filed his petition in this naming as defendants Andrewski, L.L. and the Prudential Insurance Company of He alleged a partnership himself and personal defendants and the issuance by the Prudential of separate insurance policies on life, all payable to the partnership. He further alleged a dissolution the partnership on February 1944, and that due to an oversight no was made of the policies; that the insurable interest held by the partnership terminated and although had requested defendants to make a change, naming his wife as beneficiary, they failed and refused so to do. He tendered the cash or loan value of the policies and prayed that the defendants be canceled as beneficiaries and that the Insurance Company be to change the as designated by him. On motion the petition was amended, naming the wives of the plaintiff and personal as it appearing that the wives were as in partnership Dan Ryan died October 14, 1948, and the action was revived with his widow, as executrix of his estate, named as a party plaintiff. Issue was joined and the case tried to the court. The Insurance Company pleaded that it was a stakeholder 200 paid the proceeds of the policies into court, and not a party to this appeal. Judgment was rendered for defendants, and plaintiffs appeal. On June 1, 1943, Dan Ryan, Willis Ryan, his and the named entered a written partnership agreement to operate under the trade name "Oklahoma Company" engage in the manufacture, sale distribution of beer and other beverages, each partner acquiring an undivided one-sixth interest in all assets. three husbands named as managing partners. It was that insurance on the life of each managing partner, in the of $50,000, should at all times be maintained and kept in force during the existence of such partnership, the premiums to be charged against the It was provided that a partner could terminate the partnership on specified notice, with the nonterminating having an option of for cash, and upon the partnership assets should belong to those partners making the and further: "Upon any as herein the shall thereupon cease to have interest in the partnership property or its assets, and shall be liable for any of its unsatisfied obligations liabilities." Policies totaling $50,000 were purchased on life each of three managing partners. In the application for Mr. Ryan's policies (ten in number, each for Dan I. Ryan was named as "Proposed Insured", Distributing Company was "Applicant", and the beneficiary was named "Oklahoma Distributing Company of Oklahoma, a partnership, as such partnership exists may hereafter be constituted." Attached to each policy was the following endorsement: "Provisions as to and Control of the Policy "Subject to such limitations, as be hereinafter set forth, all legal incidents of ownership and control of the Policy, including any and all benefits, values, rights and options conferred the by the Policy or allowed by the and any ultimate interest as beneficiary conferred upon the Insured or the Insured's by the Policy, shall belong to the following Owner: Oklahoma Distributing Co. of Ardmore, a partnership, as such partnership now exists hereafter be constituted." Thereafter the Company assigned all of the policies to Schlitz Company as collateral security for a loan of payable in monthly payments. About nine months after its organization and on February 29, 1944, Ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. A new agreement on dissolution was executed by all partners. Among other things, it provided that the partnership was dissolved by mutual agreement; that each of four remaining partners was to receive an undivided 1/4th interest "in and to all of the business assets and properties, real, personal and/or mixed, accounts receivable and on hand remaining after distribution of cash herein distributed to Dan Ryan and Jesse Willis Ryan"; that each the Ryans was to receive in cash out of partnership assets an amount equal to 1/6th of the total net worth of the partnership at the time of its dissolution. that the distributions so were in full liquidation of said partnership, and the four partners to hold the harmless from any and all damage and liability occasioned on account of any partnership obligations. The books were audited by a certified accountant and on his of total net worth of the partnership Ryan and his wife were paid the $65,118.04 for 2/6ths interest in the The insurance were not specifically mentioned in the dissolution Some time later Mr. Ryan became ill. He began a series of requests or demands upon Insurance and his partners, contending that the Distributing Company as it then existed did not own the policy and requesting the policies returned that his wife be named beneficiary. These negotiations were fruitless, and more than three years after of the Mr. Ryan this action. Plaintiffs that the judgment is not supported by the and is contrary to law. is said the policies were not disposed of in the written agreement of dissolution that each partner was entitled to his pro-rata share the undisposed assets, and that after the dissolution the resultant partnership had no insurable interest. overlooks the provision of the dissolution agreement wherein was distributed to the four remaining partners "all of the business and properties, real, personal and/or mixed ... after the distribution of the cash herein to Dan Ryan and Jesse Willis Ryan etc.", and it overlooks beneficiary which was the Distributing Company "as such partnership now exists or may hereafter be constituted." The accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, that time, had no cash value, throughout the existence of partnership the partners treated all policies a business asset and property, and they had used the same to obtain a large loan for partnership use, loan had not been repaid at the time of the dissolution. As a part the that obligation was assumed by the remaining partners and plaintiffs were held harmless from liability thereon. The premiums had been paid by the partnership and sole beneficiary was the partnership. Miller v. Hall, 65 Cal. A.2d 200, 150 P.2d 287, cited by defendants, is not in point, by reason of the difference in facts from those of the instant case, including the designation of beneficiary. The case does hold that since the premiums were paid by the partnership the interest of parties the policies became partnership assets. Defendants say that a beneficiary irrevocably as such in a life policy has a vested right not subject to change at the insured's hand. In making contention defendant is supported by great weight of authority. "It is held by the great weight of authority the interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery and, the same contains a provision authorizing a change of beneficiary without the consent thereof, the insured cannot make such change." Condon v. New York Life Co. of New York, Iowa 658, 166 N.W. 452. The cites many cases from various jurisdictions in support of the rule announced. See, also, Page v. Detroit Life Ins. Co., 11 Tenn. App. 417; Ruckenstein v. Metropolitan Life Ins. Co., 263 N.Y. 204, 188 N.E. 650. At the time of the dissolution agreement all policies pledged with Schlitz Brewing Company to secure the partnership loan, and there was an unpaid of $70,000 on that debt. "Where partner contracted with his copartner that he should be beneficiary life policy, partner's attempt to change after dissolution partnership when partner owed money to copartner held ineffective (Rev. St. 1925, 5048)." Smith Schoellkopf (Tex. Civ. App.) 68 346. While that the partnership had an insurable in the of Mr. Ryan, at the time the were written, plaintiffs say that there no insurable possessed by 202 the partnership which continued the dissolution. "An insurer is the only party who can raise question of insurable interest, and if insurer waives question of interest named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary's lack of interest. St. 1935, p. 636, sec. 10110." Jenkins v. Hill, 35 Cal. A.2	206 OKlA. 199 (1952) 242 p.2d 448 rYan V. aNDRewSki Et aL. NO. 34583. SUPrEME CoURT Of OKLahOMA. mArCh 25, 1952. CHAMpioN, ChampIon & wallace, ardmOrE, aND PIeRCE, RuCKEr, mOcK, tAboR & dUNCaN, oKlAhoma city, FOR plaINtIfFs in eRROR. ChAMPiOn, fiScHL & cHampIoN, aRdmoRE, For dEfENDANts iN ERroR. GibsoN, J. the PARtIES aPpeAReD In the TriAL COurt In tHE saMe ORdeR aS they apPeAr IN THIS couRT aNd wIlL geNERALly be ReFeRreD To aS PLaIntiffs anD DeFenDaNtS. On AuGUsT 20, 1947, DAn rYan FILEd HIS PeTiTIOn IN tHIs ACtioN NAMIng as defenDAntS H.C. ANDrEWsKi, L.l. robinsON anD THe PrUDEntIaL insurance COMPany OF America. hE ALlEgEd A pArtneRsHiP bETwEen himsElF aNd tHE pERSOnaL DefENDanTs AND tHe issUance BY ThE prUDentiaL of TEN sePARate inSuRANCE pOLICIES on HIS LIFE, alL payabLE tO The pArtNeRshiP. He fUrTheR ALlEged A DissOLutiON OF THE PARTNErship ON feBRUAry 29, 1944, and thaT duE TO an OverSiGHt NO mENTIOn wAS mAde OF THe POlIcIES; tHAT The iNsURaBLE inTEReST held By THe PARTnerShIp HAd TERMInAtEd anD AltHoUgH he HaD REquESteD DeFEnDanTS tO maKe A ChANGE, namiNG hIS wiFe as BenEFiciary, THey HAD failed AND RefuseD so tO dO. hE teNDEreD THE Cash or LoAn VaLUe oF ThE POLiciEs anD pRAYEd tHaT thE dEfEndAntS bE caNCELED as BeNeficiariEs ANd thAT THE iNsurance COmPANy bE rEquirED To cHaNge ThE BenEfICiaRY aS DeSiGNATed bY him. On MotION The pEtitIOn waS AMEnDEd, NAMinG the WIVEs OF THE plaintIfF aNd PerSoNAl deFENdAntS AS PaRtIES, It apPeAriNG tHaT tHE wIVES WErE IncLUDeD As paRTnERS IN The pArtnERsHip aGrEEmenT. dAN rYan DiED oCTober 14, 1948, aND tHe aCtioN WAs REViVed wiTh HIS WidOW, As exECutrIx of HIS EStatE, naMEd AS A PArTy pLaintIFF. iSSUE was JoiNED ANd ThE cASe TRiEd To THe CoURT. THe InsurAnCE COMpany PLeADeD tHat It WaS a sTakehOLder aNd 200 PAID The PRocEEDs OF THe pOlicIeS INTo couRt, AND iS NoT A PARTY tO THis ApPEaL. JudgMENT WAS renDEred fOr deFeNdAnTS, AND PlAIntiFfs APpeAl. on JunE 1, 1943, DaN ryan, jESsE WILliS RyaN, HiS wifE, AND The named dEfenDAnTs eNtERED iNTo a wRittEn pARtnership AgREement TO OPerAtE UNDeR The tRADE NAmE "OkLahOMa distriButinG cOmpANY" tO ENgAgE iN thE ManUFACTure, SaLe aND DISTriBUtiON OF bEeR and otheR BEVErages, EAch pARTneR aCQUIRinG an UndiViDEd ONe-sIXtH inTeReST in aLL assETS. thE ThREE HUSbaNDS weRe NaMeD as MANAGiNg paRtNErS. It wAs agrEED ThaT iNsuRAncE on the liFE oF EAcH maNagIng pArTneR, In ThE sUm Of $50,000, SHOULd AT alL TImeS Be MAINTAInEd and kePt In foRCE duRINg the exIStEnCe oF SUCh paRTneRsHIP, the premiumS TO BE chaRgED agAiNSt tHe PartneRsHiP. iT WaS prOvIDed ThaT a pARTNEr couLd tErmiNaTe THE partneRShIp oN sPECIfiEd NotIcE, WITH tHE NoNTermInaTing PaRTners HAVing aN opTiOn of PUrcHAsE, fOR casH, AnD UpoN pAYMENT ThE PartnErSHIP and AssEtS shouLD bElONG TO ThOSe ParTNERS maKING tHe pURChasE, aNd FuRthER: "uPON ANY SalE as Herein PROvIded THe nOnPurcHasErs shALl THEReUPoN cEaSe to HAVe ANY InterEst iN THE paRtNeRsHIp pRoperty or iTS aSSeTs, and sHAlL NOt bE LiabLe fOr aNY of iTS uNsaTIsFIEd ObligatIONs oR LIaBIliTies." polIcIes TotalInG $50,000 WERE pUrCHAseD oN THe LifE oF EaCh oF tHE threE MANAgINg parTnerS. In THe aPpLiCATioN FoR Mr. rYAn's pOlICIEs (TeN in nuMBer, EACh fOR $5,000), DaN I. RyAn wAS nAMED As "proposed insured", oKlAHoma DistrIbUTing ComPany waS "appLiCant", and THe BeNeFiciaRY was NAmED "oklAHoMA DIsTrIBUTINg cOmpANy of arDmORe, oklahoma, a partneRSHIP, As SUcH ParTnershiP nOw eXiSTS OR MAY heReaftER bE consTItUTED." AttacHed to eaCh poliCy wAS The fOLlOWiNG ENDoRsEmenT: "PRoviSIONs AS to OWNERSHIP aND CoNTROL OF the POLICY "SubJect To SuCH LiMitAtionS, IF ANy, as MAy be hEreInAFtER set FORtH, all LeGAl iNCiDentS OF owNeRsHIp aNd CoNtROl oF tHE pOlIcY, IncludiNg anY ANd ALl BEnefItS, VAluES, riGhTS AND oPTions ConferReD UPOn tHe iNSuReD bY The policy OR aLLoweD BY tHE cOmpaNY anD Any ULTImatE iNteREST AS BEneFicIARy CONfERreD Upon THE insUreD Or tHe INSUrED's esTAtE By tHE pOlICY, ShAll belONG to The FOLLOWinG OwNeR: OKLAhomA DistrIbuTiNg cO. Of ArdMoRe, okla., A PARtnErShIp, AS SUcH paRTNerShIP Now EXISts oR MAY HeReaFTeR Be constituTED." thEReAFteR thE comPany AssIgned All oF the pOLIciEs to SChLiTZ BREwInG COmPaNY AS cOllaTERAl sECURiTy FOr A lOan Of $100,000 Payable iN mONTHLY pAyMents. aBouT NInE MONThs AfTER Its OrGAnIzaTiON And on FeBRUaRY 29, 1944, RyAn and wiFe wiTHDrEW froM thE ParTnership aND eLECTEd To sELl tHEiR inTeREsTS To thE oTHER PARtnErS FoR cAsh, as proVided in THe ParTnERSHip agReemENt. A nEW agREemENt oN DISSoLUtioN WAs EXEcUtED by all parTNers. AMONg OTher thingS, iT ProVIDed tHat the PArTNerShIp WAS DissolveD by MuTuAl AgReeMEnt; tHAt EAcH Of ThE FOur REmAIninG partNeRS Was To RECeIve an unDiVIDed 1/4Th iNTEReSt "In and To all Of thE businEsS AsSetS and ProPeRtIes, REAl, peRSOnAl aNd/oR MIXED, inClUDINg aCcoUNts ReceiVAbLE aNd Cash On hANd REmainiNg aftEr The DiSTRibuTioN OF CASH HeReIn distrIbutEd To DAn RYAN aNd jessE williS ryan"; tHaT eACH OF THe ryanS waS TO reCEIvE iN Cash oUT of PArtNershiP aSSeTS AN AMOUnt EQuaL tO 1/6th of THe ToTAl NEt WORtH oF THE PartNErship AT THe tiME OF ITS disSolUTION. FUrthEr, tHaT thE disTrIbutIons sO maDe WeRe in fuLL liquIDatIon OF saID ParTnErShiP, aNd ThE ReMaInInG fOuR PaRtneRs agreEd TO HOLD tHe rYans hARMlEsS froM any anD All DaMaGE and LiabIliTY OCcAsiOnEd On aCcouNT OF ANy pARTNERShiP OblIgations. tHE bOoks weRE AUDiTED BY A CERTifIED puBlIc AcCountanT ANd ON HiS DETeRMiNaTiOn oF THE ToTal NEt WOrTH of thE PartneRShiP rYan AND hIs WIfe wErE paiD THE sum oF $65,118.04 FOR ThEiR 2/6tHs inTEReST In The enTErpRiSE. 201 ThE INSURance PolicIeS werE NoT SPECIFICALly mEntiONED in THe dissOLUTION agrEEmEnT. SOMe Time LATEr mR. RYAn becamE ILL. HE BEGan a serIes Of REQUEstS Or dEMAnDS UPOn thE INsURancE COMPaNY anD hIs FoRMER pARtNerS, conTENDIng tHat thE dIStRiBUtIng COmPAny as IT THen exiSTED dID nOt OWN thE pOlicy ANd requEStinG ThaT the POlIciEs Be rETurnED ANd that HIs wIfe be NAMeD bENEFIcIaRy. thesE NeGOTiAtioNs were frUITLEsS, AnD moRe THaN tHree YearS AFteR dissOluTIoN of THE PartnerShip mR. ryAn fiLEd thIs AcTiOn. PLaiNtIFfs cONTEnd ThaT tHE JUDgmeNT IS NOT SuPPORTEd bY THE eViDeNce AnD is cONtrarY tO LAw. It is SAId that THE poLicIEs WErE noT dISPOSed oF in the WrIttEN agrEeMeNT of DiSSoluTion And ThaT eacH pArtNER WAS entITLed To hIs pRO-ratA sharE of THe uNdISpOSeD asSEtS, ANd tHat afTeR THe diSsOLUtiOn the ReSuLTAnt PARtNERShiP Had No inSURABle INTEREST. The argument ovErlooks The PRoVISiON of THe DiSSoLuTion aGREeMeNT wHerEIN theRE waS diStRIBUtEd to THE fOUR rEMaINInG partNERs "all oF ThE bUSinESs ASSETS aNd pRoPeRTIeS, REAL, perSOnaL aND/or MiXeD ... After THE dIsTRibUtION OF THe CAsh Herein disTRIbUTED tO DAn RYAN and jESse WiLlIs RYaN ETc.", anD it overloOKS tHe DEsiGNaTED bENEFIcIary WHIcH wAS thE DIStRibUtINg comPANY "as sUCH PaRtnersHiP NOW exISTs Or may hEreAfTEr be ConstitUtED." THe aCCOUNTaNt Who MADE tHE AudiT, UPON wHICH THE DIStRiBuTion oF asseTS wAs baSeD, DId NOT liST thE POliCIes aS AssEtS beCauSe, AT thAt tImE, TheY HAd nO caSH vALUe, but througHOUt tHE exIstencE OF THE ParTNERSHIP tHE partNErs TreATed AlL pOLiCIEs As A buSinEss aSSET and propertY, aND they Had uSEd thE Same tO oBtain a lARGe LOaN for PARTNERSHip uSe, whiCh Loan HaD nOt BEEn RePAiD at tHE TIME of THE dIssolUtion. AS A part OF THe AGReemENT ThAT OBLIGatioN was AsSUMed By THe remainIng PArtnERS anD PlaINtiFfS wEre HeLD HaRmlEsS frOM lIAbiLITy ThEreoN. thE preMIuMs hAd bEEN Paid bY ThE PARtNERshIP And thE soLe bEnEficIArY WaS The PArtNERship. MilleR V. Hall, 65 cAl. a.2D 200, 150 P.2D 287, CitEd BY dEfendaNTs, Is not in PoInT, bY rEason Of ThE dIFFeReNCe iN fACTs fROm tHOSe of THe instAnT cASe, INcLuDing The dEsiGnatIon OF beNeFICiaRY. ThE cASe DoES hoLD tHAT SIncE the preMiUms wERE PAID BY The PaRtnERshIp THe InTereSt Of the partieS iN thE PolicieS beCame PartnErshIP AsSeTs. dEFENDantS Say that A BeneFICiARy IrRevOcably DesIgnATED As suCh in a lIFe pOLiCy Has a veSteD rIghT NoT SUbject To ChanGE At ThE InSuRED'S HAnD. iN MaKing THis ConTenTioN DeFEndaNT IS sUpPorTeD BY THe gReAT WeigHT oF AuTHORIty. "IT iS hELd BY The GReaT wEIGhT of AuThOriTy ThaT tHe inteRESt Of a DESIgNATEd bEneficiary IN an ORdInary life POlICy VEStS uPon tHE ExecutIOn AND delIVery tHEREOF, And, UNLeSs THe SAMe coNtAiNs A pROvisIoN aUthoRIzinG A changE oF BenEfICiARy witHOuT THE coNSENt theReoF, THE insUrED CANNOt MaKE sUcH change." CONdon v. New YORK lIfE ins. Co. Of neW yORK, 188 ioWa 658, 166 N.w. 452. THE OPINIOn CITes MANy cAses FRoM vaRIOUs jUrIsdICTions IN SUPPoRT of tHe RUlE announcED. sEE, aLsO, PagE V. deTRoIt lIfe Ins. Co., 11 Tenn. apP. 417; RuCkenstEin V. METroPOLITAN lIFE iNs. co., 263 N.Y. 204, 188 n.E. 650. AT tHE TIme of The DIsSoLutIOn AGREEMEnt All pOLICies WEre pLeDged wIth SChLItZ breWing CompaNY TO sECUrE tHe pARTnerShip LOAN, AnD thERE was AN uNpaid BAlancE oF $70,000 on tHat DeBt. "WheRe parTNer cOnTRAcTed WIth hIs coparTNeR tHAT HE sHOULd Be bENEfICiaRY Of partnER's lIFE POlIcy, paRTNER's attemPt To CHaNge BeNefIciArY aftER DIsSoLutiON OF pArtneRShIp When parTnER Owed MoNeY To coPARtNER HEld INEFFeCTIVE (reV. ST. 1925, Art. 5048)." SmiTh V. sChOElLKopf (TeX. ciV. ApP.) 68 S.w.2d 346. WhilE AdmiTTInG THaT The PaRtNErsHiP had AN INSuraBlE INtEresT In ThE Life oF mR. rYan, aT tHE TimE tHE POlICies Were wRiTTen, PLAINTIfFs sAy THAT THere is no insUrABLe iNTEReSt PoSSEssEd by *202 thE PArtNershIP whICH ContiNuED AFTer THe DIsSOlution. "An insurer iS the Only paRTY wHo can rAIsE QUestiOn oF iNSuRable inTeresT, aNd iF inSUrER WAiVES QueStion of INteResT aND pAYs Money tO nAMeD BEnEfiCIARy, Or IntO CourT, NEiTHEr PerSONaL RePreseNtATiVE Nor cReDitoRS CAn CLaIm ProCEedS oN GROUnds Of benEFiciARy's laCk Of InSuRaBLE iNtERest. ST. 1935, P. 636, sEC. 10110." JeNKiNS V. HILL, 35 CaL. a.2	206 Okla. 199 (1952) 242P.2d 448 RYAN v. ANDREWSKIetal. No. 34583. Supreme Court of Oklahoma. March25, 1952.Champion, Champion & Wallace, Ardmore, andPierce,Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiffsin error. Champion,Fischl &Champion,Ardmore, for defendants in error. GIBSON, J. The parties appeared in the trial court in the sameorder as they appear in this court and will generallybe referred to as plaintiffs anddefendants. On August 20, 1947, DanRyan filedhispetition in thisaction namingas defendants H.C. Andrewski, L.L.Robinson and the Prudential InsuranceCompanyof America. He alleged a partnership betweenhimself and the personal defendants and the issuance by the Prudential of ten separate insurance policieson his life, all payable to the partnership. He further alleged a dissolution of the partnership on February 29, 1944, and that due to an oversight no mention was made of the policies; that the insurable interest held by the partnership had terminated and although he had requested defendants to make a change, naming his wife as beneficiary, they had failed and refusedso to do. He tenderedthe cash orloan value of the policies andprayed that the defendants be canceled as beneficiaries and that the Insurance Company be required to change the beneficiary as designated byhim. On motion the petitionwas amended, naming the wives of the plaintiff and personal defendants as parties, itappearing that the wives were includedas partners in the partnership agreement. Dan Ryan diedOctober14, 1948, and the action was revived with his widow, as executrix of hisestate, named as a party plaintiff. Issue was joined and the case triedto the court. The Insurance Company pleaded that it was a stakeholder and 200 paid the proceeds of the policies into court, and is not a partyto this appeal. Judgment wasrendered for defendants, and plaintiffs appeal. OnJune 1, 1943, Dan Ryan, Jesse Willis Ryan, his wife, and thenamed defendants entered into a written partnership agreement to operate underthe trade name "Oklahoma Distributing Company" to engage in the manufacture, sale and distribution of beer and other beverages, each partner acquiring an undivided one-sixth interest in all assets.The threehusbands were named as managingpartners. It wasagreed that insuranceon the life of each managing partner,in the sum of $50,000, should at all times be maintained and kept in force during the existenceof such partnership,the premiums to be charged against the partnership. Itwas provided that apartner could terminate thepartnership on specified notice, with the nonterminatingpartners having an option of purchase, for cash, and upon payment the partnership and assets should belong to those partners making the purchase,and further: "Upon anysale as herein provided thenonpurchasers shall thereupon cease to have any interest in the partnership property or its assets, and shall notbe liable for any of its unsatisfied obligations or liabilities." Policies totaling $50,000 were purchased on the life of each of the three managing partners. In the application for Mr. Ryan's policies (ten in number, each for$5,000), Dan I. Ryan was named as "Proposed Insured", OklahomaDistributing Company was "Applicant", and the beneficiary wasnamed "OklahomaDistributing Companyof Ardmore, Oklahoma, a partnership, assuch partnership now exists or may hereafter beconstituted." Attached to eachpolicy was the following endorsement: "Provisions as to Ownership and Control ofthe Policy "Subject to such limitations, if any, as may be hereinafterset forth, all legal incidentsof ownership and control of thePolicy, including any and all benefits,values, rights and options conferred upon theInsured bythe Policy orallowed by the Company and any ultimate interest as beneficiary conferred upon the Insured or the Insured's estate by the Policy, shallbelong to the following Owner:Oklahoma Distributing Co. of Ardmore, Okla., a partnership, as such partnership now exists or may hereafter beconstituted." Thereafter the Company assigned all ofthe policies to Schlitz Brewing Company as collateral security fora loan of $100,000 payable in monthly payments. About ninemonthsafter itsorganization and on February 29, 1944, Ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. A new agreement on dissolution was executed byall partners. Among other things, it provided that the partnership was dissolved by mutual agreement; thateach of the four remaining partners was to receive anundivided 1/4thinterest "in and to all of the business assets and properties,real, personaland/or mixed, including accountsreceivable and cashon handremaining afterthe distribution of cash herein distributed to Dan Ryan and Jesse Willis Ryan"; thateach of the Ryans was to receive in cash out of partnership assets an amount equal to 1/6th of the total networth of the partnership at the time ofits dissolution. Further, that the distributions so made were in full liquidationof said partnership, and theremaining four partners agreed to holdthe Ryans harmless from any andall damage and liabilityoccasioned on account of any partnership obligations.The bookswere audited by a certified public accountant and on his determination of the total net worth of the partnership Ryan andhis wife were paid the sum of $65,118.04 for their2/6ths interest in the enterprise. 201 The insurance policieswerenot specifically mentioned inthe dissolutionagreement. Some time later Mr. Ryan became ill. He began a series of requests ordemands upon the Insurance Company and his former partners, contendingthat theDistributing Company as it then existed did not own the policy and requesting that the policies be returnedand that his wife benamedbeneficiary. These negotiations were fruitless, and more than three years afterdissolution ofthe partnershipMr. Ryan filedthis action. Plaintiffs contend that the judgment is not supported by the evidence and is contrary tolaw. Itis said that the policies were not disposed of in the written agreement of dissolution and that each partnerwas entitledto his pro-rata share ofthe undisposed assets, and that after the dissolution the resultant partnership had no insurable interest.The argument overlooks the provision of the dissolution agreement wherein there wasdistributed to the fourremaining partners "all of the business assetsand properties, real, personal and/or mixed ... after the distribution of thecash herein distributed to Dan Ryanand JesseWillis Ryan etc.", anditoverlooks the designatedbeneficiary which was the Distributing Company "as such partnership now exists or mayhereafter be constituted." The accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, atthat time, they had no cash value, but throughout the existence of thepartnership the partnerstreated all policiesas a business asset andproperty, andthey had usedthe same toobtaina large loan for partnershipuse,which loan hadnot been repaid at the time of the dissolution. As apart ofthe agreement that obligation was assumedby theremaining partners and plaintiffs were held harmless from liabilitythereon. Thepremiums hadbeen paid bythe partnership and the sole beneficiary was the partnership. Miller v. Hall, 65 Cal.A.2d 200, 150 P.2d 287, cited by defendants, is not in point, by reason of thedifference in facts from thoseof theinstant case, including the designationof beneficiary. The case does hold thatsince the premiums were paidby the partnership the interest of the parties in the policies became partnership assets. Defendants say that a beneficiary irrevocably designatedas suchin a life policy has a vested right not subject to change attheinsured's hand. In making this contention defendantis supported by the great weight of authority. "Itis held bythe great weight of authority thatthe interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery thereof, and, unlessthe same contains a provision authorizinga change of beneficiary without the consent thereof, theinsured cannot make such change." Condon v. NewYork Life Ins. Co. of New York, 188 Iowa 658, 166 N.W. 452. The opinion cites many cases from various jurisdictions in support ofthe rule announced. See,also, Pagev. Detroit Life Ins. Co., 11 Tenn. App. 417; Ruckensteinv. Metropolitan Life Ins. Co., 263 N.Y. 204, 188N.E. 650. At the time ofthe dissolution agreement all policies were pledgedwith Schlitz Brewing Company to secure the partnership loan, and there was an unpaid balanceof $70,000 onthatdebt. "Where partner contracted with his copartner that he should be beneficiary of partner's life policy, partner's attempt to change beneficiary after dissolution of partnership when partner owed money tocopartner held ineffective (Rev. St. 1925, art. 5048)." Smith v. Schoellkopf (Tex. Civ. App.) 68 S.W.2d 346. While admittingthat the partnershiphad an insurable interest in the life of Mr. Ryan, at the time the policies were written, plaintiffs say thatthere is no insurable interest possessed by *202the partnership which continued after the dissolution. "An insureris the onlyparty who can raisequestionof insurable interest, andif insurerwaives question ofinterestand pays money to named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary'slackof insurableinterest. St. 1935, p. 636, sec.10110." Jenkins v. Hill, 35 Cal. A.2	_206_ Okla. 199 (1952) _242_ P.2d 448 RYAN _v._ ANDREWSKI et al. _No._ _34583._ Supreme Court _of_ Oklahoma. March 25, 1952. _Champion,_ Champion & Wallace, Ardmore, _and_ Pierce, _Rucker,_ Mock, _Tabor_ & Duncan, Oklahoma City, for plaintiffs in error. Champion, Fischl & Champion, Ardmore, _for_ defendants _in_ error. _GIBSON,_ _J._ The _parties_ appeared in the trial court in the _same_ order as _they_ appear _in_ this court and will generally be referred to as _plaintiffs_ _and_ defendants. _On_ August 20, 1947, Dan _Ryan_ filed his petition in this action naming _as_ defendants _H.C._ Andrewski, L.L. Robinson and the _Prudential_ Insurance Company _of_ _America._ He alleged a partnership between himself and the personal defendants and the issuance by the Prudential of ten separate insurance policies on his life, all _payable_ to the partnership. _He_ further alleged a dissolution of _the_ partnership on February 29, 1944, and that due to an oversight no mention was made of the policies; _that_ _the_ insurable interest held by the partnership had terminated and although he had requested _defendants_ to make _a_ change, naming his wife as beneficiary, they had failed and refused _so_ to do. He tendered the cash _or_ _loan_ value of _the_ _policies_ and prayed that the defendants be canceled as beneficiaries and that the Insurance Company be required to change the beneficiary _as_ designated by him. On motion the petition was amended, _naming_ the wives of the _plaintiff_ and personal defendants as _parties,_ it _appearing_ _that_ _the_ wives were included as partners in the partnership agreement. Dan Ryan died October 14, 1948, and the action _was_ revived with his _widow,_ _as_ executrix _of_ his estate, named _as_ a party plaintiff. Issue was joined and _the_ case _tried_ to the court. The _Insurance_ _Company_ pleaded _that_ _it_ was a stakeholder and 200 paid the proceeds of the _policies_ into _court,_ and is _not_ a party to this appeal. _Judgment_ was rendered for defendants, and plaintiffs _appeal._ On _June_ _1,_ 1943, Dan Ryan, Jesse Willis Ryan, his wife, and the named defendants entered into a written partnership agreement to operate under the trade name "Oklahoma Distributing Company" _to_ engage in _the_ _manufacture,_ sale and distribution of beer and other beverages, each partner acquiring an undivided one-sixth _interest_ in all _assets._ _The_ three husbands were named _as_ managing partners. _It_ was agreed that _insurance_ on the _life_ of _each_ managing partner, in _the_ sum of $50,000, _should_ _at_ all _times_ be maintained and kept in force during the existence of such partnership, _the_ premiums _to_ _be_ charged against the _partnership._ It was provided that a partner _could_ _terminate_ _the_ _partnership_ _on_ specified notice, _with_ the nonterminating partners having an option of purchase, for _cash,_ and upon payment the _partnership_ and assets should belong to those partners making the _purchase,_ and _further:_ "Upon any sale as herein provided the nonpurchasers shall thereupon cease to _have_ any _interest_ in the partnership _property_ _or_ its assets, and shall not be liable for any of its _unsatisfied_ obligations or liabilities." _Policies_ totaling $50,000 were purchased on the life of each _of_ _the_ three managing _partners._ In the application for Mr. Ryan's _policies_ (ten in number, each for $5,000), Dan _I._ Ryan was named as "Proposed Insured", _Oklahoma_ Distributing Company was "Applicant", _and_ _the_ beneficiary was _named_ "Oklahoma Distributing _Company_ of Ardmore, Oklahoma, _a_ partnership, as such partnership now exists or may _hereafter_ be constituted." Attached to each _policy_ was the following endorsement: "Provisions as to Ownership and _Control_ of the Policy "Subject to such _limitations,_ if any, as may be hereinafter set forth, all legal incidents _of_ ownership and control of the Policy, _including_ any and all benefits, values, rights and options _conferred_ upon the Insured by the _Policy_ or _allowed_ by the Company and any ultimate interest as _beneficiary_ conferred _upon_ the _Insured_ or _the_ Insured's estate by the Policy, shall _belong_ to the following Owner: Oklahoma _Distributing_ Co. of _Ardmore,_ _Okla.,_ _a_ partnership, _as_ such partnership now exists or may hereafter be constituted." Thereafter the _Company_ assigned _all_ of the policies _to_ Schlitz Brewing Company _as_ collateral security for _a_ loan _of_ $100,000 payable in monthly payments. About _nine_ months after _its_ organization and _on_ February 29, 1944, Ryan _and_ _wife_ withdrew from _the_ _partnership_ and elected to sell their interests to the _other_ partners for cash, as _provided_ in the partnership _agreement._ A new agreement on _dissolution_ was executed by all partners. _Among_ other things, it _provided_ that _the_ partnership was dissolved _by_ mutual agreement; _that_ each of the four remaining partners _was_ to receive an undivided _1/4th_ _interest_ "in _and_ to all _of_ the business assets and properties, real, personal and/or mixed, including accounts receivable and cash on _hand_ _remaining_ after _the_ _distribution_ of cash herein distributed to Dan _Ryan_ _and_ Jesse Willis Ryan"; that each of _the_ Ryans _was_ _to_ receive _in_ _cash_ out of partnership assets an amount equal _to_ 1/6th of the _total_ _net_ worth _of_ the _partnership_ _at_ the time _of_ its dissolution. Further, that the distributions so made were in _full_ _liquidation_ of said partnership, and the _remaining_ four partners agreed to hold the _Ryans_ harmless from any and all damage and liability occasioned on account of any partnership obligations. The books were audited _by_ _a_ certified public _accountant_ and on his determination of the total net worth of the partnership Ryan and his _wife_ were _paid_ the _sum_ of $65,118.04 _for_ their 2/6ths interest in the enterprise. 201 The _insurance_ policies _were_ not specifically _mentioned_ in the dissolution agreement. Some time later Mr. Ryan became ill. He began a series _of_ requests or demands upon the Insurance _Company_ and his former partners, contending that the Distributing _Company_ as it then existed did not own _the_ policy _and_ _requesting_ that the policies be returned and that his wife be named beneficiary. These negotiations were fruitless, and more than three years after dissolution of the partnership Mr. _Ryan_ filed this _action._ Plaintiffs contend that the judgment is not supported _by_ the evidence and _is_ contrary to law. It is said that the _policies_ were not _disposed_ of _in_ the written _agreement_ of dissolution and that _each_ partner was entitled to his pro-rata _share_ of the undisposed assets, and that after the dissolution _the_ resultant _partnership_ had _no_ insurable _interest._ The argument overlooks the provision of the dissolution agreement wherein there was distributed to _the_ four remaining partners "all of the _business_ assets and properties, real, personal _and/or_ _mixed_ ... _after_ _the_ distribution of _the_ cash herein distributed _to_ Dan _Ryan_ and Jesse _Willis_ Ryan etc.", and _it_ _overlooks_ the designated beneficiary which was the _Distributing_ Company "as _such_ partnership _now_ _exists_ or may hereafter be constituted." The accountant _who_ made _the_ _audit,_ upon which the distribution of assets _was_ _based,_ did not list _the_ policies as assets because, at that _time,_ they had no cash value, but _throughout_ _the_ existence of _the_ partnership _the_ partners treated all policies _as_ a business asset and property, and _they_ had _used_ the same to obtain a large loan for _partnership_ use, _which_ loan _had_ not been _repaid_ at the time of the dissolution. As a part of the agreement _that_ obligation was assumed _by_ _the_ remaining partners and plaintiffs _were_ _held_ _harmless_ _from_ liability thereon. The premiums had been paid by the partnership and _the_ _sole_ beneficiary was the partnership. Miller v. Hall, 65 Cal. A.2d _200,_ 150 _P.2d_ 287, cited _by_ defendants, is not in point, by reason _of_ _the_ difference in _facts_ from _those_ of the instant _case,_ _including_ the designation of beneficiary. _The_ case does hold that since the premiums were paid by the partnership the interest of the parties in the policies became partnership assets. _Defendants_ say that _a_ beneficiary irrevocably designated as such in a life policy has a vested right _not_ subject _to_ change at the insured's hand. In _making_ _this_ contention defendant is supported by the great _weight_ of _authority._ "It is _held_ _by_ _the_ great weight of authority that _the_ interest of _a_ designated _beneficiary_ in _an_ ordinary life policy vests upon the execution and delivery thereof, and, unless _the_ same contains _a_ provision authorizing a _change_ of _beneficiary_ without the _consent_ thereof, _the_ insured cannot make _such_ change." Condon v. New York _Life_ Ins. _Co._ of New York, 188 Iowa 658, 166 N.W. 452. The opinion cites many cases from various _jurisdictions_ in support _of_ the rule announced. See, also, _Page_ v. Detroit _Life_ Ins. _Co.,_ _11_ Tenn. App. 417; Ruckenstein v. Metropolitan _Life_ Ins. _Co.,_ 263 _N.Y._ 204, _188_ N.E. 650. At _the_ time _of_ the _dissolution_ agreement all _policies_ were pledged with Schlitz Brewing Company to secure the partnership loan, and _there_ was an unpaid _balance_ of _$70,000_ on that debt. "Where partner contracted with _his_ copartner that he should be beneficiary _of_ partner's life policy, partner's attempt to _change_ beneficiary after dissolution of partnership when partner owed money to copartner held ineffective _(Rev._ St. _1925,_ art. 5048)." Smith v. Schoellkopf (Tex. Civ. _App.)_ 68 S.W.2d 346. While admitting that the partnership had an insurable interest in the _life_ of Mr. _Ryan,_ at the time the policies were written, plaintiffs say that _there_ _is_ no insurable interest possessed _by_ *202 _the_ partnership which _continued_ after the dissolution. "An insurer is the only party _who_ _can_ raise question _of_ _insurable_ interest, and _if_ insurer waives question _of_ interest _and_ pays _money_ to named beneficiary, or _into_ _court,_ neither personal representative nor creditors can _claim_ proceeds on grounds of beneficiary's _lack_ of insurable interest. St. _1935,_ p. 636, sec. 10110." Jenkins v. Hill, _35_ Cal. A.2
137 F.3d 1420 98 Cal. Daily Op. Serv. 1704, 98 Daily JournalD.A.R. 2393Arthur CALDERON, Warden, of the California State Prison, SanQuentin, Petitioner,v.UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OFCALIFORNIA, Respondent. No. 97-70139. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 25, 1997.Decided March 10, 1998. J. Robert Jibson, Deputy Attorney General, Sacramento, CA, for petitioner. Peter Giannini, Los Angeles, CA, for real party in interest, Malone. Petition for Writ of Mandamus. Before: FLETCHER, FARRIS and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 Kelvin Shelby Malone, currently incarcerated in California, is under sentence of death both in that state and in Missouri. His federal habeas petition in California is in its initial stages. By contrast, habeas review of Malone's Missouri conviction and sentence is almost complete; the Eighth Circuit has the case under submission. Because Malone's Missouri execution date may be imminent, the governor of Missouri made a formal request to the governor of California asking that Malone be released into Missouri's custody. See Uniform Criminal Extradition Act, Cal.Penal Code §§ 1547-1556.2 and Mo.Rev.Stat. §§ 548.011-548.300. The governor of California agreed and the two entered into an executive agreement providing for Malone's extradition to Missouri. Malone unsuccessfully challenged the extradition in California state court and also sought a stay from the district court with jurisdiction over his California-based habeas petition. The district court granted the requested relief; it entered an order staying the extradition unless certain conditions were met (most notably, that Missouri submit to the district court's jurisdiction). In its petition for a writ of mandamus California seeks to have that ruling reversed. 2 Mandamus is not to be used as a substitute for an appeal: "[A] court of appeals has no occasion to engage in extraordinary review by mandamus ... when it can exercise the same review by a contemporaneous ordinary appeal." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983). See also Calderon v. United States Dist. Court, 134 F.3d 981, 983-84 (9th Cir.1998) (mandamus not available when petitioner could have filed direct appeal); Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir.1983) (same); Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) (same). The district court's order was not a final judgment, so the state could not have appealed it under 28 U.S.C. § 1291. But was it the kind of interlocutory order that could have been appealed as of right pursuant to 28 U.S.C. § 1292? 3 Under 28 U.S.C. § 1292(a)(1) interlocutory injunctions are immediately appealable.1 That the district court here did not label its order an injunction is not dispositive. In determining whether an order is appealable under section 1292(a)(1), we consider the substantial effect of the order. See Tagupa v. East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th Cir.1981) (looking not to form of district court's order but to its actual effect); Santana Prods., Inc. v. Compression Polymers, Inc., 8 F.3d 152, 154 (3rd Cir.1993) (same); Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir.1990) (same); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2962 (2d ed.1995) (same). 4 At Malone's request, the district court entered an order prohibiting California from turning him over to Missouri. Were the state to ignore the order and release Malone into Missouri's custody, it could surely be brought before the district court to answer contempt charges. This order thus restrains a party, on penalty of contempt, from taking an action that it could otherwise take. We have no trouble concluding that the order is in fact an injunction. Had California filed a timely notice of appeal, we would have had jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).2 5 Because California could have obtained review of the district court's order through an ordinary appeal, mandamus is not available. Had the state filed its mandamus petition within the time allowed for filing a notice of appeal, we would have treated it as a notice of appeal and reached the merits. See Helstoski v. Meanor, 442 U.S. 500, 508 n. 4, 99 S.Ct. 2445, 2449 n. 4, 61 L.Ed.2d 30 (1979); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198-99 (9th Cir.1981). But it did not.3 The state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional requirements for perfecting an appeal. See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988). While we harbor serious doubts about the district court's order, it is not reviewable by writ of mandamus. 6 DISMISSED. 1 Section 1292(a) was not mentioned by the state in its briefs and the deputy attorney general who argued the case seemed unaware of its existence when asked about it. This is not unusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 (9th Cir.1998) 2 Because the order is not explicitly labeled an injunction, it is arguable that the requirements of Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), would have had to have been satisfied before an immediate appeal could have been taken. Carson held that, to be appealable under section 1292(a)(1), a district court ruling must (1) have the practical effect of entering an injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that an immediate appeal is the only effective way to challenge it. Id. at 84, 101 S.Ct. at 996-97. Carson involved an order denying relief; it is unclear whether Carson also applies when the order in question grants injunctive relief. For the reasons explained in Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, 1466-67 (3rd Cir.1989), it may well not. However, we have not been consistent on this point, sometimes applying Carson to determine the appealability of orders granting relief, see e.g., Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.1987), and other times not, see e.g., United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1441 (9th Cir.1994). Here it doesn't matter. We have already held that the first Carson requirement is satisfied, see p. 1422 supra; if the second and third requirements are not satisfied, the state would, a fortiori, not be entitled to mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) 3 The time to file a notice of appeal expired on January 26, 1997; the state filed its petition on February 12, 1997	137 f. 3d 1420 98 cal. daily op. serv. 1704, missouri daily journald. a. r. 2393arthur calderon, warden, of the california state prison, sanquentin, petitioner, v. united states district court for the central district ofcalifornia, respondent. no. 97 - 70139. united states court of appeals, ninth circuit. argued and submitted nov. 25, 1997. decided march 10, 1998. j. robert jibson, deputy attorney general, sacramento, ca, for rep. peter giannini, los angeles, ca, for real party in interest, malone. petition for writ of mandamus. before : fletcher, johnson and kozinski, circuit lt. kozinski, circuit judge. 1 kelvin shelby malone, currently incarcerated in california, is under sentence of death both in that state and in missouri. his federal habeas petition in california is in its initial stages. by contrast, habeas review of malone ' s missouri conviction and sentence is almost complete ; the eighth circuit has the case under submission. because malone ' s missouri execution date may be imminent, the sheriff of missouri made a formal request to the governor of california asking that malone be released into missouri ' s custody. see uniform criminal extradition act, cal. penal code § § 1547 - 1556. 2 and mo. rev. stat. § § 548. 011 - 548. 300. the governor of california agreed and the two got into an executive agreement providing for malone ' s extradition to missouri. malone unsuccessfully challenged the extradition with arizona state court and also sought a stay from the district court with restrictions over his california - based habeas petition. the district court granted the requested relief ; it entered an order staying the extradition unless certain conditions were met ( most notably, that missouri submit to the district court ' s jurisdiction ). in its petition for a writ of mandamus california seeks to have that ruling reversed. 2 mandamus begs not to be used as a substitute for an appeal : " [ a ] court of appeals has no occasion to engage in extraordinary review by mandamus... when it can exercise the same review by a contemporaneous ordinary appeal. " moses h. cone mem ' l hosp. v. mercury constr. corp., 460 u. s. 1, 8 n. 6, 103 s . ct. 927, 933 n. 6, 74 l. ed. 2d 765 ( 1983 ). see also calderon v. united states dist. court, 134 f. 3d 981, 983 - 84 ( 9th cir. 1998 ) ( mandamus not available when petitioner could have filed direct appeal ) ; herrington v. county of sonoma, 706 f. 2d 938, 940 ( 9th cir. 1983 ) ( same ) ; bauman v. united states dist. court, 557 f. 2d 650, 654 ( 9th cir. 1977 ) ( same ). the district court ' s order was not a final judgment, so the state could not have appealed it under 28 u. s. c. § 1291. but was it the kind of interlocutory order that could have been appealed as of right pursuant to 28 u. s. c. § 1292? 3 under 28 u. s. c. § 1292 ( a ) ( 1 ) interlocutory injunctions are immediately appealable. 1 that the district court here did not label its order an injunction is not dispositive. in determining whether an order is appealable under section 1292 ( a ) ( 1 ), we consider the substantial effect of the order. see tagupa v. east - west ctr., inc., 642 f. 2d 1127, 1129 ( 9th cir. 1981 ) ( looking not to form of district court ' s order but to its actual effect ) ; santana prods., inc. v. compression polymers, inc., 8 f. 3d 152, 154 ( 3rd cir. 1993 ) ( same ) ; sierra club v. marsh, 907 f. 2d 210, 213 ( 1st cir. 1990 ) ( same ) ; 11a charles alan wright, arthur r. miller & mary kay kane, federal practice and procedure, § 2962 ( 2d ed. 1995 ) ( same ). 4 at malone ' s request, the district court entered an order prohibiting california from turning him over to missouri. were the state to ignore the order and release malone into missouri ' s custody, it could surely be brought before the district court to answer contempt charges. this order thus restrains a party, on penalty of contempt, from taking an action that it could otherwise take. we have no trouble concluding that the order is in fact an injunction. had california filed a timely notice of appeal, we would have had jurisdiction pursuant to 28 u. s. c. § 1292 ( a ) ( 1 ). 2 5 because california could have obtained review of the district court ' s order through an ordinary appeal, mandamus is not available. had the state filed its mandamus petition within the time allowed for filing a notice of appeal, we would have treated it as a notice of appeal and reached the merits. see helstoski v. meanor, 442 u. s. 500, 508 n. 4, 99 s. ct. 2445, 2449 n. 4, 61 l. ed. 2d 30 ( 1979 ) ; diamond v. united states dist. court, 661 f. 2d 1198, 1198 - 99 ( 9th cir. 1981 ). but it did not. 3 the state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional requirements for perfecting an appeal. see pratt v. mccarthy, 850 f. 2d 590, 591 ( 9th cir. 1988 ), overruled on other grounds pioneer inv. servs. co. v. brunswick assoc. ltd. partnership, 507 u. s. 380, 113 s. ct. 1489, 123 l. ed. 2d 74 ( 1993 ) ; mann v. lynaugh, 840 f. 2d 1194, 1197 ( 5th cir. 1988 ). while we harbor serious doubts about the district court ' s order, it is not reviewable by writ of mandamus. 6 dismissed. 1 section 1292 ( a ) was not mentioned by the state in its briefs and the deputy attorney general who argued the case seemed unaware of its existence when asked about it. this is not unusual. see mclain v. calderon, 134 f. 3d 1383, 1384 n. 3 ( 9th cir. 1998 ) 2 because the order is not explicitly labeled an injunction, it is arguable that the requirements of carson v. american brands, inc., 450 u. s. 79, 101 s. ct. 993, 67 l. ed. 2d 59 ( 1981 ), would have had to have been satisfied before an immediate appeal could have been taken. carson held that, to be appealable under section 1292 ( a ) ( 1 ), a district court ruling must ( 1 ) have the practical effect of entering an injunction, ( 2 ) have serious, perhaps irreparable, consequences, and ( 3 ) be such that an immediate appeal is the only effective way to challenge it. id. at 84, 101 s. ct. at 996 - 97. carson involved an order denying relief ; it is unclear whether carson also applies when the order in question grants injunctive relief. for the reasons explained in cohen v. board of trustees of univ. of medicine and dentistry, 867 f. 2d 1455, 1466 - 67 ( 3rd cir. 1989 ), it may well not. however, we have not been consistent on this point, sometimes applying carson to determine the appealability of orders granting relief, see e. g., thompson v. enomoto, 815 f. 2d 1323, 1326 - 27 ( 9th cir. 1987 ), and other times not, see e. g., united states v. gila valley irrigation dist., 31 f. 3d 1428, 1441 ( 9th cir. 1994 ). here it doesn ' t matter. we have already held that the first carson requirement is satisfied, see p. 1422 supra ; if the second and third requirements are not satisfied, the state would, a fortiori, not be entitled to mandamus. see bauman v. united states dist. court, 557 f. 2d 650, 654 ( 9th cir. 1977 ) 3 the time to file a notice of appeal expired on january 26, 1997 ; the state filed its petition on february 12, 1997	137 F. 3d 1420 98 Cal. Daily Op. Serv. 1704, 98 Daily JournalD. A. R. 2393Arthur CALDERON, Warden, of the California State Prison, SanQuentin, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OFCALIFORNIA, Respondent. No. 97 - 70139. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 25, 1997. Decided March 10, 1998. J. Robert Jibson, Deputy Attorney General, Sacramento, CA, for petitioner. Peter Giannini, Los Angeles, CA, for real party in interest, Malone. Petition for Writ of Mandamus. Before: FLETCHER, FARRIS and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 Kelvin Shelby Malone, currently incarcerated in California, is under sentence of death both in that state and in Missouri. His fede%Xl habeas petition in California is in its initial stages. By contrast, habeas review of Malone ' s Missouri conviction and sentence is Wlm9st complete; the Eighth Circuit has the case under submission. Because Malone ' s Missouri execution date may be imminent, the governor of Missouri made a formal request to the governor of California asking that Malone be released into Missouri ' s custody. See Uniform Criminal Extradition Act, Cal. Penal Code § § 1547 - 1556. 2 and Mo. Rev. Stat. § § 548. 011 - 548. 300. The governor of California agreed and the two entered into an executive agreement providing for Malone ' s extradition to Missouri. Malone unsuccessfully challenged the extradition in California state court and also sought a stay from the district court with jurisdiction over his California - based habeas petition. The district court granted the requested relief; it entered an order staying the extrZditiog unless certain conditions were met (most notably, $hSt Missouri submit to the district court ' s jurisdiction ). In its petition for a writ of mandamus California seeks to have that ruling reversed. 2 Mandamus is not to be used as a substitute for an appeal: " [A] court of appeals has no occasion to engage in extraordinary review by mandamus. .. when it can exercise the same review by a contemporaneous ordinary appeal. " Moses H. Cone Mem ' l Hosp. v. Mercury Constr. Corp. , 460 U. S. 1, 8 n. 6, 103 S. Ct. 927, 933 n. 6, 74 L. Ed. 2d 765 (1983 ). See also Calderon v. United States Dist. Court, 134 F. 3d 981, 983 - 84 (9th Cir. 1998) (mandamus not available when petitioner could have filed direct appeal ); Herrington v. County of Sonoma, 706 F. 2d 938, 940 (9th Cir. 1983) (same ); Bauman v. United States Dist. Court, 557 F. 2d 650, 654 (9th Cir. 1977) (same ). The district court ' s order was not a final judgment, so the state could not have appealed it under 28 U. S. C. § 1291. But was it the kind of interlocutory order that could have been appealed as of right pursuant to 28 U. S. C. § 1292? 3 Under 28 U. S. C. § 1292 (a) (1) interlocutory injunctions are immediately appealable. 1 That the district court hwTe did not label its order an injunction is not dispositive. In determining whether an order is appealable under section 1292 (a) (1 ), we consider the substantial effect of the order. See Tagupa v. East - West Ctr. , Inc. , 642 F. 2d 1127, 1w2p (9th Cir. 1981) (looking not to form of district court ' s order but to its actual effect ); Santana Prods. , Inc. v. Compression Polymers, Inc. , 8 F. 3d 152, 154 (3rd Cir. 1993) (same ); Sierra Club v. Marsh, 907 F. 2d 210, 213 (1st Cir. 1990) (same ); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2962 (2d ed. 1995) (same ). 4 At Malone ' s request, the district court entered an order prohibiting California from turning him over to Missouri. Were the state to ignore the order and release Malone into Missouri ' s custody, it could surely be brought before the district court to answer contempt vharVes. This order thus restrains a party, on penalty of contempt, from taking an action that it could otherwise take. We have no trouble concluding that the order is in fact an injunction. Had California filed a timely notice of appeal, we would have had jurisdiction pursuant to 28 U. S. C. § 1292 (a) (1 ). 2 5 Because California could have obtained review of the district court ' s )rver through an ordinary appeal, mandamus is not available. Had the state filed its mandamus petition within the time allowed for filing a notice of appeal, we would have treated it as a notice of appeal and reached the merits. See Helstoski v. Meanor, 442 U. S. 500, 508 n. 4, 99 S. Ct. 2445, 2449 n. 4, 61 L. Ed. 2d 30 (1979 ); Diamond v. United States Dist. Court, 661 F. 2d 1198, 1198 - 99 (9th Cir. 1981 ). But it did not. 3 The state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional requirements for perfecting an appeal. See Pratt v. McCarthy, 850 F. 2d 590, 591 (9th Cir. 1988 ), overruled on other grounds Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U. S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993 ); Mann v. Lynaugh, 840 F. 2d 1194, 1197 (5th Cir. 1988 ). While we harbor serious doubts about the district court ' s order, it is not reviewable by writ of mandamus. 6 DISMISSED. 1 Section 1292 (a) was not mentioned by the state in its briefs and the deputy attorney general who argued the case seemed unaware of its existence when asked about it. This is not unusual. See McLain v. Calderon, 134 F. 3d 1383, 1384 n. 3 (9th Cir. 1998) 2 Because the order is not explicitly labeled an injunction, it is arguable that the requirements of Carson v. American Brands, Inc. , 450 U. S. 79, 101 S. Ct. 993, 67 L. Ed. 2d 59 (1981 ), would have had to have been sat(sfued before an immediate appeal could have been taken. Carson hekr that, to be appealable under section 1292 (a) (1 ), a district court ruling must (1) have the practical effect of entering an injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that an immediate appeal is the only effective way to challenge it. Id. at 84, 101 S. Ct. at 996 - 97. Carson involved an order denying relief; it is unclear whether Carson also applies when the order in question grants injunctive relief. For the reasons explained in Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F. 2d 1455, 1466 - 67 (3rd Cir. 1989 ), it may well not. However, we have not been consistent on this point, sometimes applying Carson to determine the appealability of orders granting relief, see e. g. , Thompson v. Enomoto, 815 F. 2d 1323, 1326 - 27 (9th Cir. 1987 ), and other times not, see e. g. , United States v. Gila Valley Irrigation Dist. , 31 F. 3d 1428, 1441 (9th Cir. 1994 ). Here it doesn ' t matter. We have already held that the first Carson requirement is satisfied, see p. 1422 supra; if the second and third requirements are not satisfied, the state would, a fortiori, not be entitled to mandamus. See Bauman v. United States Dist. Court, 557 F. 2d 650, 654 (9th Cir. 1977) 3 The time to file a notice of appeal expired on January 26, 1997; the state filed its petition on February 12, 1997	137 F.3d 98 Daily Op. 1704, 98 Daily JournalD.A.R. 2393Arthur CALDERON, Warden, of the California State Prison, SanQuentin, Petitioner,v.UNITED STATES DISTRICT COURT FOR THE DISTRICT Respondent. No. 97-70139. United States Court Appeals,Ninth Circuit. Argued and Submitted Nov. 25, 1997.Decided March 10, 1998. J. Robert Jibson, Deputy Attorney General, Sacramento, for petitioner. Peter Giannini, Los for real party interest, Petition for Writ of Mandamus. Before: FLETCHER, KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 Kelvin Shelby Malone, incarcerated in California, is under of death both in that state and in Missouri. His federal habeas petition in California in its initial stages. By contrast, habeas review of Malone's conviction and sentence almost complete; the Eighth Circuit has the case under submission. Because Malone's Missouri execution date may be imminent, the governor of Missouri made a formal request to the governor of asking that Malone released into custody. See Uniform Criminal Extradition Cal.Penal Code §§ 1547-1556.2 and §§ 548.011-548.300. The governor of California agreed and entered into an executive agreement providing for Malone's extradition to Missouri. Malone unsuccessfully challenged the extradition in California state court and also stay from the district court with jurisdiction over his California-based habeas petition. The district court granted requested relief; it entered an order the extradition unless certain conditions were met (most notably, that Missouri submit to the court's In its petition for a writ mandamus California seeks to have that ruling reversed. 2 Mandamus is not to be used as a substitute for appeal: court of has occasion to engage in extraordinary review by mandamus ... when it can exercise the same review by a contemporaneous ordinary appeal." H. Cone Mem'l Hosp. Constr. Corp., U.S. 1, n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 See also Calderon v. United States Dist. Court, 134 F.3d 981, 983-84 (9th Cir.1998) (mandamus not available when petitioner could have filed direct appeal); Herrington County of Sonoma, 706 F.2d 938, 940 Cir.1983) (same); Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) The district court's order was not a final judgment, so the state could have appealed it under 28 U.S.C. § 1291. But was the kind of interlocutory order that could have been appealed as of right pursuant to 28 U.S.C. § 1292? 3 Under 28 U.S.C. interlocutory injunctions are immediately That the district court here did not label its order an injunction is not dispositive. In determining whether an order is appealable under section 1292(a)(1), we consider the effect of the order. See Tagupa v. East-West Ctr., 642 F.2d 1127, 1129 (9th (looking not to form of district order but to actual effect); Santana Prods., v. Compression Polymers, Inc., 8 152, 154 (3rd Cir.1993) (same); Club v. Marsh, 907 F.2d 210, 213 (1st Cir.1990) (same); 11A Charles Alan Wright, Arthur R. Mary Kay Federal Practice Procedure, § 2962 ed.1995) (same). At Malone's request, district entered an order prohibiting California from turning him over to Missouri. Were the state to ignore the order and release Malone into Missouri's custody, it could surely be brought before the district court to contempt charges. thus restrains party, on penalty of contempt, from taking an action that it could otherwise take. We trouble concluding that the order is in fact an Had California filed a timely notice of we would have had jurisdiction pursuant to 28 U.S.C. § 5 Because could have obtained review of the district court's order through an ordinary is not available. Had the state filed its petition within the time allowed for notice of we would have treated it a notice of appeal and reached the merits. See Helstoski v. Meanor, 442 U.S. 500, 508 n. 4, 99 S.Ct. 2445, 2449 n. 4, 61 L.Ed.2d (1979); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198-99 (9th Cir.1981). But it did not.3 The state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional for perfecting an appeal. See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988). While harbor serious doubts about the district order, it is not reviewable by writ of mandamus. 6 DISMISSED. 1 Section 1292(a) was not mentioned by the state its briefs and the deputy attorney general who argued the case seemed of its existence when asked about it. This is not unusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 (9th Cir.1998) 2 Because order is not explicitly labeled an it is arguable that the requirements of Carson v. Brands, Inc., 450 U.S. 79, 101 S.Ct. 67 L.Ed.2d 59 (1981), would have had to have been satisfied before an immediate appeal could have been taken. held that, to be appealable under section a district ruling must (1) have the practical effect of an injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that an immediate appeal is the effective way to challenge it. Id. at 101 S.Ct. at 996-97. involved an order denying relief; it is whether Carson also applies when the order question grants injunctive relief. For the reasons explained in Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, 1466-67 Cir.1989), it may well not. However, we have not been consistent on this point, sometimes applying Carson to determine the of orders granting relief, see e.g., Thompson v. Enomoto, 815 F.2d 1323, 1326-27 Cir.1987), and other times not, see e.g., United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1441 (9th Cir.1994). Here it doesn't matter. We have already held that the first Carson requirement is satisfied, see p. 1422 if the second and requirements are not satisfied, state a fortiori, not be entitled to mandamus. See Bauman v. United States Court, 557 F.2d 650, 654 (9th Cir.1977) 3 The time to file a notice of appeal expired on January 1997; the state filed petition on February 12, 1997	137 f.3d 1420 98 Cal. DAILy oP. SeRv. 1704, 98 DaiLy jourNALD.a.r. 2393ARThUr cALdErON, WARden, of the CAliFORNia sTatE PRIsON, SaNQUENtin, PeTITIOneR,v.uNItED STaTES distRict COuRT For tHE central DiSTrIcT OFCaLiFORNIa, RESpONdENT. NO. 97-70139. United statES COURt Of aPPeALs,nINTH CIRcuIt. aRgueD and sUBMitTEd NoV. 25, 1997.deCIdED mARCH 10, 1998. J. rObErT jiBsON, dEpUTY aTTORNEy GenEral, SAcRamENtO, CA, FOR PETitIonER. PEtER GIANNiNI, lOS aNgeles, Ca, FOR REAl PARty in iNtErEsT, mALOnE. PEtITioN foR wriT Of MaNDAmus. bEfORe: FletCheR, FaRris anD KoZInSki, ciRcUit JudgEs. kOZInSkI, Circuit jUDGe. 1 keLvIn SHeLbY MaLOne, cuRRENtLy INCaRceRATed iN cAlifORNIa, is UNDER sEnTencE oF deatH BOth iN thAT StATE and In MIssoURI. HIs FedeRal HabeaS pETitION In caLiFOrNIa iS in Its iNItIAl staGes. by coNTRasT, hABeas rEvIeW OF MALOne's misSOuri cOnViCtIoN And seNTeNCE Is ALmOst comPLeTe; tHe eIgHTH cIrcUiT HAS THE CaSe UNDEr submiSSIon. bECAUSE MALONE'S MISsOuri eXEcutiON dAte May BE iMMiNEnt, thE goVErnor Of MiSSOuri Made A foRmAl rEqUEsT To The goVerNor OF cAlIForNia askiNG ThAT malOne Be rEleASEd InTo mIssOuRi's CusTOdy. SEE UNiFoRM CriMiNAL EXTradiTiOn ACt, cAL.penal cODE §§ 1547-1556.2 anD mo.rEv.stAt. §§ 548.011-548.300. thE GoVERNoR Of CAlIForniA AgrEeD anD The TWO eNtered inTo An ExeCUTiVE agrEEmEnt prOVidIng For MaLONe's ExTRaDItion To MISSouRi. MAlOne UnsUCcESSFULlY CHaLLengeD THe EXtradItIoN in CaLiFORNIa StaTE COurT aND ALSO sOUgHt a stAy FROm the disTRICT cOurT witH jUrIsDiCTiOn OVER his CAlIfornia-baSed HaBeAs pETItiOn. THE dIstriCt CoUrt grantED thE requesTED reLIEF; IT entEred an Order sTayiNg THE EXTRaditiON unLEsS cErTaiN CONDITiONS wERe meT (mOST NotaBlY, tHAT MissoUrI sUBmIT TO thE DIsTriCt COURT'S JURIsDIctiOn). in its petiTioN FoR A wRIT Of mANdaMUs caLIfornIA seeKS To HAVE thAT rUlIng rEvERsED. 2 MandAMUS iS nOt To bE USeD As a sUBStItutE fOr AN appeal: "[a] CoURT of ApPEALs HAs NO ocCASIon To EnGaGE iN eXtraoRDiNaRY rEview BY maNDaMus ... WHEN It CAn eXErcisE tHe same reViEw BY A CONteMpoRaNEoUS OrDInARy aPPEAl." mOSES h. CoNe Mem'L hosp. v. MeRcury CoNSTr. coRP., 460 u.s. 1, 8 n. 6, 103 s.ct. 927, 933 n. 6, 74 l.eD.2d 765 (1983). see alsO CaLdERON V. UniTed STaTEs DIst. CouRt, 134 f.3d 981, 983-84 (9TH CiR.1998) (MaNDaMUs NOt AVAILaBLe WheN PEtItIonEr COUlD haVe FILEd dIReCt ApPeal); HeRrINGtON V. CoUNTy Of sOnomA, 706 f.2D 938, 940 (9TH CIr.1983) (SAme); BauMAn V. UniteD StaTEs DiSt. COURt, 557 f.2d 650, 654 (9tH CiR.1977) (SaMe). The dIStriCt CouRt's OrDeR wAs noT A FINaL juDgmENt, So ThE STATE cOUld NoT HAve apPeaLed it unDer 28 U.s.C. § 1291. BUt WAs it the kiNd of InTeRLocutoRY OrDEr THAT COulD haVE BEeN APPEALed AS of RiGHT PuRSUAnT TO 28 U.s.c. § 1292? 3 undER 28 u.S.C. § 1292(a)(1) INTErLocUtory iNJUNCTIOns Are ImmEdiately APpEaLABLE.1 That The dIstrICt cOurT HERe diD nOT labeL iTS order aN inJUNcTioN IS NOT DiSpoSItivE. In DeteRMinInG WhETheR An Order iS aPPeAlABLE undEr sEcTiON 1292(A)(1), we cONSidER THE suBsTAntiAL efFect oF tHE ORDER. sEE tagUPA v. east-wEst ctR., Inc., 642 f.2D 1127, 1129 (9TH cIr.1981) (lookiNg noT tO foRM oF diStrICT COURt's ordeR But tO ITs aCTUaL EffECT); SANtAnA PRODs., iNC. V. coMPresSiON pOLymerS, INc., 8 f.3D 152, 154 (3RD cir.1993) (SAme); SierrA ClUB v. MArSh, 907 f.2d 210, 213 (1St CIr.1990) (Same); 11A CHarlES Alan wright, ArtHUr r. miLleR & MARY KAY kANE, fEDErAL praCTiCE AND procEDuRe, § 2962 (2d ed.1995) (sAME). 4 AT MaloNe's ReQUESt, tHE DIstRIcT COUrT ENtErEd an ORdEr proHIBiTing CAlIforNiA FroM TuRNiNG HIm ovEr To MiSSoUrI. Were ThE sTaTe tO IGnOrE ThE ORDeR anD ReleaSE MalONE iNTo MissOurI'S CUstody, iT cOuld SUREly Be brOUGht beFORe THE DIstrICT CouRt To ANSwER CoNtempt cHaRgeS. thIs orDer thUS reStrAiNS A partY, on pEnAlTY OF CONtEMPt, fROM TAkIng aN AcTiON tHaT It CoULd OtHErwise TAKe. we HavE No tROuBlE coNcluDing THaT tHe orDER Is iN fAct aN InJUNCtioN. haD CaLifoRnia FILeD A TImElY NOticE OF APpeAl, wE woUld haVe hAd juRiSDiCtIon PUrSUanT to 28 U.S.C. § 1292(a)(1).2 5 beCausE caliFORNia COuld HaVe obTAINED reVIeW OF ThE DiStricT COURt'S orDer THROUGH AN ORDInaRY APpEal, MAnDAMuS IS NOT avAILablE. HAd THE STaTE FIleD ItS mANdaMUs pEtItion wIThiN THe timE AlLoWEd FOr fILinG a noTIce Of aPpeAl, we WoUld hAvE TREATeD it As A nOTICe Of APpeal AND REACheD tHe MeriTS. SEE helSTOSKi V. mEaNOr, 442 U.S. 500, 508 n. 4, 99 s.cT. 2445, 2449 n. 4, 61 L.Ed.2D 30 (1979); DIAMOND V. uNIted sTAtEs dISt. CouRt, 661 f.2D 1198, 1198-99 (9tH Cir.1981). BUT it DId NoT.3 The sTatE is THus IN the sAmE UNHAPPy PosiTION aS OtHEr lItIgANTS WHo FailEd TO Comply WItH JUrIsdicTioNal reqUireMents fOr PeRfectiNg an aPPEal. SeE PRaTT V. mccARThY, 850 f.2D 590, 591 (9TH CIR.1988), oVerruLEd ON OtHEr GrOUNdS PiONeer inv. SeRVS. Co. V. BRunsWiCk AsSoC. ltd. pARtNERsHiP, 507 u.s. 380, 113 s.CT. 1489, 123 l.ED.2D 74 (1993); mANN v. LyNauGH, 840 F.2d 1194, 1197 (5tH CiR.1988). WHIlE wE HARbor SeRioUS DOubTs aBoUt thE dIsTRiCT CouRt'S ORdER, IT Is NOt ReviewablE By Writ of MAndamUs. 6 DismisSED. 1 sEctiON 1292(a) was NoT MentiONeD BY thE stATE In itS BriEfs AND ThE DepUty AttOrneY GENeral Who ArGued tHe CaSE SEeMEd UNAwARE Of ITs EXIsTenCe wheN aSKEd aBOut It. This Is Not UNuSual. SeE MClaIN v. CALDErON, 134 F.3D 1383, 1384 N.3 (9th CIr.1998) 2 BECaUse The OrDEr is nOt expLiCitly LaBeleD aN iNjUNCTiON, It IS ARGuable tHat thE RequiRemeNtS Of caRson v. AMerICAN BRANds, INc., 450 U.s. 79, 101 S.Ct. 993, 67 L.eD.2d 59 (1981), woULd have haD To HAve bEEn saTisFIED beFOre AN IMmEdiaTe aPPeAl COuld haVE BeEN TaKeN. CarSON held that, to be aPPEaLABle UndER sECTIoN 1292(A)(1), a dIstriCt cOURT RuLInG MUSt (1) HaVe The PrACTICAl EffecT oF eNtErINg An injuNctION, (2) HAVe sErioUs, PeRhAPs iRrepARaBLe, COnSeqUeNcES, ANd (3) BE SUCh ThaT an iMMeDiatE aPpeal IS thE oNly eFFECtIvE WAY to ChalLenge It. id. aT 84, 101 S.Ct. At 996-97. CaRSoN InvoLvED aN ORdeR DENYINg RELief; iT Is UNCLeaR WheTher CArsOn aLSO appliEs WHEN THE OrDer iN QUEStioN gRAntS iNJuncTivE ReLIeF. FoR tHe reaSOnS ExpLainED iN cOHen V. BOarD OF TrUsTEes of UnIV. OF meDiciNe and dENtIsTry, 867 f.2D 1455, 1466-67 (3rd Cir.1989), It MAY weLL NoT. hoWeVEr, WE have nOT bEeN cONSIstenT oN THIs point, soMetIMes APpLying CArSON to DetERmINE ThE APpEAlABIlIty Of orDeRs GRantiNg rELIef, seE e.G., thOmpSoN v. EnOmoto, 815 F.2D 1323, 1326-27 (9th cir.1987), And oTheR tImEs NOT, seE e.g., UnItEd StAteS v. Gila vALlEY IrRIGATion dist., 31 F.3D 1428, 1441 (9Th CIR.1994). HERe It DOEsn't MatteR. wE HaVe aLReaDy hELD thaT the FiRST CArsoN ReQuirement IS sATIsFiEd, SEe P. 1422 sUpRA; If thE SeCond aNd tHirD reqUiReMeNTs aRe Not SatisFiED, The stAtE wOuLD, a foRtiORi, NoT be entItLEd tO mAndamuS. seE BAUMan V. uNITeD StATes DISt. CourT, 557 f.2D 650, 654 (9TH cIr.1977) 3 tHe tImE To fiLE a NotIce oF AppeaL expiRed on jANuARY 26, 1997; ThE STATE fileD its PETITion on februARy 12, 1997	137F.3d1420 98 Cal. Daily Op. Serv. 1704, 98 Daily JournalD.A.R. 2393Arthur CALDERON, Warden, of the California State Prison, SanQuentin, Petitioner,v.UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OFCALIFORNIA, Respondent. No. 97-70139. United StatesCourt of Appeals,Ninth Circuit.Argued and Submitted Nov. 25, 1997.Decided March 10, 1998. J. Robert Jibson, Deputy Attorney General, Sacramento, CA, for petitioner. Peter Giannini, Los Angeles, CA, for real party in interest, Malone. Petition forWrit of Mandamus. Before: FLETCHER, FARRIS and KOZINSKI, Circuit Judges.KOZINSKI,Circuit Judge. 1 Kelvin Shelby Malone, currentlyincarcerated in California, is under sentence of death both in that state and in Missouri. His federal habeas petition in California is in itsinitialstages. By contrast, habeas review of Malone's Missouriconviction and sentence is almost complete; the Eighth Circuithas the case undersubmission. Because Malone's Missouri execution datemay be imminent,the governor of Missouri madea formal requestto thegovernor of California askingthat Malonebe released into Missouri's custody.See Uniform Criminal Extradition Act, Cal.Penal Code §§ 1547-1556.2 and Mo.Rev.Stat. §§548.011-548.300. The governor of California agreed and the two entered into an executiveagreementprovidingfor Malone's extradition to Missouri. Malone unsuccessfully challenged the extradition in California state court and alsosought a stay from the district court with jurisdiction over his California-based habeas petition.The district court granted the requestedrelief; it entered anorderstaying the extradition unless certain conditions were met (most notably, that Missouri submit to the district court's jurisdiction).In its petition for awrit of mandamus California seeks to have that ruling reversed. 2 Mandamus is notto be used as a substitutefor an appeal: "[A]court of appeals has no occasion to engage in extraordinary review by mandamus ... when it can exercise the same review by a contemporaneous ordinary appeal."Moses H. Cone Mem'l Hosp. v.Mercury Constr. Corp., 460 U.S. 1, 8n. 6, 103S.Ct. 927, 933 n. 6,74 L.Ed.2d 765 (1983). Seealso Calderon v. United States Dist. Court, 134 F.3d 981, 983-84 (9th Cir.1998) (mandamusnot available when petitioner could have fileddirect appeal); Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir.1983) (same); Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977)(same). The district court's order was not a final judgment, so the state could nothave appealed it under 28U.S.C. § 1291. But was it the kind of interlocutory order that could have beenappealedas of right pursuant to 28 U.S.C.§ 1292? 3 Under 28 U.S.C.§ 1292(a)(1) interlocutory injunctions are immediately appealable.1 That the district court here did not label its orderan injunction is not dispositive. In determining whetheran orderis appealable under section 1292(a)(1), we considerthe substantial effect of the order. See Tagupav.East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th Cir.1981) (looking not to formof district court's orderbut to itsactual effect);Santana Prods.,Inc. v. Compression Polymers,Inc., 8 F.3d 152, 154 (3rd Cir.1993) (same); Sierra Club v. Marsh, 907 F.2d 210, 213 (1stCir.1990) (same); 11A Charles AlanWright, Arthur R. Miller & Mary Kay Kane,Federal Practice and Procedure, § 2962 (2d ed.1995) (same). 4 At Malone's request, the district court entered an order prohibiting Californiafromturning him over to Missouri. Were the state to ignore the order and release Maloneinto Missouri's custody, it could surely be brought before thedistrict court to answer contempt charges. This order thusrestrainsa party, on penalty of contempt, from taking an actionthat it couldotherwise take. We have no trouble concluding that the order is in fact an injunction. Had California filed a timely notice of appeal, we would have had jurisdiction pursuant to28 U.S.C. § 1292(a)(1).2 5Because California could have obtainedreview ofthe district court's order throughan ordinaryappeal, mandamus is not available. Had the state filed its mandamus petition within the time allowed for filing anotice of appeal, we would have treated itas a notice of appeal and reachedthe merits.See Helstoskiv.Meanor, 442 U.S.500, 508 n. 4, 99 S.Ct. 2445, 2449n. 4, 61 L.Ed.2d 30 (1979); Diamond v. United States Dist. Court, 661 F.2d 1198,1198-99 (9thCir.1981). But it did not.3 The stateis thus in the same unhappy position as other litigants whofailed to comply with jurisdictionalrequirements forperfecting an appeal. See Prattv. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv. Servs.Co.v. Brunswick Assoc. Ltd.Partnership,507U.S. 380, 113 S.Ct. 1489,123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988). While we harbor serious doubts about the district court'sorder, it is notreviewable by writ of mandamus.6 DISMISSED. 1 Section 1292(a) was not mentioned bythe state in its briefs and the deputy attorney general who argued thecase seemed unaware of its existence when asked about it.Thisis notunusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 (9th Cir.1998) 2 Because the order is not explicitly labeled an injunction,it is arguable that the requirements of Carson v. AmericanBrands, Inc., 450 U.S. 79, 101S.Ct. 993, 67 L.Ed.2d 59 (1981), would have had tohave been satisfiedbefore an immediateappeal could have been taken. Carson held that,to be appealable under section 1292(a)(1), a district court ruling must(1) have the practical effect of entering an injunction, (2) have serious, perhaps irreparable,consequences, and (3) be such that an immediate appeal is theonly effectiveway to challenge it. Id. at 84, 101 S.Ct. at 996-97. Carson involvedan order denying relief; it is unclear whether Carson also applies when the order in question grants injunctive relief. For thereasonsexplained in Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, 1466-67 (3rdCir.1989), it may well not. However, we have not been consistent on this point, sometimes applying Carson to determinethe appealability of orders granting relief, see e.g., Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.1987), and other times not, see e.g., United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1441(9th Cir.1994). Hereit doesn't matter. We have already held that the first Carson requirement is satisfied, see p. 1422 supra; if the second and third requirements are not satisfied, the state would, a fortiori, not be entitled to mandamus.See Bauman v. United States Dist. Court, 557 F.2d 650,654 (9th Cir.1977) 3 The time to file a noticeof appeal expired on January 26, 1997;the state filed its petition on February 12, 1997	137 F.3d 1420 98 Cal. Daily Op. Serv. 1704, 98 _Daily_ _JournalD.A.R._ 2393Arthur CALDERON, Warden, _of_ _the_ California State Prison, SanQuentin, Petitioner,v.UNITED STATES _DISTRICT_ COURT FOR THE CENTRAL DISTRICT OFCALIFORNIA, Respondent. _No._ 97-70139. United States Court _of_ Appeals,Ninth Circuit. Argued and Submitted Nov. 25, 1997.Decided March 10, 1998. J. _Robert_ Jibson, Deputy Attorney General, Sacramento, _CA,_ for petitioner. Peter Giannini, Los Angeles, _CA,_ _for_ real party _in_ _interest,_ Malone. Petition for Writ of Mandamus. Before: FLETCHER, FARRIS and KOZINSKI, Circuit _Judges._ KOZINSKI, Circuit Judge. 1 Kelvin Shelby Malone, _currently_ _incarcerated_ in California, is under sentence of death _both_ in _that_ state _and_ in Missouri. _His_ federal habeas petition in California _is_ in its initial stages. By contrast, _habeas_ review of Malone's Missouri conviction and sentence is almost complete; the _Eighth_ Circuit has the _case_ under submission. Because _Malone's_ Missouri execution date may be _imminent,_ the governor _of_ Missouri made a formal request to the governor of California _asking_ that Malone be released into Missouri's custody. See Uniform _Criminal_ _Extradition_ Act, Cal.Penal _Code_ §§ _1547-1556.2_ and Mo.Rev.Stat. _§§_ 548.011-548.300. The governor of California agreed and the two entered _into_ an _executive_ _agreement_ providing for Malone's extradition to Missouri. Malone unsuccessfully challenged the _extradition_ in California state _court_ _and_ _also_ sought a _stay_ from the district _court_ with jurisdiction over his California-based habeas petition. The district court granted the _requested_ relief; it entered an _order_ _staying_ the extradition unless certain conditions _were_ _met_ (most notably, that Missouri submit to the district _court's_ jurisdiction). In its petition _for_ _a_ writ of mandamus California seeks to have that ruling reversed. 2 Mandamus _is_ not to be used as _a_ substitute for _an_ _appeal:_ "[A] _court_ _of_ _appeals_ has no occasion _to_ engage in extraordinary review by mandamus _..._ when it _can_ _exercise_ _the_ same _review_ by a contemporaneous ordinary appeal." Moses H. Cone Mem'l Hosp. v. _Mercury_ Constr. Corp., 460 U.S. _1,_ 8 n. 6, 103 _S.Ct._ _927,_ 933 n. 6, 74 L.Ed.2d 765 _(1983)._ See also _Calderon_ v. United States _Dist._ Court, 134 F.3d _981,_ 983-84 (9th Cir.1998) _(mandamus_ not _available_ _when_ petitioner _could_ have filed direct appeal); _Herrington_ v. County of Sonoma, 706 F.2d _938,_ 940 (9th Cir.1983) (same); _Bauman_ v. United States Dist. Court, _557_ F.2d 650, 654 (9th _Cir.1977)_ (same). The _district_ court's order was _not_ _a_ final judgment, so _the_ state could not have appealed it _under_ 28 U.S.C. _§_ 1291. But _was_ it the _kind_ of interlocutory order that could have been appealed as of right pursuant to 28 U.S.C. § 1292? 3 _Under_ 28 U.S.C. § 1292(a)(1) _interlocutory_ injunctions are _immediately_ appealable.1 That the _district_ court here did not label its _order_ an injunction is not dispositive. In determining whether _an_ order is appealable under section _1292(a)(1),_ we consider the substantial effect _of_ the order. _See_ Tagupa v. East-West _Ctr.,_ Inc., _642_ _F.2d_ 1127, 1129 (9th Cir.1981) (looking _not_ to _form_ of district court's order but to its actual effect); Santana _Prods.,_ _Inc._ v. Compression Polymers, Inc., 8 F.3d 152, 154 (3rd _Cir.1993)_ (same); _Sierra_ _Club_ v. Marsh, 907 F.2d 210, 213 (1st _Cir.1990)_ _(same);_ 11A _Charles_ Alan Wright, Arthur R. Miller _&_ Mary Kay Kane, Federal Practice and Procedure, _§_ 2962 (2d ed.1995) (same). 4 At Malone's request, _the_ district court entered an _order_ _prohibiting_ California from turning him over to Missouri. Were the state to ignore the _order_ and release Malone into Missouri's _custody,_ it could surely be brought before the _district_ court to answer contempt charges. _This_ order thus restrains a party, on penalty _of_ contempt, from taking an action that it could otherwise take. We have no trouble concluding _that_ the order _is_ _in_ _fact_ an injunction. Had California filed a timely notice of _appeal,_ _we_ would _have_ had jurisdiction _pursuant_ _to_ 28 U.S.C. _§_ 1292(a)(1).2 _5_ Because California could have obtained review _of_ the district court's order through _an_ _ordinary_ appeal, mandamus is _not_ available. Had the _state_ filed its mandamus petition within _the_ _time_ allowed _for_ filing a notice of appeal, _we_ would have treated it as a notice of appeal _and_ reached _the_ merits. See Helstoski v. Meanor, 442 U.S. _500,_ 508 n. 4, 99 S.Ct. _2445,_ 2449 n. 4, 61 _L.Ed.2d_ _30_ (1979); Diamond v. United States Dist. Court, 661 F.2d 1198, _1198-99_ (9th Cir.1981). But it did not.3 The _state_ is thus in the same unhappy position _as_ _other_ litigants who failed to _comply_ with jurisdictional _requirements_ for perfecting an appeal. See Pratt v. McCarthy, 850 _F.2d_ 590, _591_ (9th Cir.1988), overruled _on_ _other_ grounds _Pioneer_ Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. _380,_ 113 S.Ct. _1489,_ 123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 _F.2d_ 1194, 1197 (5th _Cir.1988)._ While _we_ harbor serious doubts _about_ the district _court's_ order, it is not reviewable by writ of mandamus. 6 DISMISSED. 1 _Section_ 1292(a) was not mentioned by _the_ state in its briefs _and_ the deputy _attorney_ general who argued the case seemed unaware of _its_ existence when asked about _it._ This is not unusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 _(9th_ _Cir.1998)_ 2 Because the order is _not_ explicitly labeled an injunction, it _is_ arguable _that_ the requirements of Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 _(1981),_ would have had to have been _satisfied_ _before_ an immediate _appeal_ _could_ have _been_ taken. _Carson_ held that, _to_ be _appealable_ _under_ section 1292(a)(1), a district court ruling must _(1)_ have the practical effect of _entering_ _an_ injunction, _(2)_ have _serious,_ perhaps _irreparable,_ consequences, and (3) be such that _an_ _immediate_ _appeal_ is the _only_ effective _way_ to challenge it. Id. at 84, 101 S.Ct. _at_ 996-97. Carson _involved_ an order denying relief; _it_ is unclear whether Carson also applies when the order in _question_ grants injunctive _relief._ For the reasons explained in _Cohen_ v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, _1466-67_ _(3rd_ Cir.1989), _it_ may well _not._ However, we have not _been_ consistent on this point, sometimes applying Carson to determine the _appealability_ of orders granting relief, see e.g., Thompson v. _Enomoto,_ 815 F.2d 1323, _1326-27_ (9th _Cir.1987),_ and other times not, see e.g., United States v. _Gila_ Valley Irrigation Dist., 31 F.3d _1428,_ 1441 (9th Cir.1994). Here it doesn't matter. We _have_ already held that the first Carson _requirement_ is satisfied, see p. 1422 supra; if the second and third requirements are not satisfied, the _state_ _would,_ _a_ fortiori, not _be_ _entitled_ to mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) 3 The time to file a notice _of_ appeal expired on January 26, _1997;_ the state filed its petition on February 12, 1997
141 S.E.2d 632 (1965) 264 N.C. 401 George W. JONES, Employee, v. MYRTLE DESK COMPANY, Employer, and Liberty Mutual Insurance Company, Carrier. No. 690. Supreme Court of North Carolina. May 5, 1965. *633 C. T. Kennedy, Thomasville, and Haworth, Riggs, Kuhn & Haworth, High Point, for plaintiff. Lovelace & Hardin, High Point, for defendants. PER CURIAM. Counsel for plaintiff has presented the contentions of his client, both as to the facts and law, with thoroughness, force and competency. These contentions have been fully considered in our review of the record. However, we find nothing which justifies a remand of the cause or a reversal of the judgment below. Review in Supreme Court is limited to questions of law and legal inference. The findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. The record in this case contains competent supporting evidence for each finding of fact. The findings are positive and cover all crucial facts upon which the right to compensation depends. The facts found support the conclusion that plaintiff's injury did not arise out of and in the course of his employment with defendant employer. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680. Affirmed.	141 s. e. 2d 632 ( 1965 ) 264 n. c. 401 george w. jones, employee, v. myrtle desk corporation, employer, and liberty mutual insurance distributors, carrier. no. 690. supreme court of north carolina. may 5, 1965. * 633 v. t. kennedy, thomasville, and haworth, riggs, kuhn & haworth, high point, for plaintiff. lovelace & hardin, high point, for defendants. per curiam. counsel for plaintiff has presented the contentions of his client, both as to the facts and law, with thoroughness, force and competency. these contentions have been fully considered in our review of the record. however, we find nothing which justifies a remand of the courts pending a reversal of the judgment below. counsel in supreme evidence is subjected to evidence of law and legal inference. the findings of fact of the industrial commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. the record in this case contains competent supporting evidence for each finding of fact. the findings are positive and cover all crucial facts upon which the right to compensation depends. the facts found support the conclusion that plaintiff ' s injury did not arise out of and in the course of his employment with defendant employer. bell v. dewey brothers, inc., 72 n. c. 280, 72 s. e. 2d 680. affirmed.	141 S. E. 2d 632 (1965) 264 N. C. 401 George W. JONES, Employee, v. MYRTLE DESK COMPANY, Employer, and Liberty Mutual Insurance Company, Carrier. No. 690. Supreme Court of North Carolina. May 5, 1965. * 633 C. T. Kennedy, Thomasville, and Haworth, Riggs, luhg & Haworth, High Point, for plaintiff. Lovelace & Hardin, High Point, for defendants. PER CURIAM. Counsel for plaintiff has presented the contentions of his client, both as to the facts and law, with thoroughness, force and competency. These cont@mtions have been fully considered in our review of the record. However, we find nothing which justifies a remand of the cause or a reversal of the judgment below. Review in Supreme Court is limited to questions of law and legal inference. The findings of fact of the Industrial CoNmissiln are conclusive on appeal when supported by competent evidence, even though there be evideHcW that would support findings to the contrary. The record in th(X case contains competent supporting evidence for each fUndigg of fact. The findings are )oxitive and cover all crucial Ezcts Hp0n which the right to compensation depends. The facts found support the concluXikn that plaintiff ' s injury did not arise out of and in the course of his employment with defendant employer. Bell v. Dewey Brothers, Inc. , 236 N. C. 280, 72 S. E. 2d 680. Affirmed.	141 S.E.2d 632 (1965) 264 N.C. 401 George W. JONES, Employee, v. MYRTLE DESK COMPANY, Employer, and Liberty Insurance Company, No. 690. Supreme Court Carolina. May 5, *633 C. T. Kennedy, Thomasville, and Haworth, Riggs, & Haworth, High Point, for plaintiff. & Hardin, Point, for defendants. PER CURIAM. Counsel for plaintiff has presented the contentions of his client, both as to the facts and law, with thoroughness, force and competency. These contentions have been fully considered in our of the record. However, we find nothing which justifies a remand of the cause or reversal of judgment below. Review in Supreme Court is limited to questions of law and legal inference. findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though be evidence that would support to the contrary. The record in contains competent supporting evidence for each finding of fact. The findings are positive cover all crucial facts upon which the right to depends. The facts found support the conclusion that plaintiff's injury did not arise out of and in the course of his employment employer. Bell v. Dewey Brothers, 236 N.C. 280, 72 S.E.2d 680. Affirmed.	141 S.e.2d 632 (1965) 264 N.C. 401 gEorge w. JoNES, eMPLOYee, V. MYrtLe dESK CompANy, EMPLoYer, AND LIBErTY muTUaL insURAnCE cOMpany, carriER. no. 690. SuPrEmE couRt of nORtH CaRoLInA. mAy 5, 1965. *633 c. t. KenNEdY, THOMASvIllE, And haworth, RIGgs, KUhN & hawoRth, HIgh PoINT, foR plAIntIfF. LOvELaCe & hardin, hiGh POINt, for deFENDaNTs. PER CUrIAM. couNseL FOR pLaIntIff haS pResEnTED THE CoNtEntIONs of his cLient, both as tO THe FacTs and laW, WiTh thoROUgHnEss, ForcE aND CoMpEteNcy. THeSE COntenTIons haVe bEEn FULly coNsIdERed In Our reVIEw Of ThE rECOrd. howEVEr, wE fInD nOThinG WHiCh justIfies A ReMaND oF The cauSe Or A ReVErSal of THE jUdGMENT BelOw. rEvIeW In supReMe COurT IS LimITeD TO QuEStiOns oF laW aND LEGal InFEREnce. The FIndIngs oF FAct OF ThE IndustRIal COMmISsIon ArE concLUSiVe ON APpEal WHEN SUpPORTed by coMpetEnt EVIdENcE, even thOUGh TherE Be EVIDeNce thAt wOULD sUpporT fInDiNGs tO ThE CoNtRaRy. the recORd iN thIs CASe ContAIns COMpeTent SUPPORTInG EviDENcE fOR EaCH findInG OF fAcT. THE fINDINGS aRE POsiTivE AND Cover alL CRuCiAl FACts UpON wHiCH tHe RiGhT To compeNSaTIoN DEPeNDs. ThE fACts founD sUPPORt ThE cOnCluSION THAT PLainTIFF'S iNjURY DID NoT aRiSE out of AnD In the cOUrSE OF His EmpLOyMEnt WiTh dEfEnDaNt eMPLoyEr. belL V. DEWEY bRoTHErs, Inc., 236 n.c. 280, 72 s.e.2D 680. AffIRmEd.	141 S.E.2d 632 (1965) 264 N.C. 401 George W. JONES, Employee,v. MYRTLEDESK COMPANY, Employer, and Liberty Mutual Insurance Company, Carrier. No. 690. Supreme Court of North Carolina.May 5, 1965.*633 C. T. Kennedy, Thomasville, and Haworth, Riggs, Kuhn & Haworth, High Point, for plaintiff. Lovelace & Hardin, High Point,fordefendants. PER CURIAM. Counsel for plaintiff has presented the contentionsof his client, both as to thefacts andlaw, with thoroughness, force and competency. Thesecontentions have been fully consideredin ourreview ofthe record. However, we findnothing which justifies a remand of the cause ora reversal of the judgment below. Review in Supreme Court is limited to questions of law and legal inference. The findings of fact of the IndustrialCommission are conclusive on appealwhensupported by competent evidence, even though therebe evidence that would supportfindingstothe contrary. Therecord in this case contains competent supportingevidence for eachfinding of fact. The findings are positive and cover all crucial facts upon which the right to compensationdepends. The facts found support the conclusion that plaintiff's injury did not ariseout of and in the courseof his employment withdefendant employer. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680. Affirmed.	141 S.E.2d 632 (1965) 264 N.C. _401_ George _W._ JONES, Employee, v. MYRTLE DESK _COMPANY,_ Employer, and Liberty Mutual Insurance _Company,_ _Carrier._ No. 690. Supreme Court of _North_ Carolina. May 5, 1965. _*633_ C. T. _Kennedy,_ Thomasville, _and_ _Haworth,_ Riggs, Kuhn & Haworth, High Point, _for_ plaintiff. _Lovelace_ & _Hardin,_ High Point, _for_ defendants. PER _CURIAM._ Counsel for plaintiff _has_ presented the contentions of his client, both as to the facts and law, with _thoroughness,_ force and competency. These _contentions_ _have_ been _fully_ considered in our review _of_ the _record._ However, _we_ find nothing which _justifies_ _a_ remand of _the_ cause or _a_ reversal of the judgment below. Review in Supreme Court _is_ _limited_ to questions of law _and_ legal _inference._ _The_ _findings_ _of_ fact _of_ the Industrial Commission _are_ conclusive on appeal when supported by _competent_ _evidence,_ _even_ though there be evidence that would support findings to the contrary. The _record_ in this case contains competent supporting evidence for each finding _of_ fact. _The_ findings are positive and cover all crucial facts _upon_ _which_ the _right_ to compensation depends. _The_ _facts_ found _support_ the conclusion that plaintiff's injury did not arise out of and in the course of _his_ employment with defendant employer. Bell v. Dewey _Brothers,_ Inc., 236 N.C. 280, 72 _S.E.2d_ 680. Affirmed.
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 19, 2011 Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER Before KELLY, HARTZ, and HOLMES, Circuit Judges. This matter is before the court on consideration of Appellant’s petition for panel rehearing. Pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C), we GRANT Appellant’s petition for panel rehearing. The previous Order Denying Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 11- 2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached amended Order Denying Certificate of Appealability is substituted in its place. Entered for the Court, ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 19, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before KELLY, HARTZ, and HOLMES, Circuit Judges. Petitioner Richard Kirby, a former New Mexico state prisoner proceeding pro se, 1 seeks a Certificate of Appealability (“COA”) to appeal the district court’s * This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Mr. Kirby is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). denial of: (1) his 28 U.S.C. § 2254 habeas petition; (2) his “Petition for Coram Nobis,” which the district court construed as a supplemental § 2254 habeas pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion, which the district court construed as a second or successive § 2254 habeas petition. Mr. Kirby also seeks to challenge the district court’s refusal to expand the record or grant an evidentiary hearing below. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Kirby’s request for a COA on all claims and dismiss his appeal. BACKGROUND Mr. Kirby was convicted by jury in state court of fraud over $250. 2 His conviction was “based on evidence that [he] hired Loren Collett to design a website for him, and then failed to pay Mr. Collett.” R., Vol. I, at 25 (State Ct. Mem. Op., filed May 10, 2005). More specifically, as described by the federal magistrate judge in this case: 2 The New Mexico fraud statute in effect when Mr. Kirby was indicted and convicted read, in part: “Whoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ($250) but not more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.” N.M. Stat. Ann. § 30-16-6 (1987); see also R., Vol. I, at 35 (State v. Kirby, 161 P.3d 883, 884 (N.M. 2007)) (“Defendant was charged with one count of fraud over $250 but less than $2,500, a fourth degree felony.” (citing N.M. Stat. Ann. § 30-16-6 (1987))). The statute was amended in 2006. Under the amended fraud provision, fraud over $250 but less than $500 is a misdemeanor, while fraud over $500 but less than $2,500 is a fourth degree felony. See N.M. Stat. Ann. § 30-16-6 (2006). 3 Kirby owned a small business. He hired the victim, Loren Collett, to design and develop a website and the two entered into a website design contract under which Kirby was to pay Collett $1,890 for his design services. Collett provided the designs and incorporated them into Kirby’s website, but Kirby did not pay him. When Collett allegedly changed the password to prevent Kirby from utilizing the designs, Kirby, who claims he was the “designated administrator” of the website, had the web space provider reset the password thereby blocking Collett’s attempts to secure the designs pending payment for services. Id. at 873–74 (Magistrate Judge’s Proposed Findings & Recommended Disposition, filed Nov. 4, 2010). The New Mexico district court sentenced Mr. Kirby to eighteen months’ incarceration, followed by one year of supervised release. The conviction and sentence were ultimately affirmed by the New Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Information asserting that Mr. Kirby qualified as a habitual offender under N.M. Stat. Ann. § 31-18- 17B, and therefore his sentence should be increased by four years as required by that provision. See N.M. Stat. Ann. § 31-18-17B (“A person convicted of a noncapital felony in this state . . . who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge . . . is a habitual offender and his basic sentence shall be increased by four years.”). The trial court agreed and issued an amended judgment, which added four years to Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence. Mr. Kirby then appealed the sentence enhancement. 4 In September 2008, while the sentence appeal was pending in state court, Mr. Kirby filed a habeas application pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Mexico. In December 2009, Mr. Kirby filed a “Petition for Coram Nobis” with the federal district court, which both informed the court that the state courts had rejected his sentence appeal and asserted several challenges to the sentence enhancement. 3 “[A]s of August 19, 2010, Kirby had completed both the original and enhanced sentences, as well as the period of parole associated with the fraud conviction.” R., Vol. I, at 869. In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “the fraud conviction violates his due process rights because it involved an unforeseeable interpretation of the law,” id. at 873; (2) his due-process rights were violated because “the New Mexico fraud statute is vague as applied to him,” id. at 879; (3) the New Mexico state court lacked subject-matter jurisdiction, id. at 881; (4) there was insufficient evidence adduced at trial to demonstrate “that someone other than [Mr. Kirby] owned the website,” a required element under the state fraud statute, id. at 882–83; (5) the restitution award issued against him was impermissible, id. at 883–84; (6) his “due process rights were violated by the 3 The State initially sought dismissal of the habeas application on the ground that Mr	filed united states court of appeals united states court of appeals tenth circuit tenth circuit september 19, 2011 elisabeth a. shumaker clerk of court richard g. kirby, plaintiff - appellant, no. 11 - 2082 v. ( d. c. no. 1 : 08 - cv - 00887 - jb - djs ) ( d. n. m. ) attorney general for the state of new mexico ; james janecka, warden, defendants - appellees. order before kelly, hartz, and holmes, circuit judges. this matter is advising the court on consideration of appellant that filed petition for panel rehearing. pursuant to federal rule of appellate procedure 40 ( a ) ( 4 ) ( c ), we grant appellant ’ s petition for panel rehearing. the previous order denying certificate of appealability, kirby v. attorney league of new mexico, no. 11 - 2082, 2011 wl 3664281 ( 10th cir. aug. 22, 2011 ), is vacated and the attached amended order denying certificate of appealability is substituted in its place. entered for the court, elisabeth a. shumaker, clerk filed united states court of appeals tenth circuit united states court of appeals september 19, 2011 tenth circuit elisabeth a. shumaker clerk of court richard g. campbell, plaintiff - appellant, no. 11 - 2082 v. ( d. c. no. 01 : 08 - cv - 00887 - jb - djs ) ( d. n. m. ) attorney general for the state of new mexico ; james janecka, warden, defendants - appellees. order denying certificate of appealability * before kelly, wright, and holmes, circuit judges. petitioner richard kirby, a former new mexico state prisoner proceeding pro se, 1 seeks a certificate to appealability ( “ coa ” ) to appeal the district court ’ s * this order is not binding precedent, except under the doctrines of law of court case, res judicata, and collateral estoppel. it may be cited, however, for its persuasive value consistent with federal rule of appellate procedure 32. 1 and tenth circuit rule 32. 1. after examining the appellate record, this three - court panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. see fed. r. app. p. 34 ( a ) ; 10th cir. r. 34. 1 ( g ). the case is therefore ordered submitted without oral argument. 1 because mr. kirby is proceeding pro se, we construe his filings liberally. see erickson v. pardus, 551 u. s. 89, 94 ( 2007 ) ( per curiam ) ; van deelen v. johnson, 497 f. 3d 1151, 1153 n. 1 ( 10th cir. 2007 ). denial of : ( 1 ) his 28 u. s. c. § 2254 habeas petition ; ( 2 ) his “ petition for coram nobis, ” which the district court construed as a supplemental § 2254 habeas pleading ; and ( 3 ) his federal rule of civil procedure rule 59 ( e ) motion, which the district court construed as a second or successive § 2254 habeas petition. mr. kirby also seeks to challenge the district court ’ s refusal to expand the record or grant an evidentiary hearing below. exercising jurisdiction under 28 u. s. c. § § 1291 and 2253 ( a ), we deny mr. kirby ’ s request for a coa on all claims and dismiss his appeal. background mr. kirby was convicted by jury in state court of fraud over $ 250. 2 his conviction was “ based on evidence that [ he ] hired loren collett to design a website for him, and then failed to pay mr. collett. ” r., vol. i, at 25 ( state ct. mem. op., filed may 10, 2005 ). more specifically, as described by the federal magistrate judge in this case : 2 the new mexico fraud statute in effect when mr. kirby was indicted and convicted read, in part : “ whoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ( $ 250 ) but not more than twenty - five hundred dollars ( $ 2, 500 ) is guilty of a fourth degree felony. ” n. m. stat. ann. § 30 - 16 - 6 ( 1987 ) ; see also r., vol. i, at 35 ( state v. kirby, 161 p. 3d 883, 884 ( n. m. 2007 ) ) ( “ defendant was charged with one count of fraud over $ 250 but less than $ 2, 500, a fourth degree felony. ” ( citing n. m. stat. ann. § 30 - 16 - 6 ( 1987 ) ) ). the statute was amended in 2006. under the amended fraud provision, fraud over $ 250 but less than $ 500 is a misdemeanor, while fraud over $ 500 but less than $ 2, 500 is a fourth degree felony. see n. m. stat. ann. § 30 - 16 - 6 ( 2006 ). 3 kirby owned a small business. he hired the victim, loren collett, to design and develop a website and the two entered into a website design contract under which kirby was to pay collett $ 1, 890 for his design services. collett provided the designs and incorporated them into kirby ’ s website, but kirby did not pay him. when collett allegedly changed the password to prevent kirby from utilizing the designs, kirby, who claims he was the “ designated administrator ” of the website, had the web space provider reset the password thereby blocking collett ’ s attempts to secure the designs pending payment for services. id. at 873 – 74 ( magistrate judge ’ s proposed findings & recommended disposition, filed nov. 4, 2010 ). the new mexico district court sentenced mr. kirby to eighteen months ’ incarceration, followed by one year of supervised release. the conviction and sentence were ultimately affirmed by the new mexico supreme court in 2007. the district attorney then filed a supplemental criminal information asserting that mr. kirby qualified as a habitual offender under n. m. stat. ann. § 31 - 18 - 17b, and therefore his sentence should be increased by four years as required by that provision. see n. m. stat. ann. § 31 - 18 - 17b ( “ a person convicted of a noncapital felony in this state... who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge... is a habitual offender and his basic sentence shall be increased by four years. ” ). the trial court agreed and issued an amended judgment, which added four years to mr. kirby ’ s prison sentence, resulting in a sixty - six - month sentence. mr. kirby then appealed the sentence enhancement. 4 in september 2008, while the sentence appeal was pending in state court, mr. kirby filed a habeas application pursuant to 28 u. s. c. § 2254 in the united states district court for the district of new mexico. in december 2009, mr. kirby filed a “ petition for coram nobis ” with the federal district court, which both informed the court that the state courts had rejected his sentence appeal and asserted several challenges to the sentence enhancement. 3 “ [ a ] s of august 19, 2010, kirby had completed both the original and enhanced sentences, as well as the period of parole associated with the fraud conviction. ” r., vol. i, at 869. in his § 2254 habeas application, mr. kirby raised ten challenges : ( 1 ) “ the fraud conviction violates his due process rights because it involved an unforeseeable interpretation of the law, ” id. at 873 ; ( 2 ) his due - process rights were violated because “ the new mexico fraud statute is vague as applied to him, ” id. at 879 ; ( 3 ) the new mexico state court lacked subject - matter jurisdiction, id. at 881 ; ( 4 ) there was insufficient evidence adduced at trial to demonstrate “ that someone other than [ mr. kirby ] owned the website, ” a required element under the state fraud statute, id. at 882 – 83 ; ( 5 ) the restitution award issued against him was impermissible, id. at 883 – 84 ; ( 6 ) his “ due process rights were violated by the 3 the state initially sought dismissal of the habeas application on the ground that mr	FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 19, 2011 Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff - Appellant, No. 11 - 2082 v. (D. C. No. 1: 08 - CV - 00887 - JB - DJS) (D. N. M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants - Appellees. ORDER Before KELLY, HARTZ, and HOLMES, Circuit Judges. This matter is before the court on consideration of Appellant ’ s petition for panel rehearing. Pursuant to Federal Rule of Appellate Procedure 40 (a) (4) (C ), we GRANT Appellant ’ s petition for panel rehearing. The previous Order Denying Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 11 - 2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011 ), is vacated and the attached amended Order Denying Certificate of Appealability is substituted in its place. Entered for the Court, ELISABETH A. SHUMAKER, Clerk FILED Uniyrd States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 19, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff - Appellant, No. 11 - 2082 v. (D. C. No. 1: 08 - CV - 00887 - JB - DJS) (D. N. M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before oFLLY, HARTZ, and HOLMES, Circuit Judges. Petitioner Richard Kirby, a former New Mexico state prisoner proceeding pro se, 1 seeks a Certificate of AppealabikKty (“ COA ”) to appeal the district court ’ s * This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32. 1 and Tenth Circuit Rule 32. 1. After examining the appellate record, this three - judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34 (a ); 10th Cir. R. 34. 1 (G ). The case is therefore ordered submitted without oral argument. 1 Because Mr. Kirby is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U. S. 89, 94 (2007) (per curiam ); Van Deelen v. Johnson, 497 F. 3d 1151, 1153 n. 1 (10th Cir. 2007 ). denial of: (1) his 28 U. S. C. § 2254 habeas petition; (2) his “ Petition for Coram Nobis, ” which the district court construed as a supplemental § 2254 habeas pleading; and (3) his Federal Rule of Civil Procedure Rule 59 (e) motion, which the district court construed as a second or successive § 2254 habeas petition. Mr. Kirby also seeks to challenge the district court ’ s refusal to expand the record or grant an evidentiary hearing below. Exercising jurisdiction under 28 U. S. C. § § 1291 and 2253 (a ), we deny Mr. Kirby ’ s request for a COA on all claims and dismiss his appeal. BACKGROUND Mr. Kirby was convicted by jury in state court of fraud over $ 250. 2 His conviction was “ based on evidence that [he] hired Loren Collett to design a website for him, and then failed to pay Mr. Collett. ” R. , Vol. I, at 25 (State Ct. Mem. Op. , filed May 10, 2005 ). More specifically, as described by the federal magistrate judge in this case: 2 The New Mexico fraud statute in effect when Mr. Kirby was indicted and convicted read, in part: “ Whoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ($ 250) but not more than twenty - fiDf hundred dollars ($ 2, 500) is guilty of a fourth degree felony. ” N. M. Stat. Ann. § 30 - 16 - 6 (1987 ); see also R. , Vol. I, at 35 (State v. Kirby, 161 P. 3d 883, 884 (N. M. 2007) ) (“ Defendant was charged with one count of fraud over $ 250 but less than $ 2, 500, a fourth deYre# felony. ” (citing N. M. Stat. Ann. § 30 - 16 - 6 (1987) ) ). The statute was amended in 2006. Under the amended fraud pDovis(on, fraud over $ 250 but less than $ 500 is a misdemeanor, while fraud over $ 500 but less than $ 2, 500 is a fourth degree felony. See N. M. Stat. Ann. § 30 - 16 - 6 (2006 ). 3 Kirby owned a small business. He hired the victim, Loren Collett, to design and develop a website and the two entered into a website design contract under which Kirby was to pay Collett $ 1, 890 for his design services. Collett provided the designs and incorporated them into Kirby ’ s website, but Kirby did not pay him. When Collett allegedly changed the password to prevent Kirby from utilizing the designs, Kirby, who claims he was the “ designated administrator ” of the website, had the web space provider reset the password thereby blocking Collett ’ s attempts to secure the designs pending payment for services. Id. at 873 – 74 (Magistrate Judge ’ s Proposed Findings & Recommended Disposition, filed Nov. 4, 2010 ). The New Mexico district court sentenced Mr. Kirby to eighteen months ’ incarceration, followed by one year of supervised release. The conviction and sentence were ultimately affirmed by the New Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Information asserting that Mr. Kirby qualified as a habitual offender under N. M. Stat. Ann. § 31 - 18 - 17B, and therefore his sentence should be increased by four years as required by that provision. See N. M. Stat. Ann. § 31 - 18 - 17B (“ A person convicted of a noncapital felony in this state. .. who has incurred two pri95 felony convictions that were parts of separate transactions or occurrences or conditional discharge. .. is a habitual offender and his basic sentence shall be increased by four years. ” ). The trial court agreed and issued an amfndeX judgment, which added four years to Mr. Kirby ’ s prison sentence, resulting in a sixty - six - month sentence. Mr. Kirby then appealed the sentence enhancement. 4 In September 2008, while the sentence appeal was pending in state court, Mr. Kirby filed a habeas application pursuant to 28 U. S. C. § 2254 in the United States District Court for the District of New Mexico. In December 2009, Mr. Kirby filed a “ Petition for Coram Nobis ” with the federal district court, which both informed the court that the state courts had rejef^ed his sentence appeal and asserted several challenges to the sentence enhancement. 3 “ [A] s of August 19, 2010, Kirby had completed both the original and enhanced sentences, as well as the period of parole associated with the fraud conviction. ” R. , Vol. I, at 869. In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “ the fraud conviction violates his due process rights because it involved an unforeseeable interpretation of the law, ” id. at 873; (2) his due - process rights were violated because “ the New Mexico fraud statute is vague as applied to him, ” id. at 879; (3) the New Mexico state court lacked subject - matter jurisdiction, id. at 881; (4) there was insufficient evidence adduced at trial to demonstrate “ that someone other tysn [Mr. Kirby] owned the website, ” a required element under the state fraud statute, id. at 882 – 83; (5) the restitution award issued against him was impermissible, id. at 883 – 84; (6) his “ due process rights were violated by the 3 The State initially sought dismissal of the habeas application on the ground that Mr	FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth TENTH CIRCUIT 19, 2011 Elisabeth A. Shumaker of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, ORDER Before KELLY, HARTZ, and HOLMES, Circuit Judges. This matter is the court on consideration of Appellant’s petition for panel rehearing. Pursuant to Federal Rule Appellate 40(a)(4)(C), we GRANT Appellant’s petition for panel previous Order Denying Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached amended Order Denying Certificate Appealability is substituted its Entered for the Court, ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before KELLY, and HOLMES, Circuit Judges. Petitioner Richard Kirby, a former New Mexico state prisoner proceeding se, 1 seeks a Certificate of Appealability (“COA”) to appeal district court’s * This Order not binding precedent, except the of law of the case, res judicata, and collateral It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. After examining appellate record, this three-judge panel determined unanimously that oral argument would be of material assistance in the determination of this See Fed. R. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Mr. Kirby is proceeding se, we construe his filings v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 1151, 1153 n.1 (10th Cir. denial of: his 28 U.S.C. § 2254 habeas petition; (2) “Petition for Coram Nobis,” which the district court construed as a supplemental § 2254 habeas pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion, which the district court construed as a second or successive § 2254 petition. Mr. Kirby also seeks to challenge district court’s refusal to expand the record or grant an evidentiary hearing below. Exercising jurisdiction under 28 §§ 1291 2253(a), we deny Mr. Kirby’s request for a COA on all and dismiss his BACKGROUND Mr. convicted by jury state court of fraud over $250. 2 His conviction “based on evidence that [he] hired Loren Collett to design website him, and then failed to pay Mr. Collett.” R., Vol. I, at Ct. Op., filed May 10, 2005). More specifically, as described by the federal judge in this case: 2 The New Mexico fraud statute in effect when Mr. Kirby was and convicted read, in part: “Whoever commits fraud when the of the property misappropriated or taken is over hundred fifty dollars ($250) but not more than hundred dollars is guilty of a fourth degree felony.” N.M. Stat. Ann. § 30-16-6 (1987); see R., Vol. I, (State v. Kirby, 883, 884 (N.M. 2007)) (“Defendant was charged with one of fraud over $250 but less than a fourth degree felony.” (citing Ann. § 30-16-6 (1987))). The was amended in 2006. Under the fraud provision, fraud over but less than $500 is a misdemeanor, while fraud over $500 but than $2,500 is a fourth felony. See N.M. Stat. § 30-16-6 (2006). 3 Kirby owned a small business. He hired the victim, Loren Collett, to design and develop a website and two entered into a website design contract which Kirby was to pay Collett $1,890 for his design services. Collett provided the designs and them into Kirby’s website, but Kirby did not pay him. When Collett allegedly changed the password to prevent Kirby from utilizing the designs, Kirby, who claims he was the “designated administrator” of the website, had the web space provider reset the password thereby blocking Collett’s attempts to designs pending payment for services. Id. at 873–74 (Magistrate Judge’s Proposed Findings Recommended Disposition, Nov. 4, 2010). The New Mexico court sentenced Mr. Kirby eighteen months’ incarceration, followed by one year of supervised release. The conviction and sentence were ultimately affirmed the New Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Information asserting that Mr. Kirby qualified as a habitual offender under N.M. Stat. Ann. § 31-18- 17B, and therefore his sentence should be increased by four years as required that provision. See N.M. Stat. Ann. § 31-18-17B (“A person convicted of a noncapital felony in this state . . . who has incurred two prior felony convictions that were parts separate transactions or occurrences or conditional discharge . . a habitual offender and his basic sentence shall be increased by four years.”). The court agreed and issued an amended judgment, which added four years to Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence. Mr. Kirby then appealed sentence enhancement. 4 In September 2008, while the sentence appeal was pending in state court, Mr. Kirby filed a habeas application pursuant U.S.C. § 2254 in the United States District Court for the District of New December Kirby filed a “Petition for Coram Nobis” with the federal district court, both informed the that the state courts had rejected his sentence appeal and asserted several challenges to the sentence enhancement. 3 of August 19, 2010, had completed both original and enhanced sentences, as well as the period of parole associated with the conviction.” R., I, 869. In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “the fraud conviction his due process rights because it involved an unforeseeable interpretation of the law,” at 873; (2) his due-process rights were violated because “the New Mexico fraud statute is vague as applied to him,” id. at 879; the New Mexico state lacked jurisdiction, id. at 881; (4) there was evidence at trial to demonstrate “that someone other than [Mr. Kirby] owned the website,” a required element under the state fraud statute, id. at 882–83; (5) the award issued against him was impermissible, id. 883–84; his “due process rights were violated by the 3 The State initially sought of the habeas application on the ground that Mr	fiLeD unITeD STAtes COURt oF AppealS unitEd stATEs couRT OF apPEAlS teNTh CircuIt TENTH cIrcUit sEPtEmbEr 19, 2011 EliSAbeTh A. sHuMAker cleRk oF cOuRt RIchARD G. kiRBy, PlAiNtIFf-apPELlAnT, No. 11-2082 v. (d.c. no. 1:08-cV-00887-JB-djs) (D.N.m.) aTToRNEY gENEraL FoR tHe StATE of new MexiCo; jaMES JaNeCkA, wArDen, defENDAntS-appElLEeS. Order BEfore KeLLy, haRTz, And holMes, CiRCuIT jUDgeS. thIs MaTTer is bEfore tHe cOURt ON coNSIdERaTION OF ApPeLlaNT’s PetITiOn for paNEl ReHeAring. purSuANt To fEDERal rule OF APpElLAte pRocEdure 40(A)(4)(c), wE grAnT AppeLlaNT’S PeTITIOn FOR PaNeL rEHeaRIng. tHE PrevIoUs oRder dENyiNG certIficaTE of apPealaBiliTY, kIrBy v. ATToRNeY GeNeRal Of NEw mexIcO, no. 11- 2082, 2011 Wl 3664281 (10th CIR. aug. 22, 2011), IS vACAted aND The aTTaCHed aMeNDED oRDeR deNyINg ceRTIFICate of aPPEaLAbIlIty is SUBStITUted iN iTs plACe. ENtErEd for tHe CourT, ELISabEtH A. sHumAKEr, clerk FiLed uNITeD StaTes cOUrt oF aPpEals teNth cIrCuit uNiTed STaTEs coUrt of apPeaLs sEpTEmbEr 19, 2011 teNtH circuit eLiSABeTH a. shUmaKeR cLerK of coUrt RICHard g. kIrBy, pLaInTiFF-ApPeLLanT, nO. 11-2082 v. (d.C. No. 1:08-cV-00887-jB-Djs) (d.N.m.) ATTOrNEy GenerAL fOr THe STatE OF New MexicO; JamEs JANeckA, wARDEn, DEFEnDants-apPElLEEs. OrDeR DEnyiNg CertiFiCAte oF aPPeALAbILITy * beFORE KElLY, HARtz, and HolmES, CIRcUiT JUdgeS. pEtITIoNeR RICHArd kiRBY, A FOrmER NEw MEXIco sTaTe pRisOner proCEeDing prO Se, 1 SEEKS A cerTificaTe Of APpEALaBILiTy (“coa”) to appeaL THE diSTRiCt cOUrT’S * THis ORdER Is not bInDING preCEDenT, exCepT UndeR THE doCTrines Of Law oF THE CAse, res jUdicAtA, aND CoLLatERaL EsTOpPeL. IT MaY bE ciTED, HOwEVEr, For ITs PERsuaSive VALuE CONsiSTeNt WiTH feDERaL rULe of aPPEllaTE pROcEDUrE 32.1 AnD TENTH CircUit RUlE 32.1. afTer ExAminIng tHe APpellatE ReCOrd, ThIs thREE-JuDgE PAnEL dEtErMiNED UNANImOusLY tHaT orAl ArgUMEnT wOulD noT bE OF mATErIaL ASsIstAnCe In tHe DetermiNAtiON Of This APpeAL. SeE fed. R. aPP. p. 34(A); 10tH ciR. R. 34.1(g). THe caSe IS tHERefore OrdereD suBMITTEd withoUT oRaL ARgumeNt. 1 BEcaUSE MR. kIrBY is PRocEeDIng Pro SE, we CONSTRuE hIs fILinGs lIBerALly. seE ERIcKSon v. PArDUS, 551 u.s. 89, 94 (2007) (PeR cURiaM); vAn deELen v. joHNSon, 497 f.3d 1151, 1153 n.1 (10th Cir. 2007). dEniAl oF: (1) hIs 28 U.S.C. § 2254 HABeaS pETItiON; (2) HIS “PETitiON fOR corAM NobIs,” wHiCh The diSTRICt cOurT cOnstRued aS a SuPPlEmEntAl § 2254 HAbeAs plEADing; aND (3) hiS federAl RULe Of CIvIL PROcEDure rUle 59(e) MoTIoN, which THe DistRICT CoURT CONStrUED as A SEcond or sucCeSSIve § 2254 Habeas petitioN. Mr. KiRBy aLsO SEEKs to chAllENGE thE DistRIct CouRt’s refUsAL tO expaNd the RECOrD Or Grant an eviDENtIARy HEaRing bElOw. exerCiSiNg jURisdICtIon UnDEr 28 u.s.c. §§ 1291 AnD 2253(A), we Deny mR. kiRby’S REquest FOr a COa oN ALL claims And dismiSs HIs APPEaL. BACkGroUNd Mr. KIrBy WaS COnVIctEd BY JURy In STaTE cOuRT OF fraud ovEr $250. 2 hIs coNviCTIoN was “based oN eVidEnCE tHat [HE] HIRED loReN cOlLEtt TO DESign a WEBSIte for hiM, And ThEN fAilEd tO PAy mR. cOlleTt.” R., voL. I, AT 25 (staTE CT. MEM. oP., fiLEd mAy 10, 2005). MORe SPEcifiCALLY, as dEsCRiBEd BY the feDErAL MagiStRaTe JudGE In tHIs CAse: 2 the new MeXIcO fRaUd StAtute IN efFeCt wheN mR. kIRby wAS INdictED And CONViCTED reaD, IN PART: “whoEvEr CoMmiTS fRAuD when tHE vALUE OF The PrOpERTy MISAPPRoprIatEd or TaKEn Is over TwO HUNDrED FIFTy DolLaRs ($250) BUt NoT moRe ThAn twEnty-fIVe HuNDRed DoLLARS ($2,500) is guILTy Of A FourTH dEGrEE felOnY.” N.M. STAt. aNn. § 30-16-6 (1987); See AlSO R., vol. i, At 35 (stAte v. KIRBY, 161 P.3D 883, 884 (N.M. 2007)) (“DefeNDaNT wAs CHARgeD WItH oNe counT Of fRaUD oVER $250 But LESS THAN $2,500, A fOURth DeGRee FelonY.” (cITING n.m. sTAT. anN. § 30-16-6 (1987))). ThE stATutE Was AMEnDed in 2006. uNdEr THE aMendED FRAUd pROViSIoN, FrAud OveR $250 bUt LEsS tHAN $500 IS a MiSdeMEanoR, WhILe fRauD ovEr $500 BUt LEss Than $2,500 IS A fOurth degREe fElONY. seE N.m. stat. ANN. § 30-16-6 (2006). 3 kIRBy owNed A smAlL busINeSS. he hiRED tHe ViCTim, LorEn CollETT, To dEsigN And DEvelOP A weBsitE aND thE Two EntEREd iNto A wEBSITE DeSigN CoNtraCt uNdEr whICh kiRBy Was to PaY COlleTT $1,890 FoR HIS design serviCes. ColLETt pRoVIdEd THE DEsIGns AnD incorpOrated tHem iNTO kiRby’s WeBSitE, bUt kIRBy Did nOt PAY Him. wHen COllETT aLLEGEdlY chaNgED ThE PASswoRD to PrEvENt kirbY fROm uTIlIzinG the DesIGNS, kIRBY, wHO claims he wAS tHE “desIgnAted ADmiNIstRATOR” OF ThE webSITe, had thE WEB SPacE PROVIdER REset ThE PASSWord TherEBy bloCkINg cOlLetT’S ATtEmpTS tO SeCUrE tHE dEsIgNS penDINg paYMeNT foR SERViCeS. ID. At 873–74 (mAgIStRATe jUDGe’S PROpOSED fINdingS & RecOMmeNded DiSPoSITIon, FIled nOV. 4, 2010). thE neW meXico dISTrICT court SeNTeNcEd mR. kirbY TO EightEEN MONThs’ iNcaRcERAtiOn, fOLlOwED BY One YeAR OF sUPerViSED ReLEaSE. tHe cOnvICtIon anD seNteNce wErE ULTimAtELY afFIRmed BY The NeW MeXICo SUPREMe CouRT iN 2007. the DistrICT aTtoRnEY THEn fILeD a sUPPLEMEntal CRiminaL iNFoRMaTION AssErtiNg thAT mR. kirbY qUALiFieD as A habITUaL OFFEnDEr unDeR N.M. StaT. aNn. § 31-18- 17B, AND theReFOre hIS SenTeNCe ShOULd bE increASEd by Four YEarS As rEquIRed BY THat PRovISIOn. SEE N.M. sTat. ANn. § 31-18-17B (“a pERson cOnVictED OF A nONCaPiTAl feloNy IN this StAtE . . . wHo haS iNcURRed tWO pRiOr FELOnY cONvICtIoNs thaT WERe ParTs of sEpaRATe tRaNsActIons OR occUrRENCES OR CondITIOnal diSCharGe . . . Is A haBiTUAL offeNdER and HIs baSIC seNTENCE SHAlL Be InCreaSEd By FOUR yeaRS.”). The TRIal coURt agreEd aNd IsSuED An AmEndeD JUDgMENT, WhIch AdDED FoUR YeARS To mR. KIrBY’s prison SEntENCe, reSUlTIng iN a Sixty-Six-mOnTh sENteNce. mr. kiRBY TheN AppeaLEd THe sENteNCe eNHANcEMENT. 4 IN sEpTEmBER 2008, WHilE thE senTence apPeAl WaS pENdIng in STAte CouRT, MR. kIRby FILed a HaBEas apPLiCATion PuRSUanT TO 28 u.S.C. § 2254 iN The UnitEd stAtes DISTrict CoURT For THE diStRiCt Of nEW MEXIcO. In deCeMbER 2009, Mr. KiRby fILED A “pEtiTIon For CorAm Nobis” WIth tHE FEderaL disTrict CourT, wHIcH boTh INFORMeD THe CouRt That The StATE cOurts had ReJeCTEd hiS SeNTenCe aPpEAl anD aSseRTED SEvErAL CHALlENGeS to tHE SeNtEnce EnhaNceMENt. 3 “[A]S OF AUguSt 19, 2010, KiRBy Had cOmPleteD bOth THe orIGiNaL And ENhANcEd SEnTEnces, as WeLl AS The pERIOD OF pArOLe asSoCiaTEd wIth THE FRAuD convICTiOn.” r., voL. i, aT 869. In hIs § 2254 HaBEaS aPpliCATIOn, mR. KIRbY RaIseD TEn chALlENges: (1) “the FrAud ConviCtion ViOLaTEs HIS DUE pRoCEsS riGhTs BEcAuSe it INvOLveD aN UNFoREseeABLe iNTerpReTaTiON of tHE lAW,” id. at 873; (2) hIs DuE-proCesS RigHtS WErE viOlATeD BECause “tHe NeW meXICO FRAuD sTatUTe iS VaGue aS appliED TO hiM,” Id. AT 879; (3) tHE New mexIco sTATe CouRT LaCkED sUBJect-matTeR jURISdIcTiOn, Id. At 881; (4) tHERE wAs INSUfFICIEnt EVIdeNcE AdDUCed at tRiaL TO DEMONstRATe “tHAT someone oThER tHan [mR. KiRBy] owNed the weBSIte,” a rEQuireD ElEMeNT unDer THE STate FrAuD sTATUtE, ID. At 882–83; (5) tHE REstitUtiOn AwarD IsSued aGAiNst HIM wAs iMPermiSSiblE, iD. aT 883–84; (6) hIs “DUe ProCesS RIghts werE vioLAted BY tHe 3 the sTaTE iNITIaLly SOUGHt dismIsSaL oF the haBEas ApplicATION oN the grOuNd ThAt mr	FILED United States CourtofAppeals UNITEDSTATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 19, 2011 Elisabeth A.Shumaker Clerk of Court RICHARDG. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS)(D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDERBefore KELLY, HARTZ,and HOLMES, Circuit Judges. This matter is before the court on consideration of Appellant’s petition forpanel rehearing. Pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C), we GRANT Appellant’s petition for panelrehearing. The previous OrderDenyingCertificate of Appealability, Kirby v. Attorney General of New Mexico, No.11-2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached amended Order Denying Certificate ofAppealability issubstituted in its place. Entered for the Court, ELISABETH A.SHUMAKER, Clerk FILED United States Court of AppealsTenth Circuit UNITED STATES COURTOFAPPEALS September 19, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No.11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS)(D.N.M.) ATTORNEYGENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * BeforeKELLY, HARTZ, and HOLMES,Circuit Judges. Petitioner Richard Kirby, a former New Mexicostate prisoner proceeding pro se, 1 seeks a Certificate of Appealability (“COA”)to appeal the district court’s * This Order is notbinding precedent, except under thedoctrinesof law of the case, res judicata, andcollateral estoppel. It may be cited, however, for its persuasive value consistent with FederalRuleof Appellate Procedure32.1 and Tenth Circuit Rule 32.1. After examining the appellate record, this three-judge panel determined unanimouslythat oral argument would not be ofmaterial assistance inthe determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Mr. Kirby is proceeding prose, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (percuriam); VanDeelen v. Johnson,497 F.3d 1151, 1153 n.1 (10th Cir. 2007). denial of: (1) his28 U.S.C.§ 2254habeas petition; (2) his “Petition for Coram Nobis,” which the district court construed as a supplemental § 2254 habeas pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion,whichthe district court construed as a second or successive § 2254 habeas petition. Mr. Kirby also seeks to challenge the district court’s refusalto expand the record or grantanevidentiary hearing below. Exercising jurisdiction under 28 U.S.C. §§1291 and 2253(a), we deny Mr. Kirby’s request for a COA onall claims and dismiss his appeal. BACKGROUND Mr. Kirby was convicted by juryin state court of fraud over$250. 2 His conviction was “based on evidence that [he] hired Loren Collett to design a website forhim, and then failed to payMr. Collett.” R., Vol.I, at 25 (StateCt.Mem. Op., filed May 10, 2005). Morespecifically, as described by the federal magistrate judge in this case:2 The New Mexicofraud statute in effect when Mr. Kirbywas indicted and convicted read, in part: “Whoever commitsfraud when the value of the property misappropriated or taken is over two hundredfifty dollars ($250) but not more thantwenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.” N.M. Stat. Ann. § 30-16-6(1987);see also R., Vol. I,at 35 (State v. Kirby, 161 P.3d 883, 884(N.M. 2007)) (“Defendant wascharged with one count offraud over$250 butless than $2,500,a fourth degree felony.” (citing N.M.Stat. Ann.§ 30-16-6 (1987))). The statute wasamended in 2006. Underthe amended fraud provision, fraud over $250 but lessthan $500is a misdemeanor, while fraud over$500 but less than $2,500 is a fourth degree felony. See N.M.Stat.Ann. § 30-16-6 (2006). 3Kirbyowned a small business. He hired the victim, Loren Collett, to designand develop a website andthe two enteredinto a website design contract under whichKirby was to pay Collett$1,890 for his design services. Collett provided the designs and incorporated them into Kirby’s website, but Kirby did not pay him. When Collett allegedlychanged the password toprevent Kirby from utilizing the designs, Kirby, who claims he was the “designated administrator” of the website, had theweb space providerreset thepassword thereby blocking Collett’sattempts tosecurethe designs pending payment for services.Id. at 873–74 (Magistrate Judge’s Proposed Findings & Recommended Disposition, filed Nov. 4,2010). The New Mexico district courtsentencedMr. Kirby to eighteen months’ incarceration,followed by one year of supervised release. The conviction and sentence were ultimately affirmed bytheNew Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Informationasserting that Mr. Kirbyqualified as a habitual offender under N.M. Stat. Ann.§ 31-18- 17B, and therefore his sentenceshould be increased byfour years as required by that provision. SeeN.M. Stat.Ann. § 31-18-17B (“A person convicted ofa noncapital felony in this state . . . who has incurred two prior felonyconvictions thatwere partsofseparate transactions oroccurrences or conditional discharge. . .isa habitual offender and his basic sentence shall be increased by four years.”). The trial court agreed and issued an amended judgment, whichadded four yearsto Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence. Mr. Kirby thenappealed the sentence enhancement. 4 In September2008, while the sentence appeal was pending in state court,Mr. Kirby filed a habeas application pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Mexico.In December2009, Mr. Kirby filed a “Petition for Coram Nobis” with thefederal district court, which both informedthe court that the statecourts had rejected his sentenceappeal and asserted several challenges to the sentence enhancement. 3 “[A]s of August19, 2010, Kirby had completed both the original andenhanced sentences, aswell asthe period of parole associated withthe fraud conviction.” R., Vol. I, at869. In his §2254habeas application, Mr. Kirbyraised ten challenges: (1) “the fraud conviction violates his due process rightsbecause it involved an unforeseeableinterpretation of thelaw,” id. at 873; (2) his due-process rights were violatedbecause “the New Mexico fraud statute is vague as applied to him,”id. at 879; (3) the New Mexico state court lacked subject-matter jurisdiction, id. at881; (4) there was insufficientevidence adduced at trial to demonstrate “that someone other than [Mr.Kirby] ownedthe website,” a required element under the state fraud statute, id. at 882–83; (5) the restitution award issuedagainst him was impermissible, id.at 883–84; (6) his “due process rightswere violatedby the 3 The State initially sought dismissal of the habeas application on the ground that Mr	FILED United States Court of _Appeals_ UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 19, _2011_ Elisabeth A. _Shumaker_ Clerk of Court RICHARD G. _KIRBY,_ Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL _FOR_ THE STATE OF NEW MEXICO; _JAMES_ JANECKA, Warden, Defendants-Appellees. _ORDER_ Before _KELLY,_ HARTZ, and HOLMES, Circuit Judges. _This_ _matter_ is before the court _on_ consideration of Appellant’s _petition_ _for_ panel rehearing. Pursuant to _Federal_ Rule of Appellate Procedure _40(a)(4)(C),_ we _GRANT_ Appellant’s _petition_ for panel _rehearing._ _The_ previous _Order_ _Denying_ Certificate _of_ Appealability, Kirby v. Attorney _General_ _of_ _New_ Mexico, No. 11- 2082, 2011 WL 3664281 (10th _Cir._ Aug. 22, 2011), is vacated and the attached amended Order Denying Certificate of Appealability is substituted in _its_ _place._ Entered for the Court, ELISABETH A. SHUMAKER, _Clerk_ FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 19, 2011 _TENTH_ CIRCUIT Elisabeth A. _Shumaker_ Clerk of Court RICHARD G. KIRBY, _Plaintiff-Appellant,_ No. 11-2082 v. (D.C. No. _1:08-CV-00887-JB-DJS)_ (D.N.M.) ATTORNEY _GENERAL_ FOR THE STATE OF NEW MEXICO; JAMES _JANECKA,_ Warden, Defendants-Appellees. ORDER DENYING CERTIFICATE OF _APPEALABILITY_ * Before KELLY, HARTZ, and HOLMES, _Circuit_ Judges. Petitioner Richard Kirby, a former _New_ Mexico state prisoner proceeding pro se, 1 seeks a Certificate of Appealability _(“COA”)_ to appeal the district court’s * This _Order_ _is_ not _binding_ precedent, except under the doctrines of law of _the_ case, _res_ judicata, and collateral estoppel. It may be _cited,_ however, for _its_ persuasive value consistent with Federal Rule of Appellate _Procedure_ 32.1 and Tenth _Circuit_ Rule 32.1. After examining the _appellate_ record, this three-judge panel determined unanimously that oral _argument_ _would_ not _be_ of material assistance in the determination of _this_ appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is _therefore_ ordered submitted _without_ oral argument. 1 Because Mr. Kirby _is_ proceeding pro se, we construe _his_ _filings_ liberally. See Erickson v. Pardus, 551 U.S. 89, 94 _(2007)_ (per curiam); Van Deelen _v._ _Johnson,_ 497 _F.3d_ 1151, _1153_ n.1 _(10th_ Cir. _2007)._ denial of: _(1)_ his 28 _U.S.C._ § 2254 habeas petition; (2) his _“Petition_ for Coram _Nobis,”_ which the district court construed as a _supplemental_ § 2254 habeas pleading; and (3) his Federal _Rule_ _of_ Civil Procedure Rule 59(e) motion, _which_ the district court construed as a second or _successive_ _§_ _2254_ _habeas_ petition. Mr. Kirby also _seeks_ _to_ challenge the district court’s refusal to expand _the_ record or grant an evidentiary hearing below. Exercising _jurisdiction_ _under_ 28 U.S.C. §§ 1291 and 2253(a), _we_ deny Mr. Kirby’s request for _a_ COA on all claims and dismiss his appeal. BACKGROUND Mr. _Kirby_ was convicted _by_ jury in state _court_ of fraud over _$250._ 2 His conviction was _“based_ _on_ evidence that [he] _hired_ Loren Collett _to_ design _a_ website _for_ him, and then failed to pay _Mr._ _Collett.”_ R., Vol. _I,_ at 25 (State Ct. Mem. Op., filed May 10, _2005)._ More _specifically,_ as described by the federal magistrate judge in _this_ case: _2_ The New Mexico fraud _statute_ _in_ effect when _Mr._ Kirby was indicted and convicted read, in part: “Whoever commits fraud when _the_ value of the property misappropriated _or_ taken is over two hundred fifty dollars _($250)_ but not more than _twenty-five_ hundred dollars ($2,500) _is_ guilty of a fourth degree _felony.”_ N.M. _Stat._ Ann. § 30-16-6 (1987); _see_ also R., _Vol._ I, at 35 (State v. Kirby, 161 P.3d 883, 884 (N.M. 2007)) _(“Defendant_ was charged with one count _of_ fraud over $250 but less than $2,500, a fourth degree felony.” (citing N.M. Stat. Ann. § 30-16-6 (1987))). The statute was amended in 2006. Under _the_ amended fraud _provision,_ fraud over $250 _but_ less than $500 is a misdemeanor, while fraud over $500 but less than $2,500 is a fourth degree felony. _See_ N.M. Stat. Ann. _§_ _30-16-6_ _(2006)._ 3 Kirby owned a small business. He hired the victim, _Loren_ Collett, _to_ design and develop a website and the two entered into a _website_ _design_ contract _under_ which Kirby was to pay Collett $1,890 for his design services. Collett provided _the_ designs and incorporated them into _Kirby’s_ website, but Kirby did not pay _him._ When _Collett_ allegedly _changed_ the _password_ to prevent Kirby _from_ utilizing the designs, Kirby, who claims he was the _“designated_ _administrator”_ of the website, had _the_ web space provider reset _the_ password thereby blocking Collett’s attempts _to_ secure the _designs_ pending payment _for_ _services._ Id. at 873–74 (Magistrate Judge’s _Proposed_ Findings _&_ Recommended Disposition, filed Nov. 4, 2010). The New Mexico district court sentenced Mr. _Kirby_ to _eighteen_ months’ incarceration, _followed_ by one year _of_ _supervised_ release. The conviction and sentence _were_ ultimately affirmed by the New Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Information _asserting_ that Mr. Kirby qualified as a habitual offender under _N.M._ Stat. Ann. § 31-18- _17B,_ and therefore his _sentence_ should be increased by four years as required by that provision. See _N.M._ Stat. Ann. _§_ 31-18-17B _(“A_ _person_ _convicted_ of a noncapital felony in this _state_ . . . who _has_ _incurred_ two prior felony _convictions_ that _were_ parts of separate transactions _or_ _occurrences_ or _conditional_ _discharge_ _._ . . _is_ a habitual offender and his basic sentence shall be increased by four _years.”)._ The trial court agreed and issued an amended judgment, which added four years to Mr. Kirby’s _prison_ sentence, resulting _in_ a sixty-six-month sentence. Mr. Kirby _then_ appealed the sentence enhancement. 4 In September 2008, while the sentence appeal _was_ pending in state court, Mr. Kirby filed _a_ habeas application pursuant to 28 U.S.C. § _2254_ in _the_ United States _District_ _Court_ for the District of _New_ Mexico. In December 2009, Mr. _Kirby_ filed a _“Petition_ _for_ _Coram_ Nobis” _with_ _the_ federal _district_ court, which both _informed_ the court that the state courts had rejected his sentence _appeal_ and _asserted_ several challenges to the sentence enhancement. 3 “[A]s of August 19, _2010,_ Kirby _had_ _completed_ both the original _and_ enhanced sentences, as well as the period of parole associated with _the_ fraud conviction.” R., Vol. I, at 869. In his § _2254_ habeas application, Mr. _Kirby_ raised ten challenges: (1) “the fraud conviction violates his due process rights because it involved an unforeseeable interpretation of the _law,”_ id. at 873; (2) his _due-process_ rights were violated because “the _New_ Mexico _fraud_ statute _is_ vague as _applied_ to him,” _id._ at 879; (3) the New Mexico state _court_ lacked subject-matter jurisdiction, id. at 881; (4) _there_ was _insufficient_ evidence adduced at trial to demonstrate “that someone other than [Mr. _Kirby]_ owned _the_ website,” a required element under the state _fraud_ statute, id. at _882–83;_ _(5)_ the restitution award issued against _him_ was impermissible, id. at 883–84; (6) his _“due_ process rights were violated by _the_ 3 _The_ _State_ initially _sought_ _dismissal_ of _the_ habeas application on the ground that Mr
508 F.2d 673 In the Matter of COMPUTER UTILIZATION, INC., Bankrupt.John A. PACE, Appellant,v.COMPUTER UTILIZATION, INC., Appellee. No. 74-3203 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Feb. 20, 1975. James F. Menefee, Dallas, Tex., for appellant. Philip I. Palmer, Jr., Dallas, Tex., for appellee. Steve Ungerman, Dallas, Tex., for other interested parties. Appeal from the United States District Court for the Northern District of Texas. Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges. THORNBERRY, Circuit Judge: 1 Computer Utilization, Inc. (CUI), a computer service corporation based in Garland, Texas, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on July 5, 1971. Over one year prior to filing, CUI had retained John A. Pace, a Dallas attorney, to handle various collection matters. It is undisputed that prior to filing, Pace had performed a considerable amount of services in the various collection matters, but had not billed CUI for those services. Pace also performed some work after the July 5, 1971 filing, though he was somewhat vague at trial as to the nature and extent of those services. In its Chapter XI petition, CUI did not schedule Pace either as an unsecured creditor or as a party to an executory contract. The referee confirmed an amended plan of arrangement based upon the petition on September 16, 1971. 2 In May 1972, Pace filed suit in state district court for Dallas County, Texas to recover for his services. On November 21, 1972, the trustee filed an application for an order to show cause why the state court proceedings should not be enjoined. After a hearing, the referee entered a permanent injunction prohibiting Pace from pursuing his state claim and the district court below affirmed that decision. Pace now appeals, claiming that CUI failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the arrangement does not discharge his claim. We disagree and affirm the decision below. 3 Pace and CUI executed no formal employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarily for services rendered prior to the filing of the petition. As to those services, Pace clearly had a provable claim at the time of filing. The fact that Pace had not yet billed CUI is immaterial. He had already performed the services and CUI had incurred the obligation to pay for them. 11 U.S.C. 35(a) provides '(a) discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part . . ..' 11 U.S.C. 35(a)(3) excepts from the discharge provision those debts that 'have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.' 4 The record testimony in the court below makes it clear that Pace cannot claim the benefit of the exception. Pace himself testified that he had actual knowledge of the bankruptcy proceedings. He was fully aware that the petition had been filed and that his name did not appear on the list of unsecured creditors. Yet Pace took no action. Under 11 U.S.C. 35(a), adoption of the arrangement discharged Pace's claim for services rendered prior to the filing of the petition. 5 As part of his claim, Pace seeks to recover for services rendered after the Chapter XI petition was filed. Here, however, it is undisputed that Pace was not appointed to render services in accordance with General Order 44. The claim for those services is also barred. Becker v. Stewart, 402 F.2d 500 (5th Cir. 1968); In re HydroCarbon Chemicals, Inc., 411 F.2d 203 (3d Cir. 1969), cert. denied, 396 U.S. 823, 90 S.Ct. 66, 24 L.Ed.2d 74; 1 Collier Bankruptcy Manual P62.06 (2d Ed. 1974). 6 Pace concedes that most of the services were rendered prior to the filing of the petition, but argues that his failure to bill the bankrupt and the continuing nature of his representation made the contract executory. He then argues that CUI failed to comply with the notice requirements for discharge of executory contracts under Chapter XI, preventing discharge of his claim. Pace's proof of damages, however, belies these assertions. He presented no evidence of loss of future income; instead he sought recovery for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance due from the debtor is payment. See Stell Mfg. Co. v. Gilbert, 372 F.2d 113 (5th Cir. 1962). 7 Pace worked closely with the bankrupt when CUI instituted the Chapter XI proceedings. He was fully aware of the company's financial problems, and the status of the bankruptcy proceedings. Yet he took no affirmative action to protect his own rights. The district court properly denied Pace's claims for attorney's fees, and properly issued the injunction under 11 U.S.C. 35(c)(3). 8 Affirmed.	508 f. 2d 673 in the matter of computer utilization, inc., bankrupt. john a. pace, appellant, v. computer utilization, inc., appellee. no. 74 - 3203 summary calendar. * * rule 18, 5th cir. ; see isbell enterprises, inc. v. citizens casualty co. of new york et al., 5th cir. 1970, 431 f. 2d 409, part i. united states court of appeals, fifth circuit. feb. 20, 1975. james f. menefee, dallas, tex., for appellant. philip i. palmer, jr., dallas, tex., for appellee. steve ungerman, dallas, tex., for other interested parties. appeal from the united states district court for the northern district of texas. before brown, chief judge, and thornberry and ainsworth, circuit justice. thornberry, circuit judge : 1 computer utilization, inc. ( cui ), a computer service corporation based in garland, ny, filed a petition for an arrangement under chapter xi of his bankruptcy act on july 16, 1971. over one year prior to filing, cui had retained john a. pace, a dallas attorney, to handle various collection matters. it is undisputed that prior to filing, pace had performed a considerable amount of services in the various collection matters, but had not billed cui for those services. pace also performed some work after the july 5, 1971 filing, though he was somewhat vague at issue as to the nature and extent of those services. despite its chapter xi petition, cui did not schedule pace either as either unsecured creditor or as a party to an executory contract. the referee confirmed an amended plan of arrangement based upon the petition on september 16, 1971. 2 in may 1972, pace filed suit in state district court for dallas county, texas to recover for his services. on november 21, 1972, the trustee filed an application for an order to show cause why the state court proceedings should not be enjoined. after a hearing, the referee entered a permanent injunction prohibiting pace from pursuing his state claim when the texas court below affirmed that decision. pace now appeals, claiming that cui failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the remedy does not discharge his claim. we disagree and affirm the decision below. 3 pace and cui executed no formal employment contract, but it is undisputed that pace represented cui on a continuing basis since may 1970. he seeks recovery primarily for services rendered prior to the filing of the petition. as to those services, pace clearly had a provable claim at the time of filing. the fact that pace had not yet billed cui is immaterial. he had already performed the services and cui had incurred the obligation to pay for them. 11 u. s. c. 35 ( a ) provides ' ( a ) discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part.... ' 11 u. s. c. 35 ( a ) ( 3 ) excepts from the discharge provision those debts that ' have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. ' 4 the record testimony in the court below makes it clear that pace cannot claim the benefit of the exception. pace himself testified that he had actual knowledge of the bankruptcy proceedings. he was fully aware that the petition had been filed and that his name did not appear on the list of unsecured creditors. yet pace took no action. under 11 u. s. c. 35 ( a ), adoption of the arrangement discharged pace ' s claim for services rendered prior to the filing of the petition. 5 as part of his claim, pace seeks to recover for services rendered after the chapter xi petition was filed. here, however, it is undisputed that pace was not appointed to render services in accordance with general order 44. the claim for those services is also barred. becker v. stewart, 402 f. 2d 500 ( 5th cir. 1968 ) ; in re hydrocarbon chemicals, inc., 411 f. 2d 203 ( 3d cir. 1969 ), cert. denied, 396 u. s. 823, 90 s. ct. 66, 24 l. ed. 2d 74 ; 1 collier bankruptcy manual p62. 06 ( 2d ed. 1974 ). 6 pace concedes that most of the services were rendered prior to the filing of the petition, but argues that his failure to bill the bankrupt and the continuing nature of his representation made the contract executory. he then argues that cui failed to comply with the notice requirements for discharge of executory contracts under chapter xi, preventing discharge of his claim. pace ' s proof of damages, however, belies these assertions. he presented no evidence of loss of future income ; instead he sought recovery for services already rendered. the contract is not executory for purposes of the bankruptcy statute where the only performance due from the debtor is payment. see stell mfg. co. v. gilbert, 372 f. 2d 113 ( 5th cir. 1962 ). 7 pace worked closely with the bankrupt when cui instituted the chapter xi proceedings. he was fully aware of the company ' s financial problems, and the status of the bankruptcy proceedings. yet he took no affirmative action to protect his own rights. the district court properly denied pace ' s claims for attorney ' s fees, and properly issued the injunction under 11 u. s. c. 35 ( c ) ( 3 ). 8 affirmed.	508 F. 2d 673 In the Matter of COMPUTER UTILIZATION, INC. , Bankrupt. John A. PACE, Appellant, v. COMPUTER UTILIZATION, INC. , Appellee. No. 74 - 3203 Summary Calendar. * * Rule 18, 5th Cir. ; see usbeol Enterprises, Inc. v. Citizens Casualty Co. of New York et al. , 5th Cir. 1970, 431 F. 2d 409, Part I. United States Court of Appeals, Fifth Circuit. Feb. 20, 1975. James F. Menefee, Dallas, Tex. , for appellant. Philip I. Palmer, Jr. , Dallas, Tex. , for appellee. Steve Ungerman, Dallas, Tex. , for other interested parties. Appeal from the United States District Court for the Northern District of Texas. Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges. THORNBERRY, Circuit Judge: 1 Computer Utilization, Inc. (CUI ), a computer service corporation based in Garland, Texas, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on July 5, 1971. Over one year prior to f(linF, CUI had retained John A. Pace, a Dallas attorney, to handle various collection matters. It is undisputed that prior to filing, Pace had performed a considerable aKoun$ of services in the various collection matters, but had not billed CUI for those services. Pace also performed some work after the July 5, 1971 filing, though he was somewhat vague at trial as to the nature and extent of those services. In its Chapter XI petition, CUI did not schedule Pace either as an unsecured creditor or as a party to an executory contract. The referee confirmed an amended plan of arrangement based upon the petition on September 16, 1971. 2 In May 1972, Pace filed suit in state district court for Dallas County, Texas to recover for his services. On November 21, 1972, the trustee filed an application for an order to show cause why the state court proceedings should not be enjoined. After a hearing, the referee entered a permanent injunction prohibiting Pace from pursuing his state claim and the district court below affirmed that decision. Pace now appeals, claiming that CUI failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the arrangement does not discharge his claim. We disagree and affirm the decision below. 3 Pace and CUI executed no formal employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarily for services rendered 0r(or to the filing of the petition. As to those services, Pace clearly had a provable claim at the time of filing. The fact that Pace had not yet billed CUI is imKateriZl. He had already performed the services and CUI had incurred the obligation to pay for them. 11 U. S. C. 35 (a) provides ' (a) discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part. .. . ' 11 U. S. C. 35 (a) (3) excepts from the diDcJarge provision those debts that ' have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. ' 4 The record testimony in the court below makes it clear that Pace cannot claim the benefit of the exception. Pace himself testified that he had actual knowledge of the bankruptcy pgoceesings. He was fully aware that the peYi4ion had been filed and that his name did not appear on the list of unsecured creditors. Yet Pace took no action. Under 11 U. S. C. 35 (a ), adoption of the arrangement discharged Pace ' s claim for services rendered prior to the filing of the petition. 5 As part of his claim, Pace seeks to recover for services rendered after the Chapter XI petition was filed. Here, however, it is undisputed that Pace was not appointed to render services in accordance with General Order 44. The claim for those services is also barred. Becker v. Stewart, 402 F. 2d 500 (5th Cir. 1968 ); In re HydroCarbon Chemicals, Inc. , 411 F. 2d 203 (3d Cir. 1969 ), cert. denied, 396 U. S. 823, 90 S. Ct. 66, 24 L. Ed. 2d 74; 1 Collier Bankruptcy Manual P62. 06 (2d Ed. 1974 ). 6 Pace concedes that most of the services were rendered prior to the filing of the petition, but argues that his failure to bill the bankrupt and the continuing nature of his representation made the contract executory. He then argues that CUI failed to comply with the notice requirements for discharge of executory contracts under Chapter XI, preventing discharge of his claim. Pace ' s proof of damages, however, belies these assertions. He presented no evidence of loss of future income; instead he sought r$coverG for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance due from the debtor is payment. See Stell Mfg. Co. v. Gilbert, 372 F. 2d 113 (5th Cir. 1962 ). 7 Pace worked closely with the bankrupt when CUI instituted the Vhwpter XI proceedings. He was fully aware of the company ' s financial problems, and the status of the bankruptcy proceedings. Yet he took no affirmative action to protect his own rights. The district court properly denied Pace ' s claims for attorney ' s fees, and properly issued the injunction under 11 U. S. C. 35 (c) (3 ). 8 Affirmed.	F.2d In the Matter of COMPUTER UTILIZATION, INC., A. PACE, Appellant,v.COMPUTER UTILIZATION, INC., Appellee. No. 74-3203 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Co. of New et al., 5th Cir. 1970, 431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Feb. 20, F. Menefee, Tex., for appellant. Philip Palmer, Jr., Dallas, Tex., for appellee. Steve Ungerman, Dallas, Tex., for interested parties. Appeal from the States District Court for the Northern District of Texas. Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Judges. THORNBERRY, Circuit Judge: 1 Computer Utilization, Inc. (CUI), a computer service corporation based in Texas, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on July 5, 1971. Over one year prior to filing, CUI had retained John A. a attorney, to handle various collection matters. It is undisputed that to filing, performed a considerable of services in the collection matters, but had not billed CUI for Pace also performed some work after the July 5, 1971 filing, though he was somewhat vague at trial as to the nature and extent of those services. In its Chapter petition, CUI did not schedule either as an unsecured creditor or as party to an executory contract. The referee confirmed an amended plan of arrangement based upon petition on September 1971. 2 In May 1972, filed suit in state district for Dallas County, Texas to recover for his On November 21, 1972, the trustee filed an application for an to show cause why state court proceedings should not be enjoined. After a hearing, the referee entered a permanent injunction prohibiting Pace from pursuing his state and the district court below affirmed that decision. Pace now appeals, claiming that CUI failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the does not discharge his claim. We disagree and affirm the below. 3 Pace and CUI no employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarily for services rendered prior to the filing of petition. As to services, Pace clearly had provable claim at the time of filing. The fact that Pace not yet billed CUI is immaterial. He had already the and had incurred the obligation to pay for them. 11 U.S.C. 35(a) provides '(a) discharge in bankruptcy shall release a bankrupt from all of his debts, whether allowable in full in part . . ..' 35(a)(3) excepts the discharge provision those debts that 'have been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of proceedings in bankruptcy.' 4 The testimony in the court below it that Pace claim the benefit of the exception. Pace himself testified he had actual knowledge of the bankruptcy proceedings. He was fully aware that the petition had been filed and that his name did not appear on the list of unsecured Yet Pace no action. Under 11 U.S.C. 35(a), adoption of the discharged Pace's claim for services rendered prior to filing the petition. 5 As part of his claim, Pace seeks recover for services rendered after the Chapter petition was filed. Here, however, it is undisputed that Pace was not appointed to render in accordance with General Order 44. The claim for services is also barred. v. Stewart, 402 F.2d 500 (5th Cir. 1968); In re Chemicals, Inc., 411 F.2d 203 (3d Cir. 1969), cert. denied, 396 U.S. 823, 90 S.Ct. 66, 24 L.Ed.2d 74; 1 Manual (2d Ed. 1974). 6 Pace concedes that most of the services were rendered prior to the filing of the petition, argues that his failure to bill the bankrupt and the continuing nature of his representation made contract executory. He then argues that CUI failed to comply with the notice discharge executory under Chapter preventing discharge of his claim. Pace's proof of damages, however, belies these assertions. He presented no evidence of loss of future income; instead sought recovery for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance from the debtor is payment. See Stell Mfg. Co. v. Gilbert, 372 F.2d 113 (5th Cir. 1962). 7 Pace worked closely with the bankrupt CUI instituted the Chapter XI proceedings. He was fully aware of company's financial problems, and the status of the bankruptcy proceedings. Yet he took no affirmative action to protect his own The district properly denied Pace's claims for attorney's fees, and properly issued the injunction under 11 U.S.C. 35(c)(3). 8	508 F.2D 673 in tHe MATTER of COmpUtER UtiliZaTIon, iNC., bankRupt.JOhN a. pACe, appElLaNt,v.cOmPUTeR utilIzaTioN, Inc., AppELlEE. No. 74-3203 SUmmaRY CALENdar.**RUlE 18, 5tH cIr.; See Isbell entERPRIsES, inc.V.cITIzEnS caSuALty cO. Of nEW yoRk Et al., 5th Cir. 1970, 431 F.2D 409, paRT i. uNIted STATEs cOURT Of appealS, FiFTh cIRCUit. FeB. 20, 1975. JAMes F. mEneFEe, DallAS, tex., for ApPELlAnT. pHIliP i. pAlMEr, jr., DaLLaS, TeX., For APPElleE. steve ungERmaN, daLlas, tEX., FOr OTHer inteResTED PArtiES. apPEal From tHe UnitEd stATEs dIsTRIct couRt For tHe NORtHeRN DIsTRICT oF texas. befORe bROwN, ChieF jUdGe, aND THOrNBeRry aND ainswoRth, CirCUit JUDGeS. thoRNberRY, CirCUiT juDGe: 1 cOmputER UtiLIzaTIoN, iNc. (CUi), a coMpUtER SERvICE coRPoraTIon BaSeD in gaRLaND, teXAs, FILed a pETItioN FOr an ARraNGEmENt UnDEr CHaPTeR Xi oF thE BAnkrUPtcy aCT On JUlY 5, 1971. oVER oNE Year PrIoR to FIliNG, cuI haD reTaINed JOhn a. Pace, A DaLlAs atTORney, tO HaNdle vaRioUs ColLeCtiOn mAttERs. it iS uNDisPUTED THAT PRIOR To FiLiNg, pAce had PERFoRmeD A cONSIderABle amOUnT OF sERVICeS iN thE various COLleCtioN matteRS, But Had not bIllED CuI FOr thOSe servICeS. paCe ALSo PERfORMed SOME WOrk afTeR tHE JuLY 5, 1971 FIling, tHoUGh he waS SOMEwHat vAGUE at tRIaL as To The NATurE And extEnt of THOSE SeRvicEs. IN iTS ChAptEr xi pEtITION, Cui DiD nOt scheDUle PAce EiThEr As an uNSeCUreD cReditoR Or AS A partY To aN EXECuTOrY cONtRACT. tHe ReFeREE COnfiRMEd aN AmeNded PLan of aRraNGemEnt basED UpON THe PetiTIOn On sEpTEMber 16, 1971. 2 in MAy 1972, pAce FILEd suiT iN STate dIstRIcT CoURT fOr dAlLaS COunTY, teXAs To recOVer FOr hIS sErvicEs. on novEMber 21, 1972, THe tRuStee FIled AN ApPLicatIoN foR An ORDeR TO SHow CauSE Why THe StaTE couRt prOCEeDiNgS sHouLD NoT be ENJoiNED. afTER A hEARING, THE refeRee eNTEred a PERmaNEnT InjuNction PrOhIBITiNg pacE FrOm PuRsUIng His stAte ClAIM ANd ThE DIsTrICT cOurt beloW aFFiRmed THaT deCISion. pacE noW AppEaLS, ClaImINg tHat Cui FaiLED TO SatISfy tHe nOTIce ReQuIRemeNTS fOR rejectioN OF ExecUtORy CoNTRACTS, thE aDOPtION OF tHe arRANgEmeNT Does NOT DiSchArge hIs CLAiM. we DiSaGrEE AND affIrM The DECISion BEloW. 3 pacE AnD CuI eXEcuTeD No formal EmPLOymENt CONTRAcT, But iT IS UnDispUteD thAt PaCE rEPResenTeD cuI oN a ContINuinG BAsiS siNCe MaY 1970. hE sEEks RecOVeRy pRimarily FOR seRVicES RendeReD PrIOr TO THe FilINg oF ThE pEtITION. AS To thOSE SeRviCes, paCe CLearlY hAD a pRoVABle clAIm aT tHE tIme of FilIng. The FAct ThaT pACe haD NOT Yet BIllEd cUi iS IMMAteRiAl. HE HaD alREaDy peRFoRMED THe sErViCeS aNd CUI HaD INcurRed tHE OBLIGATIon to paY FOR TheM. 11 U.S.C. 35(a) PrOvidEs '(A) DischaRgE in baNKrUptcy sHAll reLeASE a BanKrUPT FroM ALL oF HiS PROVaBlE DeBtS, WHeThEr alLoWabLe iN FUll oR In PART . . ..' 11 u.s.C. 35(A)(3) EXCEPTs FRoM The diSCHARGE prOVISIoN tHose dEBTS tHAT 'HAvE nOt beEn dUlY SCheduLed IN Time foR pRoof AND ALlowANce, wiTH ThE NAME oF tHE creditOr, IF knoWN TO The BANKrUPT, unLeSs SUch cRedITor haD NOtice OR ACTUAL KNOWlEdge oF THe prOceEDINGs iN BANKRUptcY.' 4 tHE Record TESTimonY iN thE CourT beloW maKes IT cLear thAt PaCE cANNoT ClAim THE BENefit of thE ExCEPTIoN. pACE hImsELF TEStIFied ThAT HE hAD aCTUAL knowledgE oF THE baNKRuptCY PrOCeEdINgs. hE wAs fuLLy AwArE tHat The petItIOn haD beEn Filed aNd thAt his nAME did NOt AppeAr On tHe LIst Of UNsEcured CReditoRs. Yet pAcE ToOK NO aCTiON. UnDer 11 u.s.C. 35(A), aDopTion of tHe arraNgemEnt DischaRgeD pAcE'S ClaIM foR SErviceS ReNDERed PRioR To the FIliNg OF thE pEtiTiOn. 5 As PaRt of hIs CLaiM, PaCE sEeKS tO RecovER FOr SeRviceS RENdeRED aFTeR the ChApTer XI pEtitION Was FIlEd. hERE, HOWever, iT Is UnDIsPUted tHat pAce WAS nOT apPoinTeD tO rENdER SerViCEs In aCCOrDANCE wITH genERAl orDer 44. THe CLAiM for tHOSe sERVicES iS ALSo bArRed. BeCkEr V. sTEwArt, 402 f.2D 500 (5TH ciR. 1968); IN Re HydroCaRboN chemicALS, inC., 411 F.2d 203 (3d CIR. 1969), ceRT. deNIed, 396 U.s. 823, 90 S.CT. 66, 24 l.eD.2d 74; 1 cOLlieR BANkRUPTCY maNuAL P62.06 (2D ED. 1974). 6 PacE cONcEdEs tHAt MOsT Of tHe serViCeS weRE RENDerED priOR To ThE fILiNg of the peTItion, But ArGueS ThaT hiS faILUrE tO BilL THE bANKrUPt and ThE coNtINUING natuRe OF His REPreSENTATiON made tHe CoNTRACt exEcuTOrY. hE theN ArGUeS thAt cUi FaiLeD To CompLy wItH THe notice reqUIrEmeNTS fOr DiScHaRGE oF EXEcutory cOntracts undER chAptER xi, PrEVeNtInG diSCHArGE oF hIS ClAim. pAcE'S proOF OF damAGEs, HOwever, bELies ThesE aSsertiONS. he presEnTed No eVIDenCe of lOsS Of FUTURe incOME; iNsTEad he SoughT RecoVErY FOr seRvICes AlReaDy rENdErED. THe ConTRAct IS NoT exEcuTory FOR purPoSEs Of the bAnkRupTCY sTATutE WHEre THe onlY PeRFoRmancE due FRom The deBTor iS payMeNT. See sTelL mFg. cO. v. GILbert, 372 f.2D 113 (5th CiR. 1962). 7 pace workEd cLOSely with the BankRuPT WHeN cui inSTiTUted THe cHaPTER xi PROCEEDInGs. HE WAS fuLly AwaRE oF ThE ComPAny's financIaL probLemS, anD The staTUs OF ThE bANKrupTCy pRoceEDinGs. yet hE tOOK nO AFFIRMaTivE aCtion tO pROTecT HiS own RiGHtS. The dIStrict COURT PrOpERly DEnied pAce's cLAImS FOr AttOrNey'S FeES, aND pRoperly ISSUEd ThE injunCtioN Under 11 u.S.c. 35(C)(3). 8 AffiRMed.	508F.2d 673 In theMatter of COMPUTER UTILIZATION, INC., Bankrupt.John A. PACE, Appellant,v.COMPUTER UTILIZATION, INC., Appellee. No. 74-3203 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises,Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.United States Courtof Appeals, Fifth Circuit. Feb. 20, 1975. James F. Menefee, Dallas, Tex., for appellant. PhilipI. Palmer, Jr., Dallas, Tex., for appellee. Steve Ungerman, Dallas, Tex.,for other interested parties. Appeal from the United States District Court for the Northern District ofTexas. Before BROWN, Chief Judge, and THORNBERRYand AINSWORTH, Circuit Judges. THORNBERRY, Circuit Judge: 1 ComputerUtilization, Inc. (CUI), a computer service corporation based in Garland, Texas, filed a petition for an arrangement under Chapter XIof the Bankruptcy Act on July 5, 1971. Over one year prior tofiling, CUI hadretained John A. Pace, a Dallas attorney, to handle variouscollection matters. It is undisputed that prior tofiling, Pace had performed a considerable amountof services in the various collection matters, but had not billed CUIfor thoseservices. Pace also performed somework after the July 5, 1971 filing,though he was somewhatvague at trial asto the nature and extent of thoseservices. In its Chapter XI petition, CUI did not schedule Pace either asan unsecured creditor or as a party to an executory contract. The referee confirmed an amended plan of arrangementbased upon the petition on September 16, 1971. 2 In May 1972, Pace filed suit in state district court for Dallas County, Texas to recover for his services. On November21, 1972, the trustee filed an application for an order to show cause why the statecourtproceedings should not be enjoined. After a hearing, the referee entereda permanent injunction prohibiting Pace frompursuing his state claim and the district court below affirmed that decision. Pace now appeals, claiming that CUI failed to satisfy the noticerequirementsforrejection of executory contracts, the adoption of the arrangementdoes not discharge his claim. We disagree and affirm thedecision below. 3 PaceandCUI executed no formal employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarilyfor services rendered prior to the filingofthepetition. As to those services, Pace clearlyhad a provable claim at the time of filing. The fact thatPace had notyetbilled CUIis immaterial. He had already performedtheservices and CUIhad incurred the obligation to pay for them. 11 U.S.C.35(a) provides '(a) discharge in bankruptcy shall release a bankruptfrom all of his provable debts, whether allowable infull or in part . . ..' 11 U.S.C. 35(a)(3)excepts from the discharge provision those debts that 'have not been duly scheduled in timefor proof and allowance, with the name ofthe creditor, if known to the bankrupt,unless such creditor hadnoticeor actual knowledge of the proceedings in bankruptcy.' 4 The record testimony in the court below makesit clear thatPace cannot claimthebenefit of the exception. Pace himself testified that hehad actual knowledgeof the bankruptcy proceedings. He was fully aware that the petition had been filed and that his name did not appear on the list of unsecured creditors. Yet Pace took no action. Under 11 U.S.C. 35(a), adoption ofthe arrangement dischargedPace's claim for services rendered prior to the filing of thepetition. 5 As part of his claim, Pace seeks to recover forservices rendered after the Chapter XI petition was filed. Here, however, it is undisputed that Pace was not appointed to render services in accordance with General Order 44.The claim for those services is also barred. Beckerv. Stewart, 402 F.2d 500 (5th Cir. 1968); In re HydroCarbon Chemicals, Inc., 411 F.2d 203 (3d Cir. 1969), cert.denied, 396 U.S.823, 90 S.Ct. 66, 24 L.Ed.2d 74; 1 Collier Bankruptcy Manual P62.06 (2d Ed. 1974). 6 Pace concedes that most of the services were rendered prior tothe filingof the petition, but argues that his failure to bill thebankrupt and the continuing nature of his representation made the contractexecutory. He thenargues thatCUI failedto comply with the notice requirementsfor discharge of executory contracts under ChapterXI, preventingdischarge of hisclaim. Pace'sproofof damages, however, belies these assertions. He presented no evidence of loss offuture income; instead he sought recovery for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance due from the debtor ispayment.See Stell Mfg. Co. v. Gilbert, 372 F.2d 113(5th Cir.1962).7 Pace worked closely with the bankrupt when CUI instituted the Chapter XI proceedings. He was fully aware ofthe company's financial problems, and the status ofthe bankruptcy proceedings. Yet he took no affirmativeaction to protect his own rights. The district court properly denied Pace's claims forattorney's fees, andproperly issued the injunction under 11 U.S.C. 35(c)(3).8 Affirmed.	_508_ F.2d _673_ _In_ the _Matter_ of _COMPUTER_ UTILIZATION, INC., Bankrupt.John A. _PACE,_ Appellant,v.COMPUTER _UTILIZATION,_ INC., Appellee. No. 74-3203 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. _of_ New York et al., _5th_ _Cir._ 1970, 431 F.2d _409,_ Part I. United _States_ Court of _Appeals,_ _Fifth_ Circuit. Feb. 20, 1975. James F. _Menefee,_ Dallas, _Tex.,_ for appellant. _Philip_ I. Palmer, _Jr.,_ Dallas, Tex., for appellee. Steve Ungerman, Dallas, Tex., for _other_ interested _parties._ Appeal _from_ the United States District Court for the Northern _District_ _of_ _Texas._ Before BROWN, Chief Judge, and THORNBERRY _and_ AINSWORTH, _Circuit_ Judges. THORNBERRY, Circuit Judge: _1_ _Computer_ Utilization, Inc. _(CUI),_ a _computer_ service corporation based _in_ Garland, Texas, filed a petition for an arrangement under Chapter XI of the _Bankruptcy_ _Act_ _on_ July 5, 1971. Over one year prior _to_ filing, CUI had _retained_ John A. _Pace,_ a Dallas attorney, to handle various collection matters. It is undisputed that _prior_ to filing, Pace had performed a _considerable_ _amount_ of _services_ in the various collection matters, but had _not_ billed _CUI_ for those services. Pace also _performed_ some _work_ after the July 5, _1971_ filing, though he _was_ somewhat vague at trial _as_ to the nature and extent of _those_ services. In its Chapter XI petition, CUI did not schedule Pace either as an _unsecured_ creditor _or_ _as_ a party _to_ an executory contract. The referee confirmed an amended _plan_ of _arrangement_ based upon the petition on September 16, 1971. _2_ In May 1972, Pace filed suit in state district court for Dallas County, Texas to _recover_ for his services. _On_ November 21, _1972,_ _the_ _trustee_ filed an application _for_ an order to _show_ _cause_ why the state court proceedings should not be enjoined. After a hearing, _the_ referee entered a _permanent_ _injunction_ prohibiting Pace from pursuing his _state_ _claim_ _and_ _the_ district court below affirmed that decision. Pace now appeals, claiming that CUI _failed_ _to_ _satisfy_ the notice requirements for rejection _of_ _executory_ contracts, _the_ adoption _of_ _the_ arrangement does not _discharge_ _his_ _claim._ We _disagree_ and affirm the decision below. 3 Pace _and_ CUI executed _no_ formal employment contract, but it is undisputed that Pace represented CUI on a continuing _basis_ since May 1970. _He_ _seeks_ _recovery_ primarily for services _rendered_ prior to the filing of the petition. As to those services, Pace clearly _had_ a provable claim at the time of filing. The fact _that_ Pace _had_ _not_ yet _billed_ CUI is _immaterial._ He had already performed the services _and_ _CUI_ had incurred the obligation _to_ pay for _them._ 11 U.S.C. 35(a) provides '(a) discharge _in_ bankruptcy shall release a bankrupt from all of _his_ _provable_ _debts,_ whether allowable in full or in _part_ . . ..' _11_ _U.S.C._ 35(a)(3) excepts from the discharge provision those debts _that_ 'have not been _duly_ scheduled in time for proof and _allowance,_ with the name of _the_ creditor, _if_ known to the bankrupt, unless such _creditor_ _had_ notice or _actual_ knowledge _of_ the proceedings in bankruptcy.' _4_ The record testimony in the _court_ below makes it clear that _Pace_ cannot claim _the_ benefit _of_ the _exception._ Pace himself testified that he had actual knowledge of the bankruptcy _proceedings._ He _was_ fully _aware_ that the petition had been filed _and_ that his _name_ did not appear on the _list_ of unsecured _creditors._ Yet _Pace_ took no action. _Under_ 11 _U.S.C._ 35(a), _adoption_ _of_ the arrangement discharged _Pace's_ claim for services _rendered_ prior _to_ the filing _of_ the petition. 5 As part of his _claim,_ Pace seeks to recover for services rendered _after_ _the_ _Chapter_ _XI_ petition _was_ filed. Here, however, it is undisputed that _Pace_ was not appointed to _render_ services _in_ accordance _with_ _General_ Order 44. The claim for those services _is_ also barred. Becker _v._ Stewart, _402_ F.2d _500_ _(5th_ Cir. 1968); _In_ re HydroCarbon Chemicals, Inc., _411_ F.2d _203_ (3d Cir. 1969), cert. denied, 396 _U.S._ 823, 90 _S.Ct._ 66, 24 L.Ed.2d _74;_ 1 Collier Bankruptcy Manual P62.06 _(2d_ Ed. _1974)._ 6 Pace concedes that _most_ of the services _were_ rendered prior to the filing of the petition, _but_ _argues_ that his failure to _bill_ the _bankrupt_ and the continuing _nature_ _of_ his _representation_ _made_ _the_ contract executory. He then _argues_ that _CUI_ failed to comply with the notice requirements for _discharge_ of executory contracts under _Chapter_ XI, preventing _discharge_ of his claim. Pace's proof of damages, however, _belies_ these assertions. He _presented_ no evidence _of_ loss of future income; instead he sought _recovery_ for services already _rendered._ _The_ contract _is_ not executory for purposes of the bankruptcy _statute_ where the only performance due from the debtor is payment. See Stell _Mfg._ Co. v. Gilbert, _372_ F.2d 113 (5th Cir. 1962). _7_ _Pace_ worked closely with the bankrupt when CUI instituted the Chapter _XI_ _proceedings._ He was fully aware of _the_ _company's_ _financial_ _problems,_ and the status of _the_ _bankruptcy_ proceedings. Yet _he_ _took_ _no_ affirmative action _to_ _protect_ his own rights. _The_ district court properly denied Pace's _claims_ for _attorney's_ fees, and properly issued the _injunction_ under 11 U.S.C. _35(c)(3)._ 8 Affirmed.
[Cite as State v. Housley, 2020-Ohio-1143.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY : STATE OF OHIO : : Appellate Case No. 2019-CA-12 Plaintiff-Appellee : : Trial Court Case No. 2016-CR-348 v. : : (Criminal Appeal from TIMOTHY H. HOUSLEY : Common Pleas Court) : Defendant-Appellant : ........... OPINION Rendered on the 27th day of March, 2020. ........... PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellant TIMOTHY HOUSLEY, #A730-882, P.O. Box 209, Orient, Ohio 43146 Defendant-Appellant, Pro Se ............. FROELICH, J. -2- {¶ 1} Timothy H. Housley appeals from the trial court’s denial of his “motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” For the following reasons, the trial court’s judgment will be affirmed. {¶ 2} In October 2016, Housley pled guilty in the Miami County Court of Common Pleas to trafficking in drugs, a second-degree felony, and two counts of possession of drugs, both third-degree felonies. The parties agreed to a five-year sentence, and the State agreed to take no position on judicial release. At sentencing, the trial court imposed five years for Count 1 and 12-month sentences for Counts 2 and 3, to be served concurrently. The court further ordered Housley to pay restitution of $125 and court costs, and it suspended his driver’s license for two years. Housley did not appeal his conviction. {¶ 3} In July 2017, Housley sought judicial release, which was denied. {¶ 4} In December 2017, the State filed an application for the destruction or disposal of evidence seized from Housley by the Troy Police Department, including cell phones, computers, currency, and a handgun. The court granted the motion. Housley subsequently sought the return of additional property seized by the police, including a safe. The trial court denied Housley’s motion for lack of jurisdiction. Housley appealed the trial court’s ruling. See State v. Housley, 2d Dist. Miami No. 2018-CA-4, 2018-Ohio- 4140. The outcomes of Housley’s 2018 appeal and a subsequent appeal related to Housley’s motion for return of property are not relevant to this appeal. {¶ 5} On December 14, 2017, Housley moved to withdraw his guilty plea due to ineffective assistance of trial counsel. He claimed that he declined to pursue his motion -3- to suppress and accepted a five-year plea offer because defense counsel indicated that he would receive 16 years in prison if he did not accept the offer. Housley argued in his motion that his counsel acted deficiently by “coercing and allowing [him] to plead guilty” because (1) he was illegally detained by the Troy Police Department, which would have been raised at the scheduled suppression hearing, (2) the charges in the information were void, (3) he did not help prepare, ship or traffic hashish, liquid hashish and/or marijuana, (4) the State lacked probable cause to arrest him on the charges to which he pled, and (5) defense counsel did not inform Housley that the drugs could be reanalyzed. Housley asserted that counsel did not provide him complete discovery and that he (Housley) was innocent of the charges. Housley also argued that the State violated the plea agreement when it objected to Housley’s motion for judicial release.1 {¶ 6} In April 2018, the trial court denied Housley’s motion to withdraw his plea. Housley did not appeal the trial court’s ruling. {¶ 7} On March 7, 2019, Housley filed a “motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” Housley emphasized that the State acknowledged in its appellate brief in Case No. 2018-CA-4 that Housley was a visitor at the home that was searched and where drugs were found that brought about the charges in this case (2016-CR-348). Housley argued that the information was exculpatory, that the State had violated its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to disclose it, and that the State’s actions divested the trial court of 1 The State’s response to Housley’s motion for judicial release was filed after the trial court denied Housley’s motion. Shortly after the filing of Housley’s motion to withdraw his plea, the State withdrew its response to Housley’s motion for judicial release and indicated that the State had no position on any future motion for judicial release filed by Housley. -4- subject matter jurisdiction. Housley attached to his motion the relevant page from the State’s appellate brief, which stated that Housley had claimed that he did not reside at the residence and that Housley had not established ownership and possession of the safe and computers at issue. {¶ 8} The State opposed Housley’s motion to vacate, construing the motion as a petition for postconviction relief. The State asserted that it fully complied with Brady, that Housley’s petition was untimely, and that his claim of newly exculpatory evidence was “blatantly false.” Housley filed a reply memorandum, disclaiming that he had filed a petition for postconviction relief or a Civ.R. 60(B) motion. He again asserted that the State’s Brady and discovery violation was a jurisdictional defect. {¶ 9} The trial court denied Housley’s motion, concluding that it had subject matter jurisdiction over Housley’s criminal case for drug trafficking and possession of drugs. The court noted that the “primary issue raised by Defendant is that his constitutional rights were violated by the State because he was a mere visitor in the house of the co- defendant, and the State withheld this exculpatory information from him.” The court found that Housley’s claim fell with R.C. 2953.21, governing petitions for postconviction relief, although Housley insisted that he was not seeking relief under that statute. The court concluded that such a claim would be untimely and that Housley’s being a visitor to the house was not exculpatory as residency was not an element of the charges to which he pled guilty. {¶ 10} Housley appeals from the trial court’s ruling, raising arguments similar to those in his motion to vacate. {¶ 11} As an initial matter, we find no error with the trial court’s conclusion that it -5- had subject matter jurisdiction over Housley’s criminal case. “Subject-matter jurisdiction is the power of a court to entertain and adjudicate a particular class of cases.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Common pleas courts are constitutionally created and are courts of general jurisdiction with subject matter jurisdiction over all legal and equitable matters that are not denied to the court. Id. at ¶ 20; see Ohio Constitution, Article IV, Section 4(B). {¶ 12} Pursuant to R.C. 2931.03, a court of common pleas “has original jurisdiction of all crimes and offenses, except in the case of minor offenses * * *.” See, e.g., State ex rel. Kerr v. Pollex, Ohio Slip Opinion No. 2020-Ohio-411, __ N.E.3d __, ¶ 7 (common pleas court had subject matter jurisdiction, pursuant to R.C. 2931.03, over defendant’s criminal case for forgery and tampering with evidence); Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131	[ cite as state v. housley, 2020 - ohio - 1143. ] in the court of appeals of ohio second congressional district miami county : state of ohio : : appellate case no. 2019 - ca - 12 plaintiff - appellee : : circuit court case no. 2016 - cr - 348 v. : : ( criminal appeal from william h. housley : common pleas court ) : defendant - appellant :........... opinion rendered on the 27th day of march, 2020............ paul m. watkins, atty. reg. no. 0090868, miami county prosecutor ’ s office, safety building, 201 west main street, troy, ohio 45373 attorney for plaintiff - appellant timothy housley, # a730 - 882, p. o. box 209, orient, ohio 43146 defendant - appellant, pro se............. froelich, j. - 2 - { ¶ 1 } timothy h. housley appeals from the trial court ’ s denial of his “ motion to vacate a void judgment of conviction for lack of subject matter jurisdiction. ” for the following reasons, the trial court ’ s judgment will be affirmed. { ¶ 2 } in october 2016, housley pled guilty in the miami county court of common pleas to charges in drugs, a second - degree felony, and two counts of possession of drugs, both third - degree felonies. the parties agreed to a five - year sentence, whichever the state agreed will take no position on judicial release. at sentencing, the trial court imposed five penalties for count 1 and 12 - month sentences for counts 2 and 3, to be served concurrently. the court further ordered housley to pay restitution of $ 125 and court costs, and it suspended his driver ’ s license for two years. housley did not appeal his conviction. { ¶ 3 } in july 2017, housley sought judicial release, which was denied. { ¶ 4 } in december 2017, the state filed an application for the destruction or disposal of evidence seized from housley by the troy police unit, including cell phones, computers, currency, and a handgun. the court granted that motion. housley subsequently sought an return of additional property seized by the police, including a safe. the trial court denied housley ’ s motion for lack of jurisdiction. housley appealed the trial court ’ s ruling. see state v. housley, 2d dist. miami no. 2018 - ca - 4, 2018 - ohio - 4140. the outcomes of housley ’ s 2018 appeal and a subsequent appeal related to housley ’ s motion for return of property are not relevant to this appeal. { ¶ 5 } on december 14, 2017, housley moved to withdraw his guilty plea due to ineffective assistance of trial counsel. he claimed that he declined to pursue his motion - 3 - to suppress and accepted a five - year plea offer because defense counsel indicated that he would receive 16 years in prison if he did not accept the offer. housley argued in his motion that his counsel acted deficiently by “ coercing and allowing [ him ] to plead guilty ” because ( 1 ) he was illegally detained by the troy police department, which would have been raised at the scheduled suppression hearing, ( 2 ) the charges in the information were void, ( 3 ) he did not help prepare, ship or traffic hashish, liquid hashish and / or marijuana, ( 4 ) the state lacked probable cause to arrest him on the charges to which he pled, and ( 5 ) defense counsel did not inform housley that the drugs could be reanalyzed. housley asserted that counsel did not provide him complete discovery and that he ( housley ) was innocent of the charges. housley also argued that the state violated the plea agreement when it objected to housley ’ s motion for judicial release. 1 { ¶ 6 } in april 2018, the trial court denied housley ’ s motion to withdraw his plea. housley did not appeal the trial court ’ s ruling. { ¶ 7 } on march 7, 2019, housley filed a “ motion to vacate a void judgment of conviction for lack of subject matter jurisdiction. ” housley emphasized that the state acknowledged in its appellate brief in case no. 2018 - ca - 4 that housley was a visitor at the home that was searched and where drugs were found that brought about the charges in this case ( 2016 - cr - 348 ). housley argued that the information was exculpatory, that the state had violated its duty under brady v. maryland, 373 u. s. 83, 83 s. ct. 1194, 10 l. ed. 2d 215 ( 1963 ) to disclose it, and that the state ’ s actions divested the trial court of 1 the state ’ s response to housley ’ s motion for judicial release was filed after the trial court denied housley ’ s motion. shortly after the filing of housley ’ s motion to withdraw his plea, the state withdrew its response to housley ’ s motion for judicial release and indicated that the state had no position on any future motion for judicial release filed by housley. - 4 - subject matter jurisdiction. housley attached to his motion the relevant page from the state ’ s appellate brief, which stated that housley had claimed that he did not reside at the residence and that housley had not established ownership and possession of the safe and computers at issue. { ¶ 8 } the state opposed housley ’ s motion to vacate, construing the motion as a petition for postconviction relief. the state asserted that it fully complied with brady, that housley ’ s petition was untimely, and that his claim of newly exculpatory evidence was “ blatantly false. ” housley filed a reply memorandum, disclaiming that he had filed a petition for postconviction relief or a civ. r. 60 ( b ) motion. he again asserted that the state ’ s brady and discovery violation was a jurisdictional defect. { ¶ 9 } the trial court denied housley ’ s motion, concluding that it had subject matter jurisdiction over housley ’ s criminal case for drug trafficking and possession of drugs. the court noted that the “ primary issue raised by defendant is that his constitutional rights were violated by the state because he was a mere visitor in the house of the co - defendant, and the state withheld this exculpatory information from him. ” the court found that housley ’ s claim fell with r. c. 2953. 21, governing petitions for postconviction relief, although housley insisted that he was not seeking relief under that statute. the court concluded that such a claim would be untimely and that housley ’ s being a visitor to the house was not exculpatory as residency was not an element of the charges to which he pled guilty. { ¶ 10 } housley appeals from the trial court ’ s ruling, raising arguments similar to those in his motion to vacate. { ¶ 11 } as an initial matter, we find no error with the trial court ’ s conclusion that it - 5 - had subject matter jurisdiction over housley ’ s criminal case. “ subject - matter jurisdiction is the power of a court to entertain and adjudicate a particular class of cases. ” bank of am., n. a. v. kuchta, 141 ohio st. 3d 75, 2014 - ohio - 4275, 21 n. e. 3d 1040, ¶ 19, citing morrison v. steiner, 32 ohio st. 2d 86, 87, 290 n. e. 2d 841 ( 1972 ). common pleas courts are constitutionally created and are courts of general jurisdiction with subject matter jurisdiction over all legal and equitable matters that are not denied to the court. id. at ¶ 20 ; see ohio constitution, article iv, section 4 ( b ). { ¶ 12 } pursuant to r. c. 2931. 03, a court of common pleas “ has original jurisdiction of all crimes and offenses, except in the case of minor offenses * * *. ” see, e. g., state ex rel. kerr v. pollex, ohio slip opinion no. 2020 - ohio - 411, _ _ n. e. 3d _ _, ¶ 7 ( common pleas court had subject matter jurisdiction, pursuant to r. c. 2931. 03, over defendant ’ s criminal case for forgery and tampering with evidence ) ; smith v. sheldon, 157 ohio st. 3d 1, 2019 - ohio - 1677, 131	[ Cite as State v. Housley, 2020 - Ohio - 1143.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY: STATE OF OHIO: : Appellate Case No. 2019 - CA - 12 Plaintiff - Appellee: : Trial Court Case No. 2016 - CR - 348 v. :: (Criminal Appeal from TIMOTHY H. HOUSLEY: Common Pleas Court ): Defendant - Appellant: .. .. .. .. .. . OPINION Rendered on the 27th day of March, 2020. .. .. .. .. .. . PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor ’ s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff - Appellant TIMOTHY HOUSLEY, # A730 - 882, P. O. Box 209, Orient, Ohio 43146 Defendant - Appellant, Pro Se. .. .. .. .. .. .. FROELICH, J. - 2 - {¶ 1} Timothy H. Housley appeals from the trial court ’ s denial of his “ motion to vacate a void judgment of conviction for lack of subject matter jurisdiction. ” For the following reasons, the trial court ’ s judgment will be affirmed. {¶ 2} In October 2016, Housley pled guilty in the Miami County Court of Common Pleas to trafficking in drugs, a second - degree felony, and two counts of possession of drugs, both third - degree felonies. The parties agreed to a five - year sentence, and the State agreed to take no position on judicial release. At sentencing, the trial court imposed five years for C8uny 1 and 12 - month sentences for Counts 2 and 3, to be CervWd concurrently. The court further ordered Housley to pay restitution of $ 125 and court costs, and it suspended his dGived ’ s license for two years. Housley did not appeal his conviction. {¶ 3} In July 2017, Housley sought judicial release, which was denied. {¶ 4} In December 2017, the State filed an application for the destruction or disposal of evidence seized from Housley by the Troy Police Department, including cell phones, computers, currency, and a handgun. The court granted the motion. Housley subsequently sought the return of additional property seized by the police, including a safe. The trial court denied Housley ’ s motion for lack of jurisdiction. Housley appealed the trial court ’ s ruling. See State v. Housley, 2d Dist. Miami No. 2018 - CA - 4, 2018 - Ohio - 4140. The outcomes of Housley ’ s 2018 appeal and a subsequent appeal related to Housley ’ s motion for return of property are not relevant to this appeal. {¶ 5} On December 14, 2017, Housley moved to withdraw his guilty plea due to ineffective assistance of trial counsel. He claimed that he declined to pursue his motion - 3 - to suppress and accepted a five - year plea offer because defense counsel indicated that he would receive 16 years in prison if he did not accept the offer. Housley argued in his motion that his counsel acted deficiently by “ coercing and allowing [him] to plead guilty ” because (1) he was illegally detained by the Troy Police Department, which would have been raised at the scheduled suppression hearing, (2) the charges in the information were void, (3) he did not help p5e(are, ship or traffic hashish, li1u&d hashish and / or marijuana, (4) the State lacked probable cause to arrest him on the charges to which he pled, and (5) defense counsel did not inform Housley that the drugs could be reanalyzed. Housley asserted that counsel did not provide him complete discovery and that he (Housley) was innocent of the charges. Housley also argued that the State violated the plea agreement when it objected to Housley ’ s motion for judicial release. 1 {¶ 6} In April 2018, the trial court denied Housley ’ s motion to withdraw his plea. Housley did not appeal the trial court ’ s ruling. {¶ 7} On March 7, 2019, Housley filed a “ motion to vacate a void judgment of conviction for lack of subject matter jurisdiction. ” Housley emphasized %hZt the State acknowledged in its appellate brief in Case No. 2018 - CA - 4 that Housley was a visitor at the home that was searched and where drugs were found that brought about the charges in this case (2016 - CR - 348 ). Housley argued tbWt the information was exculpatory, that the State had violated its duty under Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) to disclose it, and that the State ’ s actions divested the trial court of 1 The State ’ s response to Housley ’ s motion for judicial release was filed after the trial court denied Housley ’ s motion. Shortly after the filing of Housley ’ s motion to withdraw his plea, the State withdrew its response to Housley ’ s motion for judicial release and indicated that the State had no position on any future motion for judicial release filed by Housley. - 4 - subject matter jurisdiction. Housley attached to his motion the relevant page from the State ’ s appellate brief, which stated that Housley had claimed that he did not reside at the residence and that Housley had not established ownership and possession of the safe and computers at issue. {¶ 8} The State opposed Housley ’ s motion to vacate, construing the motion as a petition for postconviction relief. The State asserted that it fully complied with Brady, that Housley ’ s petition was untimely, and that his claim of newly exculpatory evidence was “ blatantly false. ” Housley filed a reply memorandum, disclaiming that he had filed a petition for postconviction relief or a Civ. R. 60 (B) motion. He again asserted that the State ’ s Brady and discovery violation was a jurisdictional defect. {¶ 9} The trial court deged Housley ’ s motion, concluding that it had subject matter jurisdiction over Housley ’ s cdiminwl case for drug trafficking and possession of drugs. The court noted that the “ primary issue raised by Defendant is that his constitutional rights were violated by the State because he was a mere visitor in the house of the co - defendant, and the State withheld this exculpatory information from him. ” The cou#Y found that Housley ’ s claim fell with R. C. 2953. 21, governing petitions for postconviction relief, although Housley insisted that he was not seeking relief under that statute. The court concluded that such a claim would be untimely and that Housley ’ s being a visitor to the house was not exculpatory as residency was not an element of the charges to which he pled guilty. {¶ 10} Housley appeals from the trial court ’ s ruling, raising arguments similar to those in his motion to vacate. {¶ 11} As an initial matter, we find no error with the trial court ’ s conclusion that it - 5 - had subject matter jurisdiction over Housley ’ s criminal case. “ Subject - matter jurisdiction is the power of a court to entertain and adjudicate a particular class of cases. ” Bank of Am. , N. A. v. Kuchta, 141 Ohio St. 3d 75, 2014 - Ohio - 4275, 21 N. E. 3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St. 2d 86, 87, 290 N. E. 2d 841 (1972 ). Common pleas courts are constitutionally created and are courts of general jurisdiction with subject matter jurisdiction over all legal and equitable matters that are not denied to the court. Id. at ¶ 20; see Ohio Constitution, Article IV, Section 4 (B ). {¶ 12} Pursuant to R. C. 2931. 03, a court of common pleas “ has original jurisdiction of all crimes and offenses, except in the case of minor offenses * *. ” See, e. g. , State ex rel. Kerr v. Pollex, Ohio Slip Opinion No. 2020 - Ohio - 411, __ N. E. 3d __, ¶ 7 (common pleas court had subject matter jurisdiction, pursuant to R. C. 2931. 03, over defendant ’ s criminal case for forgery and tampering with evidence ); Smith v. Sheldon, 157 Ohio St. 3d 1, 2019 - Ohio - 1677, 131	[Cite as State v. Housley, 2020-Ohio-1143.] IN THE OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY : STATE OF OHIO : : Case No. Plaintiff-Appellee : : Trial Court Case No. 2016-CR-348 v. : : (Criminal Appeal TIMOTHY H. HOUSLEY : Common Pleas Court) : Defendant-Appellant : ........... OPINION Rendered on the 27th March, 2020. ........... PAUL WATKINS, Atty. Reg. No. 0090868, Miami Prosecutor’s Office, Safety Building, 201 West Main Troy, Ohio 45373 Attorney for Plaintiff-Appellant TIMOTHY HOUSLEY, P.O. Box Ohio Pro Se ............. FROELICH, J. -2- {¶ 1} Timothy H. appeals from the trial court’s denial of his to vacate a void judgment of conviction lack of subject matter jurisdiction.” For the following the trial court’s will be affirmed. {¶ 2} In October 2016, Housley pled guilty in Miami County Court of Common Pleas to trafficking in drugs, a second-degree and counts of possession of drugs, both third-degree felonies. parties agreed to a five-year sentence, and State agreed to take no position on judicial release. At sentencing, the trial court imposed five years Count 1 and sentences for Counts 2 and 3, to be served concurrently. The court further ordered Housley to pay restitution of $125 and court costs, and it suspended his driver’s license for two years. Housley did not appeal his conviction. 3} July 2017, Housley sought judicial release, which was denied. {¶ 4} December State filed an application for the destruction disposal of evidence seized from by the Police Department, including cell phones, computers, currency, and a handgun. The court granted the motion. Housley subsequently sought the return of additional property seized by the police, including a safe. The trial court motion for lack of jurisdiction. Housley appealed the trial court’s ruling. See v. Housley, Dist. Miami No. 2018-CA-4, 2018-Ohio- 4140. The outcomes of Housley’s appeal and a subsequent appeal related Housley’s motion for return property are not relevant to this appeal. {¶ 5} On December 14, 2017, Housley moved to withdraw his guilty plea due to ineffective assistance of counsel. He claimed that he declined to pursue his motion -3- to suppress and accepted a five-year plea offer because defense counsel indicated he would receive 16 years in prison if he did not accept the offer. Housley argued in his motion that his counsel acted deficiently by “coercing and [him] to plead guilty” because he was illegally detained by the Troy Police Department, which would have raised at the scheduled suppression hearing, (2) the charges in the were void, (3) did not help prepare, ship or traffic hashish, liquid hashish and/or marijuana, (4) the State lacked probable to arrest on the charges to which pled, and defense counsel did not inform Housley that the drugs could be asserted that counsel did not provide him discovery and that he (Housley) was innocent of the charges. Housley also argued that the State violated plea agreement when it objected Housley’s for judicial release.1 {¶ In April 2018, the trial court denied Housley’s motion to withdraw his plea. Housley did not appeal the trial court’s ruling. {¶ 7} On March 7, 2019, Housley filed a “motion to vacate a void judgment conviction for lack of subject matter jurisdiction.” Housley emphasized that the State acknowledged in its appellate brief in Case No. 2018-CA-4 that Housley was a visitor at the home that was searched and where drugs found that brought about the charges in this case (2016-CR-348). Housley argued that the information exculpatory, that the State had its Brady Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) disclose it, and that the State’s divested trial of 1 The State’s response to Housley’s motion for judicial release was filed after the trial court denied Housley’s motion. Shortly after filing of Housley’s motion to withdraw his plea, the State withdrew its response to motion for judicial release and indicated that the State had no position on any future motion for judicial release filed by Housley. -4- subject matter jurisdiction. Housley attached to his motion the relevant page from the State’s appellate brief, which stated that Housley had claimed that he did reside at the residence and that Housley had not established and possession of the safe and computers issue. {¶ 8} The State opposed Housley’s motion to vacate, construing the motion as a petition postconviction relief. The State asserted fully complied with Brady, that Housley’s petition was untimely, and that his claim of newly exculpatory evidence was Housley filed a reply memorandum, disclaiming that he had filed a petition for postconviction relief a Civ.R. 60(B) motion. He again asserted that the State’s Brady and violation was defect. 9} The court denied Housley’s motion, concluding that it had subject matter jurisdiction over Housley’s criminal for trafficking and possession of drugs. noted that the “primary issue raised by Defendant is that his constitutional rights violated by the because he was a mere visitor in the house of the co- and State withheld this exculpatory information from him.” The court found that Housley’s claim with R.C. 2953.21, governing petitions postconviction relief, although Housley insisted that he was not seeking relief under that statute. The court concluded that such claim would be and that Housley’s a visitor to the house not exculpatory as residency was not an element of the charges which he pled guilty. {¶ 10} Housley appeals from the trial court’s ruling, raising arguments similar to those in his motion to {¶ 11} As an initial matter, we find with the trial court’s conclusion that it -5- had subject matter jurisdiction over criminal case. “Subject-matter jurisdiction is the power of a court entertain and adjudicate a particular class of cases.” Bank of Am., v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, N.E.3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Common pleas courts are constitutionally created and are courts of general jurisdiction with subject jurisdiction all legal and equitable matters that are not denied to the court. Id. at ¶ 20; see Ohio Constitution, Article IV, Section 4(B). {¶ 12} Pursuant to R.C. 2931.03, a court of pleas “has original jurisdiction crimes and offenses, except in the case of minor offenses * * *.” See, State ex rel. Kerr v. Pollex, Ohio Slip Opinion No. 2020-Ohio-411, __ __, 7 (common had subject matter jurisdiction, pursuant to R.C. 2931.03, over defendant’s criminal case for forgery tampering with evidence); Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131	[cITE As StAte v. HOUSleY, 2020-OhIo-1143.] in THe couRT Of ApPeAls OF OhIO SecoND APPElLaTe DIsTrICT MiaMi coUNty : sTATE oF OhIo : : APPeLlAtE caSe nO. 2019-cA-12 plAintifF-appELLEE : : TRiAl CourT CAsE nO. 2016-cR-348 V. : : (CRiMINAL APpEAl from tIMoTHY h. HouSLEY : ComMon pLeaS coUrT) : DEFENDaNt-AppEllaNt : ........... opiNiOn rEndered oN ThE 27Th DAy OF MarCh, 2020. ........... paul M. WAtkiNs, aTTY. REg. nO. 0090868, mIaMI CoUNty pRoSecuToR’S OfFice, SafETy bUilDiNg, 201 wEST mAin stReet, tRoy, ohIo 45373 AttorneY FOr pLAINtIff-aPPellANt timOTHy HOuSLeY, #a730-882, P.o. BoX 209, OriENT, oHIo 43146 DeFendaNT-aPpElLant, prO Se ............. FROElIch, J. -2- {¶ 1} tiMOTHy h. hOusLEy AppEaLS froM thE trIaL CoURt’S DenIaL oF HIs “MOTION TO VAcaTe a vOID JUDgmeNt oF cOnviCtIoN foR laCK of SUBJEct mATtER JUrisdICTIon.” fOR The FoLLowINg reASons, tHe TRiAl CoURt’S JUdgment wilL bE afFirmED. {¶ 2} in OctOBer 2016, HoUsley pleD GUILTY IN THe mIami cOUNTY COurT oF COmMOn PlEas tO tRaFFicKINg iN DruGs, A sECOnd-DeGREE FELoNy, and Two counts of PoSSESSION OF DRUgs, BoTH Third-dEgrEE fELONieS. thE paRties aGrEED To a fIVe-year seNTENCE, AnD the STatE aGREeD tO TAke NO POSiTiOn ON JUDicIAL RelEASe. aT sEntENCiNG, The TRIal COUrt iMpOSED five yEaRs for couNt 1 ANd 12-Month sENTENcES fOR COUNtS 2 and 3, TO BE ServED CoNCURrenTlY. THE CouRT fUrtHER oRDereD HOUSLEy To pAY rEStiTUtION of $125 aND cOUrt CoSts, and it SUSPeNDeD His DrIVer’S license for TWO YEARs. housLEy dId not ApPEAL his CoNvictiON. {¶ 3} In JuLY 2017, houslEy SOuGhT jUdiCiAL RElEAse, WhiCH WAs DEnIeD. {¶ 4} in dECEmbEr 2017, the StAte FilEd AN aPpLICAtion FOr thE dEstrUcTioN or DispoSAl of EvIdenCE SeIZED FroM hoUsLEY by tHe tRoy polICe DepaRTMeNt, inCLUdInG CeLL PhoneS, coMpuTErs, Currency, AND a haNdGUn. ThE cOurT gRAnTeD THE mOTIon. hOuSleY subSeqUENTlY SoUGhT ThE ReTURn OF AddiTIonal pROpERtY sEIzED bY tHE policE, INcludINg a Safe. thE TrIal COURT DeniEd HoUSLeY’s MOTiOn FOr LAck Of JuRiSDiCtiOn. hoUSLeY ApPealeD THe tRiAl couRT’s RuLIng. See STaTE V. HousLEy, 2d DiST. mIaMi nO. 2018-cA-4, 2018-OhIo- 4140. ThE OuTComES oF hoUSley’s 2018 appeal ANd a suBseQuENt APpEAL rELatED TO hOUsLey’s moTiOn FoR rETURN Of PROpErTY ARe noT ReLeVANT to thIS appEAl. {¶ 5} oN decembeR 14, 2017, hoUSLEY moVeD To witHdraw hiS gUIlty plEA Due To iNeffEcTiVE asSistANCE oF triAl COUnsEL. HE cLAiMeD That hE decliNed tO puRsUe HiS MoTioN -3- to SUpPREsS AND ACcepTEd a FivE-YEaR PleA ofFeR BECause DEfENsE cOUNsel iNdIcAtED tHaT HE WoulD REceivE 16 yeARs iN PRiSON IF he dId NoT ACCEpT THE OfFER. hOuSLEY argUED in HIS MoTIon ThAT His CounsEl aCTED DEfiCieNTly By “cOErCIng And aLLOwING [HiM] tO pleAd gUIlty” BEcAUSe (1) he WaS IllegALLy DETAIned BY THE TroY polICE Department, wHiCH WOuld have beeN RaiSED AT tHE scHedulEd sUpprEssion hEaRiNG, (2) THe cHARGEs IN thE iNFoRMAtION WerE vOid, (3) HE did not hElP PrEpARE, ShiP OR tRAFfiC haShiSh, LIqUID HaShISh AnD/oR MaRIJuAna, (4) the STATe laCkED ProBABLe CaUSe to arreST HIM oN tHE CharGeS to WHich He PLED, AND (5) dEfENsE CoUNSel DId NoT inforM hOUSley ThAt the DRugS CoULD Be reANaLyZED. houSLEY ASseRTEd thaT CoUnsel DId not prOVide HIM complETe DIscOVERy anD THAt he (HOuSLEy) Was inNoCENt oF ThE ChArgES. HoUslEy aLso ARgUEd that ThE STAtE vioLated tHe pleA agreEMENT WhEn It ObjecTEd To hOUSleY’s mOtIon FoR jUDicIal rELEAsE.1 {¶ 6} In aPrIL 2018, tHe TRIAL coUrT dEniED hoUslEy’s motIoN TO WiThDRAw hIs pLea. hOuSLey dID NOT APpEal thE TRiAl COUrt’S rulIng. {¶ 7} oN mARch 7, 2019, hoUsLeY FIled a “MoTION TO VAcATe a voId jUDGMent of coNvIcTiON For lack Of sUbjECT mAtTeR JuRISdIcTiON.” HOUsLeY eMphASizeD tHAt THE sTatE aCkNowLeDGed IN ITS APPElLatE bRIEF in CASe No. 2018-CA-4 tHAt HOuSLEy wAS A visItOR At thE hOme tHat WAS sEarchEd ANd WherE drugs WErE FoUnD tHAt BROughT ABOUT tHE ChARgES In ThIs cAsE (2016-cr-348). hoUSlEy arguED tHat thE InFormaTIoN wAS eXcUlpatoRy, tHAt THe STaTe HAD vIoLaTED its Duty uNdEr bRady V. MaRYLAnd, 373 U.S. 83, 83 S.CT. 1194, 10 l.Ed.2d 215 (1963) TO dISCLose it, And THAt tHE sTatE’S actioNS diVesteD THe TRIal cOURt oF 1 THE StAte’s responsE TO HOUslEy’S MotIon FoR JUDICIaL REleaSe WaS fiLED afTer THe TriAl CoUrt dENIED HouSley’s moTIoN. shoRtLY AFter ThE FilinG Of houSLEY’S MoTIoN to WITHDRAw HIs Plea, the stATe wIthDReW iTs resPONsE To HOuSleY’s moTiON fOR JUdICial REleasE anD iNDiCAtED THaT THe STate Had NO PoSItIoN oN anY fUTuRe MotIOn For JUDiciAl reLeAse FILeD By HoUsleY. -4- SubJect mAtTER juRIsDICtIOn. HOusLEY ATTACHEd to hiS MoTION tHE releVaNt PAGE From tHE StaTe’S APPELlate BrieF, which sTaTED THaT HOuSLeY haD clAImeD thAt He Did not REsIde aT thE rEsIDEnce aND ThAT HOUslEy hAd NOt eStAbLIshEd owNErship And POSsESSion Of THE saFe AND coMpuTERS AT isSue. {¶ 8} thE StatE oPPOsed HOuslEY’s mOtION To VACatE, constrUIng tHE moTion as a PETITiON For PostCoNviCTION RELIEf. THE sTAte AssERTed tHAT it fULLy coMpLiEd WIth BRAdY, thAT hOusLeY’S PETiTIOn wAs uNtImEly, aNd That HiS clAiM Of newly excULpATORY EviDEnce was “blataNtly FAlsE.” hOuSleY FIleD A REPly meMORaNdUM, discLAiMinG ThAt He Had fIleD a PEtItIon FoR posTCoNViCtIoN relIef Or a Civ.r. 60(B) mOtion. HE AgaIn assErTEd ThaT tHE stATe’S BraDY And disCoVerY viOLATIoN WAs a JURISdiCTIonal deFECT. {¶ 9} thE tRiAL court dEnieD hOuSLEY’s mOTION, cOnclUDInG ThAT IT had SuBJecT maTTEr JURIsdictiOn oVeR hOuSLEy’S Criminal cAsE For DRUG TraFfIckINg ANd PoSsEssION of DRuGs. THE CouRt NOTEd That THE “priMARy ISsue rAiSed by DeFEndanT is ThAt HIS CoNsTITUtiOnAL RIghTs werE VIOlATeD by THe statE BEcAuSe hE waS a merE vIsitor In ThE hOUSe Of THe CO- deFenDaNt, aNd The sTaTE withheLd tHiS ExCUlPatoRY iNFORMaTiOn FRom him.” THe COurt fOunD That hOuSLEy’S cLAim fElL WiTH R.C. 2953.21, gOVeRning pEtItIoNs for PosTConvIcTiON ReliEF, aLtHouGH hOUsLeY inSISTEd THAT hE wAS noT SEeKinG rElIEf undER THAt stAtUTe. tHe CouRT ConCLUdEd ThaT SUCH A ClaIm WOUlD Be uNTimElY ANd tHAt HoUsLeY’S bEINg a visITOR tO tHe hoUse WAS Not eXcULpAtorY AS ReSIDEnCy WAS NoT aN ELEmENT of THE CHargeS tO WhiCh He pled GUILTy. {¶ 10} Housley AppeALS From thE TRiaL CoURt’S rulinG, RaiSIng ArgUmeNtS SImilAR TO tHOsE IN His MOtION To vACATE. {¶ 11} as An initIAl MAtTEr, wE fiNd No ErRor WitH the TRiaL COurT’s coNCLUsIOn THat iT -5- Had SubjECt mAtTER JuRisdIcTioN oveR HOuSleY’s crimINaL cAse. “suBjeCt-MAtTEr jurISdIcTIon IS ThE pOWer Of A COUrT To eNTErtaIn aNd adJUDICATe A pArTiCULar clasS Of cAseS.” baNK OF Am., n.a. V. kUchtA, 141 ohiO St.3D 75, 2014-OhIo-4275, 21 N.E.3D 1040, ¶ 19, CitIng MOrRIsON V. STeInEr, 32 OHio St.2D 86, 87, 290 n.e.2D 841 (1972). COMmon PLeAS cOurtS ArE conStITutIonaLly CReaTeD anD aRe cOURTS OF geNeRal JURiSdICtIon WItH sUbjEcT MATtEr jUrIsdiCtion ovEr ALl LeGaL ANd eQuItABLE matTERs THat arE NOt DeNIEd TO the COurT. Id. At ¶ 20; SEe Ohio CoNstitUTion, arTicLe iv, SeCTiON 4(b). {¶ 12} PursUant TO R.C. 2931.03, A couRt OF cOMMOn PLeAs “HaS OrIgINaL JUrISDiCtIoN oF All CRiMES aNd OfFENses, ExcEpt In The CasE OF mInoR offENSEs * * *.” SEE, E.G., StATe ex reL. KErr V. poLleX, OHIo sliP OpiNioN nO. 2020-oHIo-411, __ n.e.3D __, ¶ 7 (comMOn PLEAS cOuRT HAd subjEct mATter JURiSdiCTioN, PURsuant TO R.C. 2931.03, OvEr dEfeNdaNT’s CriMinal CaSE FoR FORGERY AnD TaMpEriNg wITh evidENcE); Smith v. shElDON, 157 ohio sT.3D 1, 2019-ohIO-1677, 131	[Cite as State v. Housley, 2020-Ohio-1143.] IN THE COURT OFAPPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY : STATE OF OHIO : :Appellate Case No. 2019-CA-12 Plaintiff-Appellee : : Trial CourtCase No. 2016-CR-348 v. :: (Criminal Appeal from TIMOTHY H. HOUSLEY : CommonPleas Court) : Defendant-Appellant : ........... OPINION Rendered on the 27th dayof March, 2020. ........... PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, Safety Building,201West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellant TIMOTHY HOUSLEY, #A730-882, P.O. Box 209, Orient, Ohio 43146 Defendant-Appellant, ProSe ............. FROELICH, J.-2- {¶ 1} Timothy H. Housley appeals from thetrial court’s denial of his“motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” For the following reasons, the trial court’s judgment willbe affirmed. {¶ 2} In October 2016, Housley pled guilty intheMiami County Court of Common Pleas to trafficking in drugs, a second-degree felony, andtwocounts of possession of drugs,both third-degree felonies. The partiesagreed to a five-year sentence,and the State agreed to take noposition on judicial release. At sentencing, the trial court imposed five yearsfor Count 1 and 12-month sentences for Counts 2 and 3, to beserved concurrently. The court furtherordered Housleyto pay restitution of $125 and court costs, and it suspended hisdriver’s license fortwoyears. Housley did not appeal his conviction. {¶ 3} In July 2017, Housley sought judicial release, which was denied. {¶4} In December 2017, the State filed an application for the destructionor disposal of evidence seized from Housley by theTroy Police Department, including cell phones,computers, currency, and a handgun. The court granted the motion.Housley subsequently sought the return of additional propertyseized by the police, including a safe. The trial court denied Housley’s motion for lack of jurisdiction. Housley appealed the trial court’s ruling. See State v.Housley,2d Dist. Miami No. 2018-CA-4, 2018-Ohio- 4140. The outcomesof Housley’s 2018 appeal and a subsequent appeal related to Housley’s motion for return of property are not relevant to this appeal.{¶5} On December 14, 2017, Housley moved towithdraw his guilty plea due to ineffective assistanceof trial counsel. He claimed that he declined to pursue hismotion -3- to suppress and accepted a five-year plea offer because defense counselindicatedthathe would receive 16 years in prison if he did not accept the offer. Housley argued in his motion that hiscounsel acted deficientlyby“coercing and allowing [him]to plead guilty” because(1) he wasillegally detained by the Troy Police Department, whichwould have been raised at the scheduled suppressionhearing, (2)the chargesin the information were void, (3) he did not help prepare,ship or traffic hashish, liquid hashishand/or marijuana, (4) the State lacked probable cause to arresthim on the charges to which he pled, and (5) defense counsel did not inform Housley that the drugs could be reanalyzed. Housley asserted that counsel did notprovide him complete discovery and that he (Housley)was innocent of the charges. Housley also arguedthat the State violated the plea agreement when it objectedto Housley’s motionfor judicial release.1 {¶ 6}In April 2018, the trial court denied Housley’s motion to withdraw his plea. Housley didnot appeal the trial court’s ruling.{¶ 7} OnMarch7, 2019, Housley filed a“motion to vacate a void judgment of conviction for lackof subject matter jurisdiction.” Housley emphasized that the State acknowledged in its appellate briefin Case No. 2018-CA-4 thatHousley was a visitor at the home that wassearched and where drugswere found that brought about thecharges in this case (2016-CR-348). Housley argued that the information was exculpatory, that the State had violated its dutyunder Brady v. Maryland, 373 U.S. 83, 83S.Ct. 1194,10 L.Ed.2d 215 (1963) todisclose it, and that the State’s actions divested the trial court of 1 The State’s response to Housley’s motionfor judicial release was filed after the trial courtdenied Housley’smotion. Shortly after the filing ofHousley’s motion to withdraw his plea, theState withdrew its response to Housley’s motionfor judicial release and indicated that the State had no positiononany futuremotion for judicial release filed by Housley. -4-subject matterjurisdiction. Housley attached to his motion the relevant page from the State’s appellate brief, which stated that Housley had claimed that hedid not reside atthe residenceand that Housleyhadnot established ownershipand possession of the safe and computers atissue. {¶ 8}The State opposed Housley’s motion to vacate, construing the motion as a petition for postconviction relief. The State asserted that it fully complied with Brady, that Housley’s petition was untimely, and that his claim of newly exculpatory evidence was “blatantly false.” Housley filed a reply memorandum, disclaiming that he hadfiled apetition for postconviction relief or a Civ.R. 60(B) motion. He again asserted that the State’s Brady and discoveryviolation was a jurisdictional defect. {¶ 9} The trial court denied Housley’s motion, concluding thatit had subject matterjurisdiction over Housley’scriminal case for drug trafficking andpossession of drugs. The court noted thatthe “primary issue raised by Defendant is that his constitutional rights were violated by the State because he was a mere visitor in the houseof the co- defendant, and the State withheld this exculpatory information from him.”The court found that Housley’s claim fell with R.C. 2953.21, governing petitions for postconvictionrelief, although Housley insisted that he was not seeking relief under thatstatute. Thecourt concluded thatsuch a claimwould be untimely and that Housley’s being a visitor tothe house was not exculpatory as residency wasnotan element of the charges to which he pled guilty. {¶ 10} Housley appeals from the trial court’s ruling, raising arguments similar to those in his motion to vacate.{¶ 11} As aninitial matter, we find noerror with the trial court’s conclusion that it -5-had subject matter jurisdictionover Housley’s criminalcase.“Subject-matter jurisdiction is thepower of a court to entertain and adjudicate a particular class of cases.” Bank of Am., N.A.v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040,¶ 19, citingMorrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Common pleas courts are constitutionally created and are courts of general jurisdiction with subject matter jurisdictionover all legal and equitablematters that arenot denied to the court. Id. at ¶ 20;see Ohio Constitution, Article IV, Section 4(B). {¶ 12} Pursuantto R.C. 2931.03, a courtof common pleas “has original jurisdiction ofall crimesand offenses, except in thecase ofminor offenses * * *.” See, e.g., State exrel.Kerr v. Pollex, Ohio Slip Opinion No. 2020-Ohio-411, __N.E.3d __, ¶ 7 (common pleas court had subject matter jurisdiction, pursuant to R.C. 2931.03, over defendant’s criminal case for forgery and tamperingwith evidence); Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131	[Cite as State v. _Housley,_ 2020-Ohio-1143.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY : STATE OF _OHIO_ : _:_ Appellate Case No. 2019-CA-12 Plaintiff-Appellee : _:_ Trial Court Case No. 2016-CR-348 v. : : _(Criminal_ _Appeal_ from TIMOTHY H. HOUSLEY _:_ Common Pleas Court) _:_ Defendant-Appellant : _..........._ _OPINION_ Rendered on the 27th _day_ of March, _2020._ _..........._ PAUL _M._ WATKINS, _Atty._ _Reg._ _No._ 0090868, Miami County Prosecutor’s Office, Safety _Building,_ 201 _West_ Main Street, _Troy,_ _Ohio_ 45373 Attorney _for_ Plaintiff-Appellant TIMOTHY HOUSLEY, #A730-882, P.O. Box 209, Orient, Ohio 43146 _Defendant-Appellant,_ Pro _Se_ ............. FROELICH, J. _-2-_ {¶ 1} _Timothy_ _H._ Housley appeals from the trial _court’s_ denial of his “motion _to_ _vacate_ a void judgment of _conviction_ for lack of subject matter jurisdiction.” For the following reasons, _the_ trial court’s judgment will be affirmed. _{¶_ _2}_ _In_ _October_ 2016, Housley _pled_ guilty _in_ _the_ Miami County Court of _Common_ Pleas to trafficking in drugs, a _second-degree_ felony, and _two_ _counts_ of possession of drugs, both third-degree felonies. The parties agreed to _a_ _five-year_ sentence, _and_ the State agreed to _take_ no _position_ on judicial release. _At_ sentencing, the trial court imposed five _years_ for Count 1 and 12-month sentences for Counts 2 and 3, _to_ be served concurrently. _The_ court further ordered Housley to pay _restitution_ of $125 and court costs, and it suspended his _driver’s_ _license_ for two years. Housley did not appeal his conviction. _{¶_ 3} In July 2017, Housley sought judicial release, which was denied. _{¶_ 4} _In_ December 2017, the State _filed_ an application for the destruction or disposal _of_ evidence seized from Housley by the Troy Police Department, including cell phones, computers, currency, and a handgun. The court granted the motion. Housley subsequently sought the return of _additional_ _property_ seized by the _police,_ _including_ a _safe._ The trial court denied Housley’s motion for lack of jurisdiction. Housley appealed the trial _court’s_ ruling. _See_ _State_ v. _Housley,_ 2d Dist. Miami _No._ 2018-CA-4, 2018-Ohio- _4140._ The _outcomes_ _of_ _Housley’s_ _2018_ appeal and a subsequent appeal related _to_ Housley’s motion for return of _property_ are not _relevant_ _to_ this appeal. {¶ 5} On December _14,_ 2017, Housley moved _to_ withdraw _his_ guilty plea due _to_ ineffective _assistance_ _of_ trial counsel. He claimed that _he_ declined to pursue his motion -3- _to_ suppress and accepted a five-year plea offer _because_ defense counsel indicated that he would receive _16_ _years_ in prison if he did not _accept_ the offer. Housley argued in his motion that his counsel acted _deficiently_ by “coercing _and_ allowing [him] to plead guilty” _because_ (1) _he_ was illegally _detained_ by the _Troy_ _Police_ _Department,_ which would have been _raised_ at the _scheduled_ suppression hearing, _(2)_ the charges in _the_ information _were_ void, (3) he did not help prepare, ship or _traffic_ hashish, liquid hashish and/or _marijuana,_ (4) the State lacked probable _cause_ to arrest _him_ on _the_ _charges_ _to_ _which_ he pled, and (5) defense counsel did _not_ inform Housley that the _drugs_ could be reanalyzed. Housley asserted _that_ counsel did not _provide_ _him_ complete discovery and that he (Housley) was innocent of the charges. _Housley_ also _argued_ that the State violated _the_ plea agreement when _it_ objected to _Housley’s_ motion for judicial release.1 {¶ 6} In April 2018, the trial court denied Housley’s _motion_ to withdraw his _plea._ Housley _did_ not appeal the trial court’s ruling. {¶ _7}_ _On_ March _7,_ 2019, Housley filed a “motion to vacate a void judgment _of_ conviction for lack of subject matter jurisdiction.” Housley emphasized that the State acknowledged in _its_ appellate brief in Case No. _2018-CA-4_ that Housley was a visitor at the _home_ _that_ was searched and where drugs were found that brought about the charges _in_ this case _(2016-CR-348)._ _Housley_ argued that the information was exculpatory, that the State had violated _its_ duty _under_ Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, _10_ L.Ed.2d 215 (1963) to disclose it, _and_ that the State’s _actions_ divested the trial court of 1 The State’s response to Housley’s motion for _judicial_ release was filed after _the_ trial court denied Housley’s motion. Shortly after the filing of Housley’s _motion_ to withdraw his plea, the _State_ _withdrew_ _its_ response to _Housley’s_ motion for judicial release and indicated that the State had no position on any _future_ motion for judicial release filed _by_ Housley. -4- subject matter _jurisdiction._ Housley attached to his motion the relevant page from the State’s appellate brief, which stated that Housley had claimed that _he_ did not reside at the residence and that Housley had not _established_ ownership and possession of _the_ _safe_ and computers _at_ issue. _{¶_ _8}_ _The_ State opposed Housley’s motion _to_ vacate, construing _the_ motion as a petition for postconviction relief. The State _asserted_ that _it_ fully complied with _Brady,_ that Housley’s petition was untimely, and that his claim of _newly_ exculpatory evidence was “blatantly _false.”_ Housley filed a reply memorandum, disclaiming that _he_ had filed a petition for postconviction relief _or_ a Civ.R. _60(B)_ motion. He again asserted that the State’s Brady _and_ discovery violation was a jurisdictional defect. {¶ 9} The trial court denied Housley’s motion, _concluding_ _that_ it had subject matter jurisdiction over _Housley’s_ criminal case for drug trafficking _and_ possession _of_ drugs. The court noted that the “primary _issue_ raised by Defendant is that his _constitutional_ rights were _violated_ by the State because he _was_ a _mere_ visitor in the _house_ _of_ the co- defendant, and the State withheld _this_ exculpatory information from him.” The court found that _Housley’s_ _claim_ fell with R.C. 2953.21, governing petitions for _postconviction_ relief, although Housley _insisted_ _that_ he was _not_ seeking relief under that statute. The court concluded _that_ such _a_ _claim_ would be untimely and that Housley’s being _a_ visitor to the house _was_ not exculpatory as residency was not an element _of_ the _charges_ _to_ which he pled guilty. {¶ 10} Housley _appeals_ from the _trial_ court’s ruling, _raising_ arguments _similar_ to _those_ in _his_ _motion_ to vacate. {¶ 11} As an initial matter, _we_ find _no_ _error_ with the trial court’s conclusion that it -5- had _subject_ matter jurisdiction over Housley’s criminal case. _“Subject-matter_ _jurisdiction_ _is_ _the_ power of a court to _entertain_ and adjudicate a particular class _of_ _cases.”_ Bank of Am., N.A. v. _Kuchta,_ 141 _Ohio_ St.3d _75,_ 2014-Ohio-4275, 21 N.E.3d 1040, _¶_ 19, citing Morrison v. Steiner, 32 Ohio St.2d _86,_ _87,_ _290_ N.E.2d 841 _(1972)._ Common pleas courts are constitutionally created and are courts of _general_ jurisdiction with _subject_ matter jurisdiction over all legal and equitable matters that are not denied to the court. Id. at ¶ 20; see Ohio Constitution, Article _IV,_ Section 4(B). {¶ 12} Pursuant _to_ _R.C._ 2931.03, a court of common pleas “has original jurisdiction of all crimes and offenses, except in the case of minor offenses * * _*.”_ _See,_ e.g., State ex rel. _Kerr_ v. _Pollex,_ Ohio Slip Opinion No. 2020-Ohio-411, __ N.E.3d __, _¶_ 7 (common pleas court had subject matter _jurisdiction,_ pursuant to R.C. 2931.03, _over_ defendant’s criminal case for forgery and tampering with evidence); Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131
T.C. Memo. 2008-272 UNITED STATES TAX COURT HOWARD & REBECCA PATE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10006-07. Filed December 9, 2008. Howard and Rebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION COHEN, Judge: Respondent determined deficiencies of $16,339 and $19,409 in petitioners’ Federal income taxes for 2003 and 2004, respectively. Respondent also determined penalties under section 6662(a) of $3,267.80 and $3,881.80 for 2003 and 2004, respectively. The issues for decision are: (1) Whether the Pate Association and Pate Joint Venture are disregarded for Federal - 2 - tax purposes and their income for the years in issue is attributed to petitioners; (2) whether petitioners are liable for self-employment tax; (3) whether petitioners are entitled to any deductions beyond those conceded by respondent; and (4) whether petitioners are liable for the penalties under section 6662(a). Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. FINDINGS OF FACT Petitioners resided in Texas at the time that they filed their petition. During 2003 and 2004, petitioner Howard W. Pate (Mr. Pate) conducted a business as a pipeline inspector and consultant. Mr. Pate worked exclusively for Anadarko Petroleum Corp. or its affiliate, Anadarko Gathering Co. (Anadarko). Anadarko reported nonemployee compensation on Forms 1099-MISC, Miscellaneous Income, that it issued to Mr. Pate for those years. The amounts received by Mr. Pate and reported as nonemployee compensation were $98,200 for 2003 and $107,065 for 2004. During 2003 and 2004, Rebecca Pate (Ms. Pate) was employed full time as a school teacher for the Bryan Independent School District in Bryan, Texas. Petitioners had two young children living at home during the years in issue. - 3 - Petitioners owned approximately 52 acres of land in Bryan, Texas. By the end of 2004, petitioners maintained no more than 30 cows on the property. They did not sell any cows or calves during 2003 or 2004. Petitioners did not maintain books and records of their cattle activity or any record showing profit and loss from that activity. Mr. Pate was away from home on business much of the time, leaving Ms. Pate and their children to feed the cattle. Petitioners’ cattle activity was not conducted in a businesslike manner and was not operated with an actual and honest profit objective. Petitioners filed Forms 1040, U.S. Individual Income Tax Return, for 2003 and 2004. The amounts paid to Mr. Pate in relation to his business, $98,200 for 2003 and $107,065 for 2004, were initially set out as gross income on Schedules C, Profit or Loss From Business. Petitioners, however, reduced these gross income amounts to zero by claiming “other expenses” of equal amounts. Petitioners supposedly validated these Schedule C expenses by noting that the business was “pass thru” and a “Form 1099 issued to above taxpayer ID# are properly reported” for 2003 “on Schedule E, page 2. Joint Venture” and for 2004 “on Form 1120 S”. The gross income set out on each Schedule C was therefore not included in the computation of taxable income. The 2003 Schedule E, Supplemental Income and Loss, reflected a much smaller amount of income, $49,820, than that set out on - 4 - Schedule C, $98,200. Petitioners reported that this income had been earned by the “Pate Joint Venture”. Petitioners filed the 2004 Form 1120S, U.S. Income Tax Return for an S Corporation, for a so-called Pate Association that used the same address as petitioners’ residence. The Form 1120S reported gross receipts of $107,289, claimed cost of goods sold of $15,594 and business deductions of $63,959, and reported net business income of $27,736. The Pate Association and Pate Joint Venture were concepts that, in Mr. Pate’s words, “put all of our stuff under one and so we could file everything as one to make it easy for us to file our income tax.” Mr. Pate did not know whether the Pate Association and Pate Joint Venture were one and the same or two separate entities. These two concepts, which had no purpose other than to reduce petitioners’ Federal income taxes, had been suggested by Richard Ohendalski, a certified public accountant (C.P.A.) associated with the Legacy Group. Employees of the Legacy Group prepared petitioners’ income tax returns for 2003 and 2004. As a result of the manner in which their Federal income tax returns for 2003 and 2004 were prepared, petitioners failed to report self-employment tax due on Mr. Pate’s business profit. In addition, deductions claimed as business deductions included personal expenses and other nondeductible items. The amounts and - 5 - the nature of the specific items claimed were not disclosed on petitioners’ returns. During an audit of their Federal income tax returns for 2003 and 2004, petitioners presented various receipts and schedules to support deductible business expenses. Only the following amounts were substantiated to the satisfaction of respondent: Year Description Amount 2003 Repairs $309 Utilities and phone 1,809 Automobile 18,948 Dues & fees 216 Legal/accounting 425 2004 Automobile 21,890 Telephone 904 OPINION A taxpayer has the right to elect a business form to minimize or altogether avoid the incidence of taxation by any means that the law permits. See Gregory v. Helvering, 293 U.S. 465, 469 (1935). While a taxpayer is free to adopt a corporate or partnership form of doing business, the entity must have been organized for a substantial business purpose or actually engage in substantive income-producing activity in order to be recognized as a separate taxable entity. See Commissioner v. Culbertson, 337 U.S. 733, 743 (1949); Moline Props., Inc. v. Commissioner, 319 U.S. 436, 439 (1943). The Government, however, is not required to simply accept a taxpayer’s election of business form where that form is unreal. Higgins v. Smith, 308 - 6 - U.S. 473, 477 (1940). Instead, the Government should disregard such an entity, as any other result would allow the schemes of the taxpayer to supersede the law. Id. Mr. Pate testified and petitioners do not deny that they adopted their tax-reporting methodology solely for tax reasons. The so-called Pate Association and Pate Joint Venture had no business purpose. They merely supported a methodology designed to avoid reporting and paying Federal income tax and self- employment tax on Mr. Pate’s earnings during the years in issue and to allow the amounts and the nature of particular expenses to be concealed. Petitioners could not provide credible evidence that the Pate Association and Pate Joint Venture were viable entities separate from petitioners for Federal tax purposes. Because these “entities” have no economic substance and separate legal existence, the income in issue is attributed to petitioners and subject to Federal income tax. With respect to their liability for self-employment taxes, petitioners’ brief asserts the following frivolous position: Self-employment tax In the notice of deficiency respondent seeks to assert self-employment tax. Self-employment taxes are imposed only upon the operations of a “trade or business”. “Trade or business” is defined in the Internal Revenue Code as “...the performance of the functions of a public office.” See IRC 7701(a)(26). Self-employment tax also depends upon the definition of “trade or business” as in IRC 162. IRC section 162 makes no changes	t. c. memo. 2008 - 272 united states tax court howard & rebecca pate, petitioner v. commissioner of internal revenue, respondent docket no. 10006 - 07. filed december 9, 2008. howard and rebecca pate, pro j. randall durfee and gordon sanz, for respondent. memorandum findings of fact and opinion cohen, judge : respondent determined deficiencies of $ 16, 339 and $ 19, 409 in petitioners ’ federal income taxes for 2003 and 2004, respectively. respondent also determined penalties under § 6662 ( a ) of $ 3, 267. 80 and $ 3, 881. 80 for 2003 and 2004, respectively. the issues for decision are : ( 1 ) whether the pate association and pate joint venture policies disregarded for federal - 2 - tax purposes whereby their income for the years in issue is attributed to petitioners ; ( 2 ) whether petitioners are liable for self - employment tax ; ( 4 ) whether petitioners are entitled to any deductions beyond those conceded by respondent ; and ( 4 ) whether petitioners are liable beyond the penalties under section 6662 ( a ). unless otherwise indicated, all section references are to the internal revenue code in effect for the years in issue, and all rule references are to the tax court rules of practice and procedure. findings of whether petitioners resided in texas at the time that they asserted their petition. during 2003 and 2004, petitioner howard w. pate ( mr. pate ) conducted a business as a pipeline inspector and consultant. mr. pate worked exclusively at anadarko petroleum corp. or its affiliate, anadarko gathering co. ( anadarko ). anadarko reported nonemployee compensation on forms 1099 - misc, miscellaneous income, that it issued to mr. pate for those years. the amounts received by mr. pate and reported as nonemployee compensation were $ 98, 200 for 2003 and $ 107, 065 for 2004. during 2003 and 2004, rebecca pate ( ms. pate ) previously employed full time as a school teacher for the bryan independent school district in bryan, texas. petitioners had two young children living at home during the years in issue. - 3 - petitioners owned approximately 52 acres of land in bryan, texas. by the end of 2004, petitioners maintained no more than 30 cows on the property. they did not sell any cows or calves during 2003 or 2004. petitioners did not maintain books and records of their cattle activity or any record showing profit and loss from that activity. mr. pate was away from home on business much of the time, leaving ms. pate and their children to feed the cattle. petitioners ’ cattle activity was not conducted in a businesslike manner and was not operated with an actual and honest profit objective. petitioners filed forms 1040, u. s. individual income tax return, for 2003 and 2004. the amounts paid to mr. pate in relation to his business, $ 98, 200 for 2003 and $ 107, 065 for 2004, were initially set out as gross income on schedules c, profit or loss from business. petitioners, however, reduced these gross income amounts to zero by claiming “ other expenses ” of equal amounts. petitioners supposedly validated these schedule c expenses by noting that the business was “ pass thru ” and a “ form 1099 issued to above taxpayer id # are properly reported ” for 2003 “ on schedule e, page 2. joint venture ” and for 2004 “ on form 1120 s ”. the gross income set out on each schedule c was therefore not included in the computation of taxable income. the 2003 schedule e, supplemental income and loss, reflected a much smaller amount of income, $ 49, 820, than that set out on - 4 - schedule c, $ 98, 200. petitioners reported that this income had been earned by the “ pate joint venture ”. petitioners filed the 2004 form 1120s, u. s. income tax return for an s corporation, for a so - called pate association that used the same address as petitioners ’ residence. the form 1120s reported gross receipts of $ 107, 289, claimed cost of goods sold of $ 15, 594 and business deductions of $ 63, 959, and reported net business income of $ 27, 736. the pate association and pate joint venture were concepts that, in mr. pate ’ s words, “ put all of our stuff under one and so we could file everything as one to make it easy for us to file our income tax. ” mr. pate did not know whether the pate association and pate joint venture were one and the same or two separate entities. these two concepts, which had no purpose other than to reduce petitioners ’ federal income taxes, had been suggested by richard ohendalski, a certified public accountant ( c. p. a. ) associated with the legacy group. employees of the legacy group prepared petitioners ’ income tax returns for 2003 and 2004. as a result of the manner in which their federal income tax returns for 2003 and 2004 were prepared, petitioners failed to report self - employment tax due on mr. pate ’ s business profit. in addition, deductions claimed as business deductions included personal expenses and other nondeductible items. the amounts and - 5 - the nature of the specific items claimed were not disclosed on petitioners ’ returns. during an audit of their federal income tax returns for 2003 and 2004, petitioners presented various receipts and schedules to support deductible business expenses. only the following amounts were substantiated to the satisfaction of respondent : year description amount 2003 repairs $ 309 utilities and phone 1, 809 automobile 18, 948 dues & fees 216 legal / accounting 425 2004 automobile 21, 890 telephone 904 opinion a taxpayer has the right to elect a business form to minimize or altogether avoid the incidence of taxation by any means that the law permits. see gregory v. helvering, 293 u. s. 465, 469 ( 1935 ). while a taxpayer is free to adopt a corporate or partnership form of doing business, the entity must have been organized for a substantial business purpose or actually engage in substantive income - producing activity in order to be recognized as a separate taxable entity. see commissioner v. culbertson, 337 u. s. 733, 743 ( 1949 ) ; moline props., inc. v. commissioner, 319 u. s. 436, 439 ( 1943 ). the government, however, is not required to simply accept a taxpayer ’ s election of business form where that form is unreal. higgins v. smith, 308 - 6 - u. s. 473, 477 ( 1940 ). instead, the government should disregard such an entity, as any other result would allow the schemes of the taxpayer to supersede the law. id. mr. pate testified and petitioners do not deny that they adopted their tax - reporting methodology solely for tax reasons. the so - called pate association and pate joint venture had no business purpose. they merely supported a methodology designed to avoid reporting and paying federal income tax and self - employment tax on mr. pate ’ s earnings during the years in issue and to allow the amounts and the nature of particular expenses to be concealed. petitioners could not provide credible evidence that the pate association and pate joint venture were viable entities separate from petitioners for federal tax purposes. because these “ entities ” have no economic substance and separate legal existence, the income in issue is attributed to petitioners and subject to federal income tax. with respect to their liability for self - employment taxes, petitioners ’ brief asserts the following frivolous position : self - employment tax in the notice of deficiency respondent seeks to assert self - employment tax. self - employment taxes are imposed only upon the operations of a “ trade or business ”. “ trade or business ” is defined in the internal revenue code as “... the performance of the functions of a public office. ” see irc 7701 ( a ) ( 26 ). self - employment tax also depends upon the definition of “ trade or business ” as in irc 162. irc section 162 makes no changes	T. C. Memo. 2008 - 272 UNITED STATES TAX COURT HOWARD & REBECCA PATE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10006 - 07. Filed December 9, 2008. Howard and Rebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION COHEN, Judge: Respondent determined deficiencies of $ 16, 339 and $ 19, 409 in petitioners ’ Federal income taxes for 2003 and 2004, respectively. Respondent also determined penalties under section 6662 (a) of $ 3, 267. 80 and $ 3, 881. 80 for 2003 and 2004, respectively. The issues for decision are: (1) Whether the Pate Association and Pate Joint Venture are disregarded for Federal - 2 - tax purposes and their inxom4 for the years in issue is attributed to petitioners; (2) whether petitioners are liable for self - employment tax; (3) whether petitioners are entitled to any deductions beyond those conceded by respondent; and (4) whether petitioners are liable for the penalties under section 6662 (a ). Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. FINDINGS OF FACT Petitioners resided in Texas at the time that they filed their petition. During #00$ and 2004, petitioner Howard W. Pate (Mr. Pate) conducted a business as a pipeline inspector and consultant. Mr. Pate worked exclusively for Anadarko Petroleum Corp. or its affiliate, Anadarko Gathering Co. (Anadarko ). Anadarko reported nonemployee compensation on Forms 1099 - MISC, Miscellaneous Income, that it issued to Mr. Pate for those years. The amounts received by Mr. Pate and reported as nonemployee compensation were $ 98, 200 for 2003 and $ 107, 065 for 2004. During 2003 and 2004, Rebecca Pate (Ms. Pate) was employed full time as a school teacher for the Bryan Independent School District in Bryan, Texas. Petitioners had two young children living at jPme wuriMg the years in issue. - 3 - Petitioners owned approximately 52 acres of land in Bryan, Texas. By the end of 2004, petitioners maintained no more than 30 cows on the property. They did not sell any cows or calves during 2003 or 2004. Petitioners did not maintain books and records of their cattle activity or any record showing profit and loss from that activity. Mr. 9a%e was away from home on business much of the time, leaving Ms. Pate and their children to feed the cattle. Petitioners ’ cattle activity was not conducted in a businesslike manner and was not operated with an actual and honest profit objective. Petitioners filed Forms 1040, U. S. Individual Income Tax Return, for 2003 and 2004. The amounts paid to Mr. Pate in relation to his business, $ 98, 200 for 2003 and $ 107, 065 for 2004, were initially set out as gross income on Schedules C, Profit or Loss From Business. Petitioners, however, reduced these gross income amounts to zero by claiming “ other expenses ” of equal amounts. Petitioners supposedly validated these Schedule C expenses by noting that the business was “ pass thru ” and a “ Form 1099 issued to above taxpayer ID # are properly reported ” for 2003 “ on Schedule E, page 2. Joint Venture ” and for 2004 “ on Form 1120 S ”. The gross income set out on each Schedule C was therefore not included in the computation of taxable income. The 2003 Schedule E, Supplemental Income and Loss, reflected a much smaller amount of income, $ 49, 820, than that set out on - 4 - Schedule C, $ 98, 200. Petitioners reported that this income had been earned by the “ Pate Joint Venture ”. Petitioners filed the 2004 Form 1120S, U. S. Income Tax Return for an S Corporation, for a so - called Pate Association that used the same address as petitioners ’ residence. The Form 1120S reported gross receipts of $ 107, 289, claimed cost of goods sold of $ 15, 594 and business deductions of $ 63, 959, and reported net business income of $ 27, 736. The Pate Association and Pate Joint Venture were concepts that, in Mr. Pate ’ s words, “ put all of our stuff under one and so we could file everything as one to make it easy for us to file our income tax. ” Mr. Pate did not know whether the Pate Association and Pate Joint Venture were one and the same or two separate entities. These two concepts, wh7sh had no purpose other than to reEuVe petitioners ’ Federal income taxes, had been suggested by Richard Ohendalski, a certified public accountant (C. P. A.) associated with the Legacy Group. Employees of the Legacy Group prepared petitioners ’ income tax returns for 2003 and 2004. As a result of the manner in which their Federal income tax returns for 2003 and 2004 were prepared, petitioners failed to report self - employment tax due on Mr. Pate ’ s business profit. In addition, deductions claimed as business deductions included personal expenses and other nondeductible items. The amounts and - 5 - the nature of the specific items claimed were not disclosed on petitioners ’ returns. During an audit of their Federal income tax returns for 2003 and 2004, petitioners presented various receipts and schedules to support deductible business expenses. Only the following amounts were substantiated to the satisfaction of respondent: Year Description Amount 2003 Repairs $ 309 Utilities and phone 1, 809 Automobile 18, 948 Dues & fees 216 Legal / accounting 425 2004 Automobile 21, 890 Telephone 904 OPINION A taxpayer has the right to elect a business form to minimize or altogether avoid the incidence of taxation by any means that the law permits. See Gregory v. Helvering, 293 U. S. 465, 469 (1935 ). While a taxpayer is free to adopt a corporate or partnership form of doing business, the entity must have been organized for a substantial business purpose or actually engage in substantive income - producing activity in order to be recognized as a separate taxable entity. See Commissioner v. Culbertson, 337 U. S. 733, 743 (1949 ); Moline Props. , Inc. v. Commissioner, 319 U. S. 436, 439 (1943 ). The Government, however, is not required to simply accept a taxpayer ’ s election of business form where that form is unreal. Higgins v. Smith, 308 - 6 - U. S. 473, 477 (1940 ). Instead, the Government should disregard such an entity, as any other result would QllIw the schemes of the taxpayer to supersede the law. Id. Mr. Pate testified and petitioners do not deny that they adopted their tax - reporting methodology solely for tax reasons. The so - called Pate Association and Pate Joint Venture had no business purpose. They merely supported a methodology designed to avoid reporting and paying Federal income tax and self - employment tax on Mr. Pate ’ s earnings during the years in issue and to allow the amounts and the nature of particular expenses to be concealed. Petitioners could not provide credible evidence that the Pate AWsociatiLn and Pate Joint Venture were viable entities selarat# from petitioners for Federal tax purposes. Because these “ entities ” have no economic substance and separate legal existence, the income in issue is attributed to petitioners and subject to Federal income tax. With respect to their liability for self - employment taxes, petitioners ’ brief asserts the following frivolous position: Self - employment tax In the notice of deficiency respondent seeks to assert self - employment tax. Self - employment taxes are imposed only upon the operations of a “ trade or business ”. “ Trade or business ” is defined in the Internal Revenue Code as “. .. the performance of the functions of a public office. ” See IRC 7701 (a) (26 ). Self - employment tax also depends upon the definition of “ trade or business ” as in IRC 162. IRC section 162 makes no changes	T.C. Memo. 2008-272 UNITED STATES TAX COURT HOWARD & REBECCA Petitioner v. COMMISSIONER OF REVENUE, Respondent Docket No. 10006-07. Filed December 9, 2008. Howard and Rebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION COHEN, Judge: Respondent determined deficiencies of and $19,409 in petitioners’ Federal income taxes for 2003 and 2004, respectively. Respondent also penalties under section 6662(a) of $3,267.80 and $3,881.80 for 2003 and 2004, respectively. The issues for are: (1) Whether the Pate Association and Pate Joint are disregarded for - 2 - tax purposes their income for the years in issue is attributed to petitioners; (2) petitioners liable for self-employment tax; (3) whether petitioners are entitled to deductions beyond conceded by respondent; and (4) whether petitioners are liable for the penalties section 6662(a). Unless otherwise indicated, all section references to the Internal Revenue in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. FINDINGS OF FACT Petitioners resided in Texas at the time that they filed their petition. During 2003 and 2004, petitioner W. Pate (Mr. Pate) conducted a as a pipeline inspector and consultant. Mr. Pate worked exclusively for Anadarko Petroleum Corp. or its affiliate, Anadarko Gathering Co. (Anadarko). Anadarko reported nonemployee compensation on Forms 1099-MISC, Miscellaneous Income, that it issued to Pate for those years. The amounts by Mr. Pate and reported as nonemployee compensation were $98,200 for 2003 and $107,065 for During 2003 and 2004, Rebecca Pate (Ms. Pate) was employed full time as a school teacher for the Independent School District in Bryan, Texas. had young children living at home during years in - 3 - Petitioners owned approximately 52 acres land in Bryan, Texas. By end of 2004, petitioners maintained no more than 30 cows on the property. They did not sell cows calves during 2003 2004. Petitioners did not maintain books and records of their cattle or any record showing and loss from that activity. Mr. Pate was away from home on business much of the time, leaving Ms. Pate children to feed the cattle. Petitioners’ cattle activity was not conducted in a businesslike manner and was not operated with actual and honest profit objective. Petitioners filed Forms 1040, U.S. Individual Income Tax for 2003 and 2004. The amounts paid Mr. Pate in relation to his business, $98,200 for 2003 and $107,065 for 2004, were initially set out as gross income Schedules C, Profit or Loss From Business. Petitioners, however, reduced gross income amounts zero by claiming “other expenses” of equal amounts. Petitioners supposedly validated these Schedule C expenses by noting that the business was “pass thru” and a 1099 issued to above taxpayer ID# are properly reported” for 2003 Schedule E, page 2. Joint Venture” 2004 “on Form 1120 S”. The gross income set out on each Schedule C was not included the computation of taxable income. 2003 Schedule E, Supplemental Income and Loss, reflected smaller of income, than that set on - 4 - Schedule C, $98,200. Petitioners reported that this income had been earned the “Pate Joint Venture”. Petitioners filed the Form U.S. Income Tax Return for an S Corporation, a so-called Association that the same address as petitioners’ residence. The Form 1120S reported gross receipts of $107,289, claimed cost of goods sold of $15,594 and business deductions of $63,959, and reported net business income The Pate Association and Pate Joint Venture concepts that, in Mr. Pate’s words, “put all of our one and so we could file everything one to make it easy for us to file our income tax.” Mr. Pate did not know whether the Pate Association and Pate Joint Venture were one the same or two separate These concepts, which had no purpose than to reduce petitioners’ Federal taxes, had been suggested by Richard Ohendalski, a certified public accountant (C.P.A.) associated with the Legacy Group. Employees of the Legacy Group prepared petitioners’ income tax returns for 2003 2004. As result of the manner in which their Federal income tax returns for 2003 and 2004 were prepared, petitioners failed to report self-employment tax due on Pate’s business In addition, deductions claimed as business deductions included personal expenses and other nondeductible items. The amounts and - 5 - the nature of the specific items claimed were disclosed on petitioners’ returns. During an audit of their Federal income tax returns for 2003 and 2004, petitioners presented various receipts and to support deductible business expenses. Only the following amounts were to the satisfaction of respondent: Year Description Amount 2003 Repairs $309 Utilities and phone Automobile Dues & fees 216 Legal/accounting 425 2004 Automobile 21,890 Telephone 904 OPINION taxpayer the right elect a business form minimize or altogether avoid incidence of taxation by any means that the law permits. See Helvering, 293 U.S. 465, 469 (1935). While a taxpayer is free to adopt corporate or partnership form doing business, the must have been organized for substantial business purpose or actually in income-producing activity to be as a taxable entity. See Commissioner v. Culbertson, 337 U.S. 733, 743 (1949); Props., Inc. v. Commissioner, 319 U.S. 436, 439 (1943). The Government, however, is not to simply accept a taxpayer’s election of form that form is unreal. Higgins v. Smith, 308 - 6 - U.S. 473, 477 (1940). Instead, the Government should disregard such an entity, as any other result would allow schemes of the taxpayer to supersede the law. Id. Mr. Pate testified and petitioners do not deny that they adopted tax-reporting methodology for tax reasons. The so-called Pate Association and Pate Joint Venture had no business purpose. merely supported a methodology designed to avoid reporting and paying Federal income and self- tax on Mr. Pate’s earnings during the years in issue and to allow the amounts and the nature of particular expenses to Petitioners could not provide credible evidence that the Pate and Joint Venture were viable entities from petitioners for tax purposes. Because these “entities” have no economic substance and separate legal existence, issue is attributed to petitioners and subject to Federal income tax. With respect to their liability for self-employment petitioners’ brief the following frivolous position: Self-employment tax In the notice of deficiency respondent seeks to assert self-employment tax. Self-employment taxes are imposed only upon the operations of a “trade or business”. or business” is defined in Internal Revenue Code as “...the of the functions of a public office.” See IRC 7701(a)(26). tax also depends upon the definition of or business” as in IRC 162. IRC section 162 makes no changes	t.c. MEMo. 2008-272 UNITED sTATes TAX COUrT howArD & rEBeCcA PAtE, PetITioNer V. CoMmisSioNer oF INTErNal ReVenue, reSponDEnt DOCKet nO. 10006-07. fIlEd dECEMbER 9, 2008. HoWArd And REBeccA pAtE, Pro SESe. Randall dURfEE AnD goRDON SANZ, For RESponDeNT. MeMoranDum fINdINGs of faCt aNd OpinIOn COhen, jUdGe: rEsPoNDenT deteRMiNED deFiCIenCies of $16,339 anD $19,409 In PeTiTioneRS’ FedERAL iNCOme TaXEs FOR 2003 and 2004, RespeCTiVEly. respoNdeNT alSo DeTErMinEd pENALTies UnDer SeCTiON 6662(A) of $3,267.80 And $3,881.80 FOR 2003 and 2004, REspeCtiVeLY. The ISSuES FoR DEcIsIOn aRE: (1) wHeTHEr thE pAte ASsoCIAtIon AnD PaTe JOiNT venturE aRE DISrEGarDED fOr federAl - 2 - Tax PurpoSes AND thEIR iNcoMe FOr ThE yEArs iN IsSUe Is atTrIbuted to PetItiOneRs; (2) whEthER PeTITionERs ARE LiAbLE fOR sElf-eMPLoYment TAx; (3) WhEtheR PEtItioNers are eNTITLed to aNy DEduCtIoNs beYOnd tHoSe cOncEDeD BY reSPoNdent; aNd (4) wHETHeR pETITiOneRS ARe liABLE fOR THe PeNaLTies UnDEr seCtiON 6662(A). UnLESs otHerwISE inDicAted, ALl SECTioN reFERenCES Are To ThE interNAl ReVenue COdE IN EfFECt FOr THE yeArS IN IsSUe, ANd All RULe REFeRenCEs aRe tO thE TAX cOURT RuLEs OF PRAcTiCe anD prOceDure. fInDINGs OF FaCt PetITioNErS ResIDed iN texas at tHE tIme tHAt tHey fILEd ThEir PeTItiON. DURINg 2003 anD 2004, PeTItIoNER HoWaRd w. pATE (MR. PaTe) cONDucTed A BUsinEss aS A piPElIne iNsPEcToR ANd consuLtaNT. Mr. PatE woRKEd ExcLUsIvELy fOR ANadArKO petROLeUM CorP. Or ItS aFFiLiaTE, anaDaRkO GAThERiNg cO. (aNADarko). aNadARKO RepORteD NoNeMployEE COMPEnsATION ON foRMs 1099-MiSC, miSCellaneOUS inCoME, that it IssUed to mR. paTE fOr tHoSE yeARs. THe aMoUNtS REcEiVeD by Mr. PaTE AnD rePORted as NONEmPLOYee comPENsAtiON WErE $98,200 foR 2003 And $107,065 For 2004. duRiNg 2003 ANd 2004, rEBeCCA Pate (ms. pAte) WaS EmPLOYED fUll timE aS A SchOOL TeAChER For The BRyAn inDepEndEnT SCHOOl disTriCT in bRyAn, TeXAs. PetITIONERS HAD Two yOUNg childReN liViNg at homE DurIng tHE YeArs in IssuE. - 3 - peTitioNers OWNeD aPpRoXImAteLY 52 aCREs oF LAnd in bRYan, TExAs. by tHe EnD OF 2004, peTiTionerS MAINTaInED no MOre ThaN 30 cOWS ON THe PROpeRTY. thEy did Not seLl aNY COWS Or CALvEs durINg 2003 or 2004. PetitIOnERS did nOt MaINTAiN BOOks AND ReCOrds of ThEIr CATTlE aCTIVity OR Any RecOrd ShowiNg Profit and LOsS FroM tHAt AcTivITY. Mr. PATe waS awAy fROm HOme ON BUSiNeSs Much Of The TIME, lEAvING Ms. PaTE aNd tHEIR cHilDrEn To fEed tHe CaTtlE. petiTioNERs’ caTTLE ACtIvITy WaS NOt cOndUCteD In a bUSinessLIkE MANNEr anD waS NOT OpeRATed wITH An AcTuaL anD HoNeST PrOfiT OBJeCtIvE. PeTITIOneRS FILeD forMs 1040, U.S. IndivIDUAl incoME tAx RetURn, FOr 2003 aND 2004. ThE AmOUNTs paid TO mR. PATe In relAtion To hIS BUSiNESS, $98,200 foR 2003 aNd $107,065 For 2004, WeRE iNitIALly seT OUT AS GRoss inCoME on sChEdUles c, pROFit oR LOSs FRoM BusINESS. petitIONers, HoWevER, ReDUCed THese grOSS INCOMe amounTs TO ZerO by cLAIminG “OTHeR ExPEnsEs” Of EqUAL AmOUnts. pETITIOnERs supPOsEdlY vAliDaTEd tHESE ScHEDUle C expEnses BY NOTinG that The BusInesS WAs “paSS tHRU” AnD a “forM 1099 ISSUeD to abOVe TAxPayer id# ARE properly rEpOrtED” fOR 2003 “On SCheDulE e, PaGE 2. JOiNt vEnturE” ANd fOr 2004 “ON forM 1120 s”. THE GRoss INcoME seT ouT On Each SchEdULE c Was tHerEfORe noT InClUdeD IN THE comPuTaTIon OF TAXaBLe iNcoME. THe 2003 SCHEDULE e, SuppLeMENtAL iNCOmE ANd LosS, rEflECTed A mUch SMaLLEr aMOUnt oF InCoME, $49,820, tHan thaT seT OuT ON - 4 - ScHedULE c, $98,200. pEtitioneRS rEpoRTED ThAT ThiS INCome HAd bEen EARNED BY thE “pAte JoInT VenTure”. peTITIOners fILed THE 2004 FoRM 1120S, U.S. iNCome tax ReTUrn For an s CORporaTIOn, fOR A SO-callEd paTE asSOCIaTION ThAT USEd tHe SAmE ADDreSs AS petiTIONErs’ REsIdENCE. tHe foRm 1120s REPOrtED Gross receIPtS of $107,289, CLaimEd COsT OF goOds SOLd of $15,594 And BuSINeSs DEDucTIONs Of $63,959, ANd rEPORTEd nEt bUSineSS IncOmE oF $27,736. tHE paTe ASsOciATION AND PaTE jOint vENTURE wERe concEPts THAT, IN mR. Pate’s wordS, “PUt aLL of ouR sTUFF uNdER One ANd so We CoulD fILe eVerythING aS OnE tO mAkE it eaSY FoR Us tO FILE Our INcOme taX.” mr. PAte DId nOt KnOW whEtheR THe pAte ASSoCIAtION AND PaTe JOINt veNTURE WerE onE aND thE same OR Two separAtE eNTITIeS. thESe TWO cONCeptS, wHICh hAd No PurpOsE otHer THAN To REduCe PEtItIONerS’ FEDeRal INCoMe taXEs, had BEEn SuggeSTeD bY rIcHARd oHEndaLSKI, a cerTIFIED PublIc acCOUNtant (c.P.a.) AssOCiATEd With The LeGAcy grOup. EMPlOYEeS of thE LegACy GROuP pRePArEd petITIOnERS’ INCoMe TaX reTuRns for 2003 And 2004. As a ResuLT OF ThE MaNNEr In whicH THEIR FeDERaL INcomE tax rETuRnS for 2003 aNd 2004 WeRe PrePARED, PetITiOnErs fAILEd TO rEport SElF-emPloymENT tAx DUe On mR. Pate’S BUsINESs prOfIT. In ADDITioN, dedUCtionS CLaimEd AS buSINeSs dEDuctIONS InCLuDeD pERSonal expEnses AnD OTher nondeducTible iTEMS. The AmOuNts AnD - 5 - tHe natUrE oF tHE SPecifIc ITems cLaiMEd were Not diScLoSed oN Petitioners’ RETurnS. dURInG AN AUdit Of theiR fEDERal iNCome TAX retURnS fOr 2003 And 2004, PeTITIoNers PRESEntED vArIoUs ReceIpTs AND SChedUleS tO SUPPorT DEDuCTibLe bUSiNeSS EXpEnSeS. onLY tHe FOllowiNg AMOuNTs wEre SUBstAntiATed To THe SAtISFaCTioN oF RespoNDenT: yEAR dEsCRiPTION AMOuNt 2003 REpAirs $309 UTIliTies and PhONe 1,809 autOMOBIle 18,948 duEs & fees 216 leGal/AccOuNTING 425 2004 aUtOmObilE 21,890 telEPhonE 904 oPinIon a TAxpaYeR HaS tHE rigHT tO eleCt A BusInEsS Form to MInIMIzE OR aLTOGEthER avoiD ThE iNCiDeNce OF taXATION By ANy MEANS THat The law pERMIts. see GReGORY V. HElVERING, 293 U.s. 465, 469 (1935). wHILE a TaxpayeR iS FrEE To aDoPt A CORPoraTe OR PArtNeRshIP forM OF DoING busiNEss, the enTIty musT havE BeeN organizED FOR A sUBStANtIal BUSiNeSs puRPose or ACtUALlY ENgage iN SUbsTanTIVE inCoME-pRoduCIng ACtivITY iN OrDer To be reCOgNIZEd as a SEpARATe tAxABle enTitY. sEe cOmmisSIOneR V. CuLbeRTSon, 337 U.S. 733, 743 (1949); MOlINe PropS., inc. V. COmMiSSIoNEr, 319 u.s. 436, 439 (1943). ThE GoVeRNMENt, HoweVeR, iS noT rEQuiREd To SiMply aCCEPt a TaXPAYEr’S ELeCtiOn Of buSinESs fOrM WhErE tHAt fOrm Is unrEaL. HiGginS V. sMitH, 308 - 6 - u.s. 473, 477 (1940). iNStEAD, The GoveRnMent ShouLd DiSreGarD such AN enTITY, as aNY OTHEr REsULt WOulD allow THe SChEmES OF THe TaxPayeR to sUPerSeDE tHe lAW. id. mr. PatE teStIfiED and PEtitIoNERS do nOt dEny tHAt THeY ADOPTed tHeir TAX-rePOrTIng mETHodOLogy soLELY fOr TAX rEASOnS. the SO-CalLEd paTE aSsoCiAtIoN aND paTe JOiNt VENtuRE haD No BuSiNesS pUrPOse. They merELy SuPPortED A meTHoDoLoGY deSIgNEd TO avOId rePOrTING aNd payinG federAL iNcOMe taX aNd selF- emplOymeNt TAx ON mR. pAtE’S earnIngs DUrIng ThE years IN iSSUe anD to allow THE amoUntS AnD tHe NATure oF PaRtICulaR EXPeNsEs tO bE CONCEALed. petitIoNers coulD NOT proviDe creDiBLE EvideNce THAT THE paTe aSSoCIaTIon aNd pAtE jOInT venTurE WERE VIaBlE enTITies sepARATE FroM PeTITIOneRS For FeDERal Tax pURposes. BEcAusE theSe “ENtiTIes” hAVE No ECOnomIC subStANCe AnD sEPaRAtE lEGAL eXiSTEnCE, THE InCoME IN IssuE is ATTriBUtED TO PeTitIoNeRs AND SUBjeCt to fedEraL inComE taX. WITH resPEct tO Their LiaBILitY FoR SeLf-EMPloyment tAxes, petitIONeRS’ BrIeF AsseRTs ThE folLOwiNG frivOlOUs pOsITioN: sELF-emPlOyMENt TaX IN The NOtICe of dEFIciENcY RESPOndeNT sEeKS To AsSert SELF-EMPlOyMENT tAx. sElf-emPloyMEnt taxes ArE iMpOSEd OnLY UPOn THE opEratiONS oF a “traDE Or BUsINESs”. “TrAdE Or BusiNesS” Is DEfineD iN The INTERnAl REVenUE Code AS “...tHe perFOrManCE Of ThE fUNcTiOnS Of A puBLIc oFFice.” See IRC 7701(A)(26). SelF-EmPlOyMent Tax ALso DepEnds upOn thE DeFinItion OF “tRade oR busInESS” AS in IrC 162. IRc secTIOn 162 MAkes nO ChANGES	T.C. Memo. 2008-272UNITED STATES TAX COURT HOWARD &REBECCA PATE, Petitioner v. COMMISSIONEROF INTERNAL REVENUE, Respondent Docket No. 10006-07.Filed December 9, 2008. Howard andRebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OFFACT AND OPINION COHEN, Judge: Respondent determineddeficiencies of $16,339 and $19,409 in petitioners’ Federal income taxes for 2003 and 2004, respectively. Respondent also determined penalties undersection 6662(a) of $3,267.80 and $3,881.80 for 2003 and 2004, respectively. The issues fordecision are: (1) Whether thePate Association and Pate Joint Venture aredisregarded for Federal - 2 - tax purposes and their income for the years in issue is attributedto petitioners; (2) whether petitioners are liable for self-employment tax; (3) whether petitionersare entitled to any deductions beyond those conceded by respondent; and (4) whether petitioners are liablefor the penalties under section 6662(a). Unless otherwise indicated, all section references are tothe Internal Revenue Code in effect forthe years in issue,and all Rule references are to the Tax Court Rules of Practice and Procedure.FINDINGS OF FACT Petitioners resided in Texasat the time that they filed their petition. During 2003 and 2004, petitioner Howard W. Pate (Mr.Pate) conducted abusiness as a pipelineinspector and consultant.Mr. Pate worked exclusively for Anadarko Petroleum Corp. or its affiliate, Anadarko GatheringCo. (Anadarko). Anadarko reported nonemployee compensation on Forms 1099-MISC, Miscellaneous Income, that it issued to Mr. Pate for those years. The amountsreceived by Mr. Pate and reported asnonemployee compensation were $98,200 for 2003 and$107,065 for 2004. During2003 and 2004,Rebecca Pate (Ms. Pate) was employed fulltime as a school teacher for the Bryan IndependentSchool District in Bryan, Texas. Petitioners had two young children living at home during the years in issue. - 3 -Petitioners owned approximately 52 acres of land in Bryan, Texas. By the end of 2004, petitionersmaintained no more than 30 cows on theproperty. They did not sell any cowsor calves during 2003 or 2004. Petitioners did not maintain books and records of theircattle activity or any record showing profit and loss from that activity. Mr. Pate was away from home on business much ofthe time, leaving Ms. Pate and their children to feed the cattle. Petitioners’ cattle activity was not conducted in a businesslike mannerandwas not operated with an actual and honestprofit objective. Petitioners filed Forms1040, U.S. Individual Income Tax Return,for 2003 and 2004. The amounts paidto Mr. Patein relation tohis business, $98,200 for 2003 and$107,065 for 2004, were initiallyset outas grossincome on Schedules C, Profitor Loss From Business. Petitioners, however, reduced these gross income amounts to zero by claiming “otherexpenses” of equal amounts. Petitioners supposedly validated theseSchedule C expenses by noting that thebusinesswas “pass thru” and a “Form 1099 issuedto above taxpayerID# are properly reported”for 2003 “on Schedule E, page 2.JointVenture” and for 2004 “on Form 1120 S”. The gross income set out on each Schedule C was therefore not includedin the computation of taxable income. The 2003 Schedule E, Supplemental Income andLoss,reflected a much smaller amount of income, $49,820, than that set out on - 4 - Schedule C, $98,200. Petitioners reported that this income hadbeen earnedby the “Pate Joint Venture”. Petitioners filedthe 2004 Form 1120S, U.S. Income Tax Returnfor an S Corporation,fora so-calledPate Association that used the same address as petitioners’ residence. The Form 1120S reported gross receiptsof$107,289, claimedcost ofgoods sold of $15,594 and business deductions of $63,959,and reported net business income of $27,736. The Pate Association and Pate Joint Venture were concepts that, in Mr. Pate’s words,“put all of our stuff under one and so we could file everything as one to makeit easy for us to file our income tax.”Mr. Pate did not know whetherthe Pate Association andPate Joint Venture wereone andthe same or two separate entities. These two concepts, which had no purpose other than toreduce petitioners’ Federalincome taxes, hadbeen suggested by Richard Ohendalski, a certified public accountant(C.P.A.) associated with the LegacyGroup. Employees of the Legacy Group prepared petitioners’income tax returns for 2003 and 2004. As a result of the manner inwhich their Federalincome taxreturns for 2003 and 2004 were prepared, petitioners failed to reportself-employmenttax due on Mr. Pate’s business profit.In addition, deductions claimed as business deductions included personal expenses and other nondeductible items. The amounts and -5 - the natureof the specific itemsclaimed were not disclosedon petitioners’ returns. During an audit of their Federal income tax returns for 2003 and 2004, petitioners presented various receipts and schedules to support deductible businessexpenses. Onlythefollowing amounts were substantiated to the satisfaction of respondent: Year Description Amount 2003 Repairs $309 Utilitiesandphone 1,809 Automobile 18,948 Dues& fees 216 Legal/accounting 425 2004 Automobile 21,890Telephone 904 OPINION A taxpayer has the right to elect abusiness form to minimize or altogether avoid the incidence oftaxationby any means that the law permits. See Gregory v. Helvering, 293 U.S. 465, 469 (1935). While a taxpayer is free to adopt acorporateor partnership form of doing business, theentity must have been organized for a substantial business purpose or actually engage in substantive income-producing activity in orderto be recognized as a separate taxable entity. See Commissioner v. Culbertson, 337 U.S. 733, 743 (1949); Moline Props., Inc. v. Commissioner, 319 U.S. 436, 439 (1943). The Government, however, is notrequiredto simply accept a taxpayer’s election of business form where that form is unreal. Higgins v. Smith,308 - 6 - U.S. 473, 477 (1940). Instead,the Government should disregard such an entity, as any other result would allow the schemes of the taxpayerto supersedethe law. Id. Mr.Patetestified and petitioners do notdeny that they adopted their tax-reporting methodology solely fortax reasons. The so-called Pate Association and Pate Joint Venture had no business purpose. They merely supported a methodology designed to avoid reporting and paying Federal income tax and self- employment tax on Mr.Pate’s earnings during the yearsin issue and toallow the amounts and the nature of particular expenses tobe concealed. Petitioners could not provide credible evidence that the Pate Association and Pate Joint Venture were viable entitiesseparate from petitioners for Federal tax purposes. Because these“entities” have no economic substance and separate legal existence, the incomeinissue is attributed to petitioners andsubject to Federal income tax. Withrespectto their liability for self-employment taxes, petitioners’ brief asserts the following frivolous position:Self-employment tax Inthe notice of deficiency respondent seeks to assertself-employment tax. Self-employment taxes are imposed only upon the operations of a “trade orbusiness”. “Trade or business”isdefined in the Internal Revenue Code as “...the performance of the functions of a publicoffice.”See IRC 7701(a)(26). Self-employment tax alsodepends upon the definitionof “trade or business” as inIRC 162. IRC section 162 makes no changes	T.C. _Memo._ 2008-272 UNITED STATES TAX COURT HOWARD & REBECCA PATE, Petitioner _v._ COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10006-07. Filed December _9,_ 2008. Howard and Rebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION COHEN, _Judge:_ Respondent determined deficiencies of $16,339 and $19,409 _in_ petitioners’ Federal income taxes for _2003_ and 2004, respectively. _Respondent_ _also_ _determined_ penalties under section 6662(a) of $3,267.80 and $3,881.80 for 2003 and 2004, respectively. The issues for decision are: (1) Whether the Pate Association and _Pate_ Joint Venture are disregarded for Federal - 2 _-_ tax _purposes_ and their income for the years in issue is attributed to petitioners; (2) whether petitioners _are_ _liable_ _for_ self-employment _tax;_ (3) whether _petitioners_ _are_ entitled to any deductions beyond those conceded by respondent; _and_ _(4)_ whether petitioners are liable for the penalties under section 6662(a). Unless otherwise indicated, all section references _are_ to _the_ Internal Revenue _Code_ in _effect_ _for_ the years _in_ issue, _and_ _all_ _Rule_ references are _to_ the _Tax_ Court _Rules_ of Practice and Procedure. FINDINGS OF FACT Petitioners resided _in_ Texas at _the_ time that they filed their petition. During 2003 and 2004, petitioner Howard W. Pate (Mr. _Pate)_ conducted _a_ business as a _pipeline_ inspector and consultant. Mr. Pate worked _exclusively_ _for_ Anadarko Petroleum Corp. or its affiliate, Anadarko Gathering Co. (Anadarko). Anadarko reported _nonemployee_ compensation on Forms 1099-MISC, _Miscellaneous_ Income, that _it_ issued to Mr. Pate for _those_ years. The amounts received by Mr. Pate and reported as nonemployee compensation were _$98,200_ for 2003 and $107,065 for 2004. _During_ 2003 and 2004, Rebecca Pate (Ms. Pate) was employed full _time_ as a school teacher for the Bryan Independent _School_ District in Bryan, _Texas._ Petitioners had two young _children_ _living_ _at_ home _during_ the years in issue. - _3_ _-_ Petitioners _owned_ _approximately_ 52 acres of _land_ in Bryan, Texas. By the _end_ _of_ 2004, petitioners maintained no more than 30 cows on _the_ property. They _did_ not sell any cows or calves during 2003 or _2004._ Petitioners did not maintain books and records of their cattle activity or _any_ record showing profit _and_ loss from that activity. Mr. Pate was away from _home_ on business much of the time, _leaving_ Ms. Pate and their children to feed the cattle. Petitioners’ cattle activity was not _conducted_ in _a_ businesslike manner and was not operated with an actual and honest profit objective. Petitioners filed _Forms_ _1040,_ U.S. Individual _Income_ Tax Return, _for_ 2003 and 2004. The amounts paid _to_ Mr. Pate in relation to his business, $98,200 for _2003_ and $107,065 for 2004, were _initially_ set _out_ _as_ _gross_ _income_ on Schedules _C,_ Profit or Loss From Business. Petitioners, however, reduced these gross _income_ amounts to zero _by_ _claiming_ “other expenses” _of_ _equal_ _amounts._ Petitioners _supposedly_ validated these Schedule C _expenses_ by noting that the business was _“pass_ thru” and a “Form _1099_ issued to above _taxpayer_ ID# are properly reported” _for_ 2003 “on Schedule E, page _2._ _Joint_ _Venture”_ and _for_ 2004 “on Form 1120 S”. _The_ gross income set out on each Schedule C was therefore _not_ included in the computation of taxable income. The 2003 Schedule E, Supplemental Income and Loss, _reflected_ a much smaller _amount_ _of_ income, $49,820, _than_ _that_ set out on _-_ 4 - Schedule C, _$98,200._ Petitioners reported that this income had been earned _by_ the “Pate Joint Venture”. Petitioners filed the _2004_ _Form_ 1120S, U.S. Income Tax Return for an S _Corporation,_ for _a_ so-called _Pate_ Association that used _the_ same address _as_ petitioners’ _residence._ _The_ _Form_ 1120S reported _gross_ receipts of $107,289, claimed cost _of_ _goods_ _sold_ of $15,594 and _business_ _deductions_ of $63,959, _and_ reported net business income _of_ $27,736. The Pate Association _and_ Pate Joint _Venture_ were concepts _that,_ in _Mr._ Pate’s _words,_ “put _all_ _of_ our stuff under one and so we _could_ _file_ everything as one to make it easy for us to _file_ our _income_ tax.” _Mr._ _Pate_ did not know whether the Pate Association and _Pate_ Joint Venture were _one_ and the same or two separate _entities._ These two concepts, _which_ had no purpose _other_ than to reduce petitioners’ Federal income _taxes,_ had been suggested _by_ Richard Ohendalski, a _certified_ public accountant (C.P.A.) associated with the _Legacy_ Group. Employees of the Legacy _Group_ prepared petitioners’ income _tax_ _returns_ for _2003_ _and_ _2004._ _As_ a result of the manner in which their Federal income _tax_ returns for 2003 _and_ 2004 were prepared, petitioners failed to report self-employment tax due on Mr. Pate’s business profit. In addition, deductions claimed as _business_ _deductions_ included _personal_ expenses and other nondeductible items. The amounts and - 5 - the nature of the specific _items_ _claimed_ were not disclosed on _petitioners’_ returns. During _an_ _audit_ _of_ their Federal income _tax_ _returns_ for 2003 and 2004, petitioners presented various receipts and schedules to _support_ deductible business expenses. Only the following amounts were substantiated to the satisfaction of respondent: Year Description Amount 2003 Repairs _$309_ Utilities and phone 1,809 Automobile 18,948 Dues & fees 216 Legal/accounting 425 2004 _Automobile_ 21,890 Telephone 904 OPINION A taxpayer has the _right_ _to_ elect a business _form_ _to_ minimize or altogether avoid the incidence of taxation by any _means_ that the law _permits._ See Gregory v. Helvering, 293 U.S. 465, 469 (1935). While a taxpayer _is_ free to adopt a corporate or partnership form of doing business, the entity must _have_ been _organized_ for a substantial business purpose _or_ actually engage in substantive _income-producing_ activity in order to be recognized as a separate taxable entity. See _Commissioner_ v. Culbertson, 337 U.S. 733, 743 (1949); _Moline_ _Props.,_ Inc. v. Commissioner, 319 U.S. 436, 439 _(1943)._ _The_ Government, however, is not _required_ _to_ _simply_ accept a taxpayer’s election of business _form_ where that form is unreal. Higgins _v._ Smith, 308 - 6 - U.S. 473, _477_ _(1940)._ Instead, the Government should disregard such an entity, as any other result would allow the schemes of the taxpayer to _supersede_ the law. Id. Mr. _Pate_ testified and _petitioners_ do not deny that _they_ adopted their _tax-reporting_ methodology solely for tax _reasons._ The so-called Pate _Association_ and Pate Joint Venture had _no_ business purpose. They merely _supported_ a methodology designed to avoid _reporting_ _and_ paying Federal income tax _and_ self- employment _tax_ on Mr. Pate’s earnings _during_ the years in issue and to allow the _amounts_ and the _nature_ of particular expenses to be concealed. Petitioners could not provide credible evidence that the Pate Association and Pate Joint Venture were viable _entities_ _separate_ from petitioners for Federal tax _purposes._ Because these “entities” have _no_ _economic_ substance and separate legal existence, the income in issue is _attributed_ to petitioners and subject to Federal income tax. With respect to their liability for self-employment taxes, petitioners’ brief asserts the following frivolous position: _Self-employment_ tax In the notice of deficiency _respondent_ seeks to _assert_ self-employment _tax._ Self-employment _taxes_ are imposed only upon the operations of a “trade or business”. “Trade or business” is _defined_ in _the_ Internal Revenue Code as “...the performance of the _functions_ of a public office.” See IRC 7701(a)(26). Self-employment tax also depends upon the definition of “trade or business” as in IRC _162._ IRC _section_ _162_ _makes_ no changes
915 F.2d 1559 Adnan International Marketing, Inc., Adnan, Inc., ManheimBMW, Inc., t/a Manheim Motorsv.Hamilton Bank, Manheim National Bank, Seese (Ronald),Lenhart (Raymond), Marks (Merrit), Kauffman (James),Dimariano (Gary), Light (Ronald E.), a/k/a Light (Ronald),Blatz (John), a/k/a Blatz (John W.), John W. Blatz, Inc. NO. 90-1286 United States Court of Appeals,Third Circuit. SEP 12, 1990 Appeal From: E.D.Pa., Reed, J. 1 AFFIRMED.	915 f. 2d 1559 adnan global marketing, inc., adnan, inc., manheimbmw, inc., t / nw u motorsv. hamilton township, manheim national bank, seese ( gary ), lenhart ( raymond ), marks ( ronald ), kauffman ( james ), dimariano ( gary ), light ( ronald e. ), a / k / j light ( ronald ), blatz ( john ), a / k / a blatz ( john w. ), john w. blatz, inc. no. 309 - 1286 united states court of appeals, third circuit. sep 12, summary ruling from : e. d. pa., reed, j. 1 affirmed.	915 F. 2d 1559 Adnan Ibterna6ional Marketing, Inc. , Adnan, Inc. , Manhe7mBM1, Inc. , t / a Manheim Motorsv. Hamilton BSgk, Manheim National Bank, Seese (gonals ), Lenhart (Raymond ), Marks (Merrit ), Kauffman (James ), Dimariano (Gary ), Lgjt (R)nalW E. ), a / k / a Light (Ronald ), Blatz (John ), a / k / a Bpafz (John W. ), JhB W. Blatz, Inc. NO. 90 - 1286 United States CpurY of Appeals, Thlrc Circuit. SEP 12, 1990 Appeal From: E. D. Pa. , Reed, J. 1 AFFIRMED.	915 F.2d 1559 Adnan International Marketing, Inc., Inc., ManheimBMW, Inc., t/a Manheim Motorsv.Hamilton Bank, Manheim National Bank, Seese (Ronald),Lenhart (Raymond), Marks (Merrit), Kauffman (James),Dimariano (Gary), Light (Ronald E.), a/k/a Light (Ronald),Blatz (John), a/k/a Blatz (John W.), John W. Inc. NO. 90-1286 United States Court Appeals,Third SEP 12, 1990 Appeal From: E.D.Pa., Reed, J. AFFIRMED.	915 f.2D 1559 adNan iNTErNatioNAL mARketING, INc., AdnaN, INc., maNHEIMBMW, iNc., t/A MAnHeIM moTORSv.haMilToN bANK, MaNHeiM naTIOnAL BANk, SeesE (ROnalD),LEnHARt (rAYMonD), MaRKs (MErRIt), kaufFmAn (JamES),dImaRIAnO (gARY), lIGhT (RoNALd E.), A/K/A LIghT (ROnALD),bLAtZ (joHN), A/K/A BlatZ (jOHn w.), JOhN w. Blatz, iNc. No. 90-1286 UniTeD STatEs CoURt oF APPealS,THiRd ciRCUiT. SeP 12, 1990 ApPeal FROm: e.D.pA., ReEd, J. 1 aFFirMED.	915 F.2d 1559 Adnan International Marketing, Inc., Adnan, Inc., ManheimBMW, Inc., t/a ManheimMotorsv.Hamilton Bank, Manheim National Bank, Seese (Ronald),Lenhart (Raymond), Marks (Merrit),Kauffman (James),Dimariano (Gary), Light (Ronald E.), a/k/a Light(Ronald),Blatz (John),a/k/a Blatz (John W.), John W. Blatz, Inc. NO. 90-1286 United States Court of Appeals,Third Circuit. SEP12,1990 Appeal From: E.D.Pa.,Reed,J.1 AFFIRMED.	915 F.2d 1559 _Adnan_ International Marketing, _Inc.,_ Adnan, Inc., _ManheimBMW,_ Inc., t/a Manheim Motorsv.Hamilton Bank, Manheim National Bank, Seese _(Ronald),Lenhart_ (Raymond), Marks _(Merrit),_ Kauffman (James),Dimariano (Gary), Light _(Ronald_ E.), _a/k/a_ Light (Ronald),Blatz _(John),_ a/k/a Blatz (John W.), John W. Blatz, _Inc._ NO. 90-1286 United States Court of _Appeals,Third_ Circuit. SEP _12,_ 1990 _Appeal_ From: E.D.Pa., Reed, J. 1 AFFIRMED.
576 So.2d 666 (1991) Jimmy R. HASTINGS v. Bobby HANCOCK d/b/a B & P Used Motors. Civ. 7845. Court of Civil Appeals of Alabama. February 6, 1991. 667 Clyde D. Baker, Guntersville, for appellant. No brief for appellee. ROBERTSON, Presiding Judge. Following a hearing in which the employee, Jimmy Hastings, was awarded workmen's compensation benefits, he moved for an amended judgment, requesting double compensation pursuant to § 25-5-8(e), Code 1975. That code section provides: "Penalties for failure to secure payment of compensation; injunctions. Any employer required to secure ... compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $25 nor more than $1,000. In addition thereto, any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee." § 25-5-8(e), Code 1975 (emphasis added). The trial court's order in this case that awarded the employee benefits made no finding concerning whether the employer had failed to secure workmen's compensation insurance. However, upon the employee's motion to amend the final judgment, the court entered the following order: "The claim for the penalty under the aforesaid code section [§ 25-5-8(e)] was not made a part of the plaintiff's complaint and was not litigated on trial of this cause. Further, there is no evidence before the court of whether the defendants have opted to be self-insurers, under sub-paragraph (b) of the aforesaid code section, as they have the right to do." This court has previously determined that the double award penalty provision of § 25-5-8(e), Code 1975, is mandatory. Rush v. Heflin, 411 So.2d 1295 (Ala.Civ. App.1982). In fact, this court specifically noted in Rush that "there is no legal right to relief from a penalty which is required to be imposed by law." Further, because the code section was found to be valid, this court held that "it had to be applied by the trial court." Rush at 1296. However, the trial court in this case refused to impose the penalty for two reasons. First, the trial court determined that no claim for the penalty was made as a part of the employee's complaint and that the issue was not litigated. Second, the trial court found that no evidence was presented concerning whether the employer had elected to be a self-insurer. (Such an election, if proven, would have removed the employer from the application of the penalty provision. § 25-5-8(b), Code 1975.) Concerning the trial court's finding that no claim for the penalty was made or litigated, we note the following. The employee's complaint requested such benefits as he was entitled to pursuant to the workmen's compensation laws of Alabama. Further, the court is bound to grant whatever relief is appropriate in a case based on 668 the facts proved, regardless of whether the complaint specifically demanded such relief. Rule 54(c), A.R.Civ.P.; Johnson v. City of Mobile, 475 So.2d 517 (Ala.1985). The following testimony was given by Pat Hancock, the employer's wife, who worked as a clerical employee of the employer: "MR. BAKER: When Mr. Hastings was hurt, you went to the hospital in Fort Payne and guaranteed his hospital bill, did you not? "MRS. HANCOCK: Yes, sir. "MR. BAKER: Did you tell them it was workmen's compensation? "MRS. HANCOCK: No, sir, because we didn't have workmen's comp. "MR. BAKER: You did not have any workmen's comp. coverage at the time of this injury? "MRS. HANCOCK: No, sir." ". . . "MR. MCGEE (employer's lawyer): Did you, in fact, make arrangements at the hospital for the medical bills? "MRS. HANCOCK: Yes, sir. ". . . "MR. MCGEE: Why did you do that? "MRS. HANCOCK: Well, I knew he had gotten hurt on our property and I just figured that it was because he had got hurt on our property, it was our responsibility." From this testimony, we find that the employee proved such facts as would entitle him to recover the double penalty, regardless of the fact that the employee failed to specifically request this relief in his complaint. Johnson. In short, because the employer had no workmen's compensation insurance as required by law, the penalty was due to be imposed. Rush. However, we must now examine whether the trial court's second legal conclusion correctly prevented the employee from recovering the double benefits penalty. We recognize that the provisions of § 25-5-8 do not set out who has the burden of establishing whether an employer is self insured, and, further, we note that this issue has not been previously addressed by the appellate courts of this state. However, because proof of self-insurance would prevent an employer from having to pay the double penalty provision, we find that establishing such proof should properly be the employer's burden. In Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930), our supreme court was confronted with the question of who had the burden of proof with regard to establishing the number of employees regularly employed by an employer. In that situation, the court noted that because the code section concerning the number of employees operated to remove the employer from having to comply with workmen's compensation laws, "the burden is upon the employer to bring itself within the terms of that exception." Mobile Liners, 220 Ala. at 566, 126 So. at 629 (citation omitted). Similarly, proof of self-insurance in this case would remove the employer from having to comply with the workmen's compensation laws, and we find that "the burden is upon the employer to bring itself within the terms of that exception." Mobile Liners. Our examination of the record discloses that the employer in this case failed to offer any evidence tending to establish that he was self-insured. In fact, all of the testimony previously referred to indicates just the opposite. Likewise, we note that at the outset of the case, the employer contended he was not subject to the requirements of the workmen's compensation act because he did not have enough employees; however, the court found otherwise. The employer made no contention that he was exempt from the workmen's compensation laws due to his having been authorized by the director of industrial relations to operate as a self-insurer. Consequently, we find that the trial court erred in not applying the mandatory penalty provision of § 25-5-8(e). This case is reversed and remanded with directions that the trial court enter a judgment consistent with this opinion. *669 REVERSED AND REMANDED WITH DIRECTIONS. THIGPEN and RUSSELL, JJ., concur.	576 so. 2d 666 ( 1991 ) jimmy r. hastings v. bobby hancock d / b / a b & p used motors. civ. 7845. court of civil appeals of alabama. february 6, 1991. * 667 clyde d. baker, guntersville, as appellant. no brief for appellee. robertson, presiding judge. following a dispute in which the employee, willie hastings, was awarded workmen ' s compensation benefits, he moved for an amended judgment, requesting double compensation pursuant to § 25 - 5 - 8 ( e ), code 1975. that case section provides : " penalties for failure should secure payment of compensation ; injunctions. any employer required to secure... compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $ 25 worth more than $ 1, 000. in addition thereto, any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee. " § 25 - 5 - 8 ( e ), code 1975 ( emphasis added ). the trial court ' s order in this case that awarded the employee benefits made no finding concerning whether the employer had failed to secure workmen ' s compensation insurance. however, upon the employee ' s motion to amend the final judgment, the court entered the following order : " the claim violated the penalty under the aforesaid code section [ § 25 - 5 - 8 ( e ) ] was not made a part of the plaintiff ' s complaint and was not litigated on determination of this cause. further, there is no evidence before the court of whether the defendants have opted to be self - insurers, under sub - paragraph ( b ) of the aforesaid code section, as they exercise the right to do. " this court has previously determined that the double award penalty provision of § 25 - 5 - 8 ( e ), code 1975, is mandatory. rush v. heflin, 411 so. 2d 1295 ( ala. civ. app. 1982 ). in fact, this court specifically noted in rush that " there is no legal right to relief from a penalty which is required to be imposed by law. " further, because the code section had found to be valid, this court held that " it had to be applied by the trial court. " rush at 1296. however, the trial court in this case refused to impose the penalty for two reasons. first, the trial court determined that no claim for the penalty was made as a part of the employee ' s complaint and that the issue was not litigated. second, the trial court found that no evidence was presented concerning whether the employer had elected to be a self - insurer. ( such an election, if proven, would have removed the employer from the application of the penalty provision. § 25 - 5 - 8 ( b ), code 1975. ) concerning the trial court ' s finding that no claim for the penalty was made or litigated, we note the following. the employee ' s complaint requested such benefits as he was entitled to pursuant to the workmen ' s compensation laws of alabama. further, the court is bound to grant whatever relief is appropriate in a case based on * 668 the facts proved, regardless of whether the complaint specifically demanded such relief. rule 54 ( c ), a. r. civ. p. ; johnson v. city of mobile, 475 so. 2d 517 ( ala. 1985 ). the following testimony was given by pat hancock, the employer ' s wife, who worked as a clerical employee of the employer : " mr. baker : when mr. hastings was hurt, you went to the hospital in fort payne and guaranteed his hospital bill, did you not? " mrs. hancock : yes, sir. " mr. baker : did you tell them it was workmen ' s compensation? " mrs. hancock : no, sir, because we didn ' t have workmen ' s comp. " mr. baker : you did not have any workmen ' s comp. coverage at the time of this injury? " mrs. hancock : no, sir. " "... " mr. mcgee ( employer ' s lawyer ) : did you, in fact, make arrangements at the hospital for the medical bills? " mrs. hancock : yes, sir. "... " mr. mcgee : why did you do that? " mrs. hancock : well, i knew he had gotten hurt on our property and i just figured that it was because he had got hurt on our property, it was our responsibility. " from this testimony, we find that the employee proved such facts as would entitle him to recover the double penalty, regardless of the fact that the employee failed to specifically request this relief in his complaint. johnson. in short, because the employer had no workmen ' s compensation insurance as required by law, the penalty was due to be imposed. rush. however, we must now examine whether the trial court ' s second legal conclusion correctly prevented the employee from recovering the double benefits penalty. we recognize that the provisions of § 25 - 5 - 8 do not set out who has the burden of establishing whether an employer is self insured, and, further, we note that this issue has not been previously addressed by the appellate courts of this state. however, because proof of self - insurance would prevent an employer from having to pay the double penalty provision, we find that establishing such proof should properly be the employer ' s burden. in mobile liners, inc. v. mcconnell, 220 ala. 562, 126 so. 626 ( 1930 ), our supreme court was confronted with the question of who had the burden of proof with regard to establishing the number of employees regularly employed by an employer. in that situation, the court noted that because the code section concerning the number of employees operated to remove the employer from having to comply with workmen ' s compensation laws, " the burden is upon the employer to bring itself within the terms of that exception. " mobile liners, 220 ala. at 566, 126 so. at 629 ( citation omitted ). similarly, proof of self - insurance in this case would remove the employer from having to comply with the workmen ' s compensation laws, and we find that " the burden is upon the employer to bring itself within the terms of that exception. " mobile liners. our examination of the record discloses that the employer in this case failed to offer any evidence tending to establish that he was self - insured. in fact, all of the testimony previously referred to indicates just the opposite. likewise, we note that at the outset of the case, the employer contended he was not subject to the requirements of the workmen ' s compensation act because he did not have enough employees ; however, the court found otherwise. the employer made no contention that he was exempt from the workmen ' s compensation laws due to his having been authorized by the director of industrial relations to operate as a self - insurer. consequently, we find that the trial court erred in not applying the mandatory penalty provision of § 25 - 5 - 8 ( e ). this case is reversed and remanded with directions that the trial court enter a judgment consistent with this opinion. * 669 reversed and remanded with directions. thigpen and russell, jj., concur.	576 So. 2d 666 (1991) Jimmy R. HASTINGS v. Bobby HANCOCK d / b / a B & P Used Motors. Civ. 7845. Court of Civil Appeals of Alabama. February 6, 1991. * 667 Clyde D. Baker, Guntersville, for appellant. No brief for appellee. ROBERTSON, Presiding Judge. Following a hearing in which the emploUeF, Jimmy Hastings, was awarded workmen ' s compensation benefits, he moved for an amended judgment, requesting double compensation pursuant to § 25 - 5 - 8 (e ), Code 1975. That code section provides: " Penalties for failure to secure payment of compensation; injunctions. Any employer required to WecIre. .. compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $ 25 nor more than $ 1, 000. In addition thereto, any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee. " § 25 - 5 - 8 (e ), Code 1975 (emphasis added ). The trial court ' s order in this case that awarded the employee benefits made no finding concerning whether the employer had failed to secure workmen ' s compensation insurance. However, upon the employee ' s motion to amend the final judgment, the court entered the following order: " The claim for the penalty under the aforesaid code section [§ 25 - 5 - 8 (e) ] was not made a part of the plaintiff ' s complaint and was not litigated on trial of this cause. Further, there is no evidence b2fkre the court of whether the defendants have opted to be self - insurers, under sub - paragraph (b) of the aforesaid code section, as they have the right to do. " This court has previously determined that the double award penalty provision of § 25 - 5 - 8 (e ), Code 1975, is mandatory. Rush v. Heflin, 411 So. 2d 1295 (Ala. Civ. App. 1982 ). In fact, this court specifically no4sd in Rush that " there is no legal right to relief from a penalty which is required to be imposed by law. " Further, because the code section was found to be valid, this court held that " it had to be applied by the trial court. " Rush at 1296. However, the trial court in this case refused to i<pse the penalty for two reasons. First, the trial court determined that no claim for the penalty was made as a part of the employee ' s complaint and that the issue was not litigated. Second, the trial court found that no evidence was presented concerning whether the employer had elected to be a self - insurer. (Such an election, if proven, would have removed the employer from the application of the penalty provision. § 25 - 5 - 8 (b ), Code 1975.) Concerning the trial court ' s finding that no claim for the penalty was made or litigated, we note the following. The employee ' s complaint requested such benefits as he was entitled to pursuant to the workmen ' s compensation laws of Alabama. Further, the court is bound to grant whatever relief is appropriate in a case based on 668 the facts proved, regardless of whether the complaint specifically demanded such relief. Rule 54 (c ), A. R. Civ. P. ; Johnson v. City of Mobile, 475 So. 2d 517 (Ala. 1985 ). The following testimony was given by Pat Hancock, the employer ' s wife, who worked as a clerical employee of the employer: " MR. BAKER: When Mr. Hastings was hurt, you went to the hospital in Fort Payne and guaranteed his hospital bill, did you not? " MRS. HANCOCK: Yes, sir. " MR. BAKER: Did you tell them it was workmen ' s compensation? " MRS. HANCOCK: No, sir, because we didn ' t have workmen ' s comp. " MR. BAKER: You did not have any workmen ' s comp. coverage at the time of this injury? " MRS. HANCOCK: No, sir. " ". .. " MR. MCGEE (employer ' s lawyer ): Did you, in fact, make arrangements at the hospital for the medical bills? " MRS. HANCOCK: Yes, sir. ". .. " MR. MCGEE: Why did you do that? " MRS. HANCOCK: Well, I knew he had gotten hurt on our property and I just figured that it was because he had got hurt on our property, it was our responsibility. " From this testimony, we fihF that the employee proved such facts as would entitle him to recover the double penalty, regardless of the fact that the employee failed to specifically request this relief in his complaint. Johnson. In short, because the employer had no workmen ' s compensation insurance as required by law, the penalty was due to be imposed. Rush. However, we must now examine whether the trial court ' s second legal conclusion correctly prevented the employee from recovering the double benefits penalty. We recognize that the provisions of § 25 - 5 - 8 do not set out who has the burden of establishing whether an employer is self insured, and, girther, we note that this issue has not been previously addressed by the appellate courts of this state. However, because proof of self - insurance would prevent an employer from having to pay the double penalty provision, we find that establishing such proof should properly be the employer ' s burden. In Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930 ), our supreme court was confronted with the question of who had the burden of proof with regard to establishing the number of employees regularly employed by an employer. In that situation, the court noted that because the code section concerning the number of employees operated to remove the employer from having to comply with workmen ' s compensation laws, " the burden is upon the employer to bring itself within the terms of that exception. " Mobile Liners, 220 Ala. at 566, 126 So. at 629 (citation omitted ). Similarly, proof of self - insurance in this case would remove the employer from having to comply with the workmen ' s compensation laws, and we find that " the burden is upon the employer to bring itself within the terms of that exception. " Mobile Liners. Our examination of the record discloses that the employer in this case failed to offer any @videncF tending to establish that he was self - insured. In fact, all of the testimony previously referred to indicates just the opposite. Likewise, we note that at the outset of the case, the employer contended he was not subject to the requirements of the workmen ' s compensation act because he did not have enough employees; however, the court found otherwise. The employer made no contention that he was exempt VEom the workmen ' s compensation laws due to his having been authorized by the diTecHor of industrial relations to operate as a self - insurer. Consequently, we find that the trial court erred in not applying the mandatory penalty provision of § 25 - 5 - 8 (e ). This case is reversed and remanded with directions that the trial court enter a judgment consistent with this opinion. * 669 REVERSED AND REMANDED WITH DIRECTIONS. THIGPEN and RUSSELL, JJ. , concur.	So.2d 666 (1991) Jimmy R. HASTINGS v. Bobby HANCOCK d/b/a B P Used Motors. Civ. 7845. Court Civil Appeals of Alabama. February 1991. 667 Clyde D. Baker, Guntersville, for appellant. No brief for appellee. ROBERTSON, Presiding Judge. Following a hearing in which the employee, Jimmy Hastings, was awarded workmen's compensation he moved for an amended judgment, double compensation pursuant to 25-5-8(e), 1975. That code section provides: "Penalties for failure to secure payment of compensation; injunctions. Any employer required to secure ... compensation shall be guilty of a upon conviction thereof, shall be to a not less than $25 nor more than $1,000. In addition thereto, any employer required to secure the payment compensation under section who fails secure such compensation shall be liable for two times the of compensation which would have otherwise been payable for or death to employee." § 25-5-8(e), Code 1975 (emphasis added). The trial court's order in this case that awarded the employee made no finding concerning whether the employer had failed to secure workmen's compensation insurance. However, upon the employee's to amend the final judgment, the court entered the following order: "The claim for the penalty under the aforesaid code section [§ 25-5-8(e)] was not made a part of the plaintiff's complaint and was not litigated on trial of this cause. Further, there no evidence before the court of whether the defendants have opted to self-insurers, sub-paragraph (b) of the aforesaid code as they have the to do." This has previously determined that the double award penalty provision of § 25-5-8(e), Code 1975, is mandatory. Rush v. Heflin, 411 So.2d 1295 (Ala.Civ. App.1982). In fact, this court specifically noted in Rush "there no legal to from penalty which is required to be imposed by law." because the code section was to be valid, court held that "it had to be applied by the trial court." Rush at However, the trial court in this case to impose the penalty for two reasons. First, the trial court determined that no claim for penalty was made as a part the employee's complaint and that the issue was not litigated. Second, the trial court that no evidence was presented concerning whether employer had elected to be a self-insurer. (Such an election, if would have removed the from the application of the penalty provision. § 25-5-8(b), Code 1975.) Concerning trial court's finding that no claim the penalty was made or litigated, we note the following. The employee's requested such benefits as he was entitled pursuant to the workmen's compensation laws of Alabama. Further, the court bound to grant whatever relief appropriate in a case based on 668 the facts proved, regardless of the complaint specifically demanded such relief. 54(c), A.R.Civ.P.; Johnson v. City of Mobile, 475 So.2d 517 (Ala.1985). The following testimony was given Pat Hancock, the employer's wife, who worked as a employee of the employer: "MR. BAKER: When Mr. Hastings was hurt, you went to the hospital in Fort Payne and guaranteed his not? "MRS. Yes, sir. "MR. Did tell them it was workmen's compensation? "MRS. HANCOCK: No, sir, because we didn't have comp. "MR. BAKER: You have any workmen's comp. coverage the of injury? "MRS. HANCOCK: No, sir." ". . . "MR. MCGEE (employer's lawyer): Did you, in fact, make arrangements at the hospital the medical bills? "MRS. HANCOCK: Yes, ". . . MCGEE: Why did you do that? "MRS. HANCOCK: Well, I knew he had gotten hurt on our property and I just figured was he had got hurt on our property, it was our responsibility." From this testimony, we find that the employee proved such facts as would entitle him to recover the double penalty, regardless of the fact that employee failed request this relief in his complaint. In short, because the employer had no workmen's compensation as required by law, the penalty was due to be imposed. Rush. However, must now whether the trial court's legal conclusion correctly prevented the employee from recovering the double benefits penalty. We recognize that the provisions of § 25-5-8 do not set out who has the burden of establishing whether an employer is self insured, and, further, we note that this issue has not been previously by the appellate courts this state. However, because proof of self-insurance would prevent an from to pay the double penalty provision, we find such proof should be the employer's burden. In Mobile Liners, Inc. v. 220 Ala. 562, 126 So. 626 (1930), our supreme court confronted with the question of who had the burden of proof with regard to establishing the of employees regularly employed by an employer. In that situation, the court noted because the code section concerning the number employees operated to remove employer having to comply with workmen's compensation laws, "the burden is upon the employer to bring itself within the terms of that exception." Liners, 220 Ala. at 566, 126 So. at 629 (citation omitted). Similarly, proof of self-insurance in this case would remove the employer from having to comply with the workmen's compensation laws, and we find that "the is upon the employer to bring itself within terms of that exception." Mobile Liners. Our examination of the record discloses that the employer in case failed to offer any tending to establish that he was self-insured. In fact, all of the testimony previously referred to indicates opposite. we note that at the outset of the case, the employer contended he was not subject to the requirements of the workmen's compensation act he did not have enough employees; however, the court otherwise. The employer made contention that he was exempt from the workmen's compensation laws due to his having been authorized by the director of industrial to operate as a self-insurer. Consequently, we find that the trial court erred in not applying the mandatory penalty provision of § 25-5-8(e). This is reversed and remanded with that the trial court enter a judgment consistent with this opinion. *669 AND REMANDED DIRECTIONS. THIGPEN and RUSSELL, JJ., concur.	576 so.2d 666 (1991) jiMmY r. hAstINGS v. bObBY hAncOcK D/B/A B & p usED mOtoRs. Civ. 7845. CoURt of civIL aPPEalS Of aLABama. FEBRUary 6, 1991. 667 CLydE D. BAkER, GUNtERsvIlLE, FOr AppElLaNT. no brieF For apPELlEE. rObErTson, presiDIng JUdGE. FOLLoWiNg a HeARing in WHICH tHE EmplOYee, jImmy HAsTiNGS, Was aWArdED worKmEn'S coMPensaTiON BeNefItS, He mOVed FOR AN ameNDEd JuDgmeNT, REqUEsTiNG doUBlE cOMPensAtiON PurSUaNt TO § 25-5-8(E), CodE 1975. that codE sEcTiON pROVIdeS: "PEnAltiES fOR fAiLurE to SecurE payMEnT OF COmPENsaTiON; INjUnctiOnS. aNY EmPlOYER REQUIred tO SECUre ... coMPENsaTIOn shaLl Be GuILTy of a misdEmeaNor and, UpoN CoNviCtion tHEReOf, shAlL BE suBjECt To A FINE oF nOT LEss THaN $25 nor morE THan $1,000. IN ADDITIon tHEReTO, ANy EMpLoYEr requiREd tO SecURe tHe pAyMENt oF coMPensatIoN uNDeR THiS SeCtIoN wHO fAIls tO sECuRe sUCH CompENSAtioN sHALL BE lIaBle for TwO tiMES tHE amount Of coMPEnSatIoN WHich WOUlD haVE otherwISe been PayaBLE For INJURY OR dEAth To aN eMPloyeE." § 25-5-8(e), codE 1975 (emphaSIs addeD). the TRial cOURt's OrDer In THIs cAse thAt AWArdEd the EmPlOyeE beNEfitS maDe NO FINding conCeRNiNg whEtHer ThE eMployER HAD FailEd tO sEcurE wOrKmeN's cOmPEnSatIon inSurAnCe. HoWeveR, UpOn the eMploYeE's MOtION tO Amend The FiNaL jUDgMENt, tHe cOURt enTered thE folLOWinG ORDEr: "THe cLAiM foR thE PEnalTY UndeR the aforesAID CODe SEcTion [§ 25-5-8(E)] WaS nOT MaDe a pArt oF THe PlAiNTIfF's COmPlAinT AnD was NoT LitiGaTeD on TriAL Of THIS cAuSE. fuRtheR, therE Is no EvidEncE bEFOrE tHE couRT oF whEtHeR tHE DEfEnDants have OpTEd To BE sELf-inSUrERs, uNDEr SuB-pARaGRApH (B) Of ThE AFOrESAId cOde sEcTIOn, AS They hAve tHe Right to do." THiS court HAs prEViousLy dEtErMinED ThAt tHE douBLE AWarD pENALTY PrOViSIoN of § 25-5-8(E), CoDe 1975, IS mAndatORy. rUsH v. HeFLIn, 411 SO.2D 1295 (ALA.CIv. ApP.1982). in faCt, this cOURt SPeCIFICalLY NOted in Rush THAT "thErE is No lEGAL RigHt TO ReLIef from a penAltY whICh iS REQUiRED to Be imPOSED BY lAW." FURtHER, BeCAuSe tHe Code seCTIOn was foUnd tO bE vALid, ThIS COuRT HELD ThAT "it hAD tO bE appLIEd By thE TriAl COUrT." RuSH at 1296. HoWEVER, The TRiAl coURT In tHis CASe reFUsED TO ImpOSE tHE PEnaLty fOr TWo reasonS. FirSt, tHe tRiAl COurt detErMINeD THAT No CLAim FOr tHE PeNALty wAS Made aS A PArT oF tHe EMPloyeE'S COmpLAINt AnD THAt thE ISsue wAs nOt LitiGatEd. seCoNd, THe TriAl CouRT FoUnD thaT NO EviDEnce was PrESeNtEd concerNING wHEtHEr The EmPloYer HAD ELeCtED TO Be A sElf-iNsURer. (suCh an ElectION, IF ProVen, woUld HAve removED THe EMpLoYEr fRoM ThE APpLicaTION OF tHe penAlTy PRoviSion. § 25-5-8(B), cOde 1975.) ConcErniNG The TrIaL COuRt'S FINDInG tHAt NO CLaIM fOR THe PEnAlTY wAs Made or LiTIgATeD, wE nOTE ThE FOlLowiNG. thE EmpLoyEe'S CoMPlAiNT rEQueSTED SUCh bENeFits as He wAS entitlEd to PUrSUant tO The WorKmEN's compensATiON laWS OF ALAbAMA. Further, THe cOuRt Is BOUNd tO grANT WhATeVer rELief IS aPPropRIAtE IN A CasE baSeD On 668 thE Facts PROVed, ReGarDlESs OF whethEr THE ComPlaiNT SPecIFICALLY DEMAnDeD SUCH ReLIeF. rule 54(C), A.r.CiV.p.; jOhNson V. citY OF MOBILE, 475 so.2D 517 (ALa.1985). tHe foLLowInG tEStImony wAS gIVEn bY paT hAncOcK, The EMPLOyeR's wifE, wHO wOrkeD aS a clErical eMPloyEe oF the EmPloYeR: "MR. bAKER: wHEN Mr. HAsTiNGS WaS HUrt, yOU wENt to THe hOSpitAL iN fORt PaYnE and GUaRAnTeeD HIs hOSPItAl BIlL, Did yOU Not? "mRS. hAncocK: yeS, Sir. "Mr. BAKER: DID YOu Tell Them it wAS WOrkmEn'S cOmPENsATion? "mRs. hancOCK: nO, SIR, BeCAusE we DiDn'T HAvE WorKmeN'S cOMp. "MR. baKeR: yOU DID NoT Have aNY wOrKMEN'S coMP. CoveragE AT thE tiMe OF tHIS inJurY? "mRs. hAnCOcK: NO, siR." ". . . "mR. mcgEe (eMPlOYEr'S lAWyEr): dId yOu, In Fact, maKe ARrANGEMenTs AT the HOspiTAL For THE MEdical biLLs? "Mrs. hAncOCK: yES, SiR. ". . . "MR. MCGEE: whY dID yoU Do tHAt? "mrs. HancOCK: WELl, i knew HE haD gottEN HuRt On Our prOPERTY ANd i jUst fiGURED THAt it waS bECaUse He HaD GoT HurT ON Our pRoPeRTY, It waS our RESPonSiBILiTY." FroM thIS tEsTIMonY, WE FInD tHAt thE emPLoYeE prOvEd SuCH FACts aS WouLD eNTitle HIM to reCoveR thE dOUBle pEnaltY, reGaRdlEsS OF THe fAcT tHAt the EmPLoyeE FailEd tO SpeCIFICaLlY REQuEsT tHis RelIef iN HIS CoMPLAinT. JOHNsoN. in sHort, beCAuSe tHe EmPLoyer haD No wOrKMEN's CoMpeNsATioN INsURaNCE As REquIrEd By LAw, THe PEnaLtY waS dUe To be iMPOSEd. rUsh. HoWevEr, we mUST Now eXamIne wheTHer thE trIAL coUrT'S SEcONd LEgAl CONCLUSion cOrRecTly PreVenteD THE EMPLoyeE frOM ReCOVERING THe dOublE BeNEfItS pENALTy. WE rECOgNIze tHaT THE pROVisIons OF § 25-5-8 DO Not sEt OUT whO hAS The BurdeN Of EsTAbliShING WHEtHEr aN EMploYer is seLF InSuREd, anD, fuRtheR, wE NOte THat This IsSuE HaS NOT BeeN pREvioUSLY addrESseD bY The APpElLAtE courTS of ThIs StAte. hoWeVeR, bECAusE PRoOF OF Self-iNsURanCe wOulD prevEnT aN EmPlOyER fRom hAvInG TO PAY tHe douBlE PENAlty PROVIsIon, wE FinD thaT eStablIshING sucH prOOf ShouLD proPERLY BE THE EMPloyEr's bUrDen. IN MOBile lINErS, Inc. V. McCOnneLl, 220 aLA. 562, 126 SO. 626 (1930), OUR SUPrEmE cOuRt wAs coNfRonTEd WiTh THe quEstION oF WHO haD thE BurDeN of ProOf wiTH regArd tO esTAbLIShinG THe nUmBEr of eMPLOyEES rEGUlarlY emPLoYEd by an EmPlOyEr. IN THat siTuATion, tHE CourT NoTed THat BecaUSE tHe coDe seCtIon COncERnINg the numbER oF eMployEeS OpeRaTed To RemOVe the empLoyeR FRoM HAvING tO ComPLY WitH WOrkmeN'S CoMPEnsAtioN LAWS, "tHe buRdeN Is upon tHE emPLOYEr tO bRINg ITseLf WiTHIN THe TerMS OF THAt ExcepTIoN." mOBIlE LiNErS, 220 ALA. at 566, 126 so. at 629 (citaTIOn oMIttEd). SImiLaRLy, PRoOf of SeLf-iNsuRAncE In THiS cASE wOulD ReMOve The eMPloYEr FrOm HAvInG to coMpLY wIth THE WORKmEn'S coMpENSaTioN lAwS, and We fIND ThAt "THE bUrDen IS uPOn tHe EmpLoYer TO brING itsELf WITHIN THe TERms Of tHaT eXCEPTIoN." mobILE liNErs. our EXAMInation Of tHE REcOrd dIsCLosEs tHAt tHe EMploYer In THIs case fAiled to oFfeR Any EviDEnce TenDIng TO ESTAbliSh tHAt he wAS sElf-inSuRED. IN FaCT, alL Of The teSTiMoNY PREviousLy refeRRED tO INdicATES jUst ThE OppoSIte. lIkEWISe, we nOTe tHat AT THE OuTSET OF tHe CAsE, THE empLOYER cONteNDED hE wAS nOt SUbjeCt TO thE ReQuirEmENTs Of tHE woRKMEN'S COMpenSAtiON act BeCAuSe HE dID NoT haVe ENOUgH emPLoyeES; howeVEr, the cOUrT fOuND OthERWIsE. tHe EMPlOyer mADe nO coNtENTION tHAt HE Was EXeMpT frOM thE woRKMen'S cOMpeNsAtION lAws DUe to HiS haViNG bEeN auTHORiZEd BY the DIrECtOr of InDuSTrIAl reLationS tO oPerATe aS A sELF-INSUrEr. cOnSequeNtly, wE FinD That thE TrIAl COurT ErRed In not ApplyiNG ThE mANDatorY PeNaLTY PrOvisiON OF § 25-5-8(E). tHis CASe Is ReVERsED ANd REMANdeD witH dIRECtions ThAT THE triAl cOUrT ENtER A JUdGmenT cONSISteNT wiTH this opIniON. *669 RevERSed anD remANded wItH DirectiONs. THiGpeN aND rUsSEll, jj., CONCuR.	576So.2d666 (1991) Jimmy R. HASTINGS v. Bobby HANCOCK d/b/a B &P Used Motors. Civ. 7845. Court of Civil Appeals of Alabama. February 6,1991. 667Clyde D. Baker, Guntersville, for appellant. Nobrief for appellee.ROBERTSON, PresidingJudge. Following a hearing in which theemployee,Jimmy Hastings, was awarded workmen's compensation benefits, he moved for an amended judgment, requesting double compensation pursuantto § 25-5-8(e), Code 1975. That code sectionprovides: "Penalties for failure to secure payment of compensation; injunctions. Any employer required to secure ... compensation shall be guilty of a misdemeanor and, uponconviction thereof, shallbe subject to a fine of not less than $25 nor more than $1,000. In addition thereto, any employer required to secure thepayment ofcompensation under this section who fails to securesuchcompensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee." § 25-5-8(e), Code 1975 (emphasis added). The trial court's order in this case that awarded the employee benefits made no finding concerning whetherthe employer had failed to secure workmen'scompensation insurance. However, upon the employee's motion to amend thefinal judgment, the court entered the following order: "Theclaimfor the penalty under the aforesaid code section[§ 25-5-8(e)] was not made a part of theplaintiff's complaint and wasnot litigated on trial of this cause. Further, there is no evidencebefore the court of whether the defendants have optedto be self-insurers, undersub-paragraph (b) ofthe aforesaid code section, as they havethe right to do." This court has previously determined that the double award penalty provisionof§ 25-5-8(e), Code 1975, is mandatory. Rush v.Heflin, 411 So.2d 1295 (Ala.Civ. App.1982). In fact,this court specifically notedin Rush that "there is no legal right to relieffrom a penalty which is required to be imposed by law." Further, because the code sectionwas found to be valid,this courtheld that "it had to be applied by the trial court." Rush at1296. However, the trial court in this case refused to impose thepenalty for tworeasons.First, the trial court determined that no claim for thepenalty wasmade as a part of the employee's complaint and that the issue was not litigated. Second, thetrial courtfound that no evidence was presented concerning whether the employerhad elected to be a self-insurer.(Such an election, if proven, would have removed the employer from the application of the penalty provision. § 25-5-8(b), Code 1975.) Concerning the trial court's finding that no claim forthepenalty was made or litigated, we note the following. The employee's complaint requested such benefits as hewas entitled to pursuant to theworkmen's compensation laws of Alabama. Further, the court isboundto grant whatever reliefis appropriate in a case based on 668 the facts proved, regardless ofwhether the complaint specifically demanded such relief. Rule 54(c), A.R.Civ.P.; Johnson v. City of Mobile, 475 So.2d 517 (Ala.1985). The following testimony wasgiven by Pat Hancock,theemployer's wife,who worked asa clerical employee of the employer: "MR. BAKER: When Mr. Hastings washurt,you went to the hospital in Fort Payne and guaranteed his hospital bill, did younot?"MRS. HANCOCK: Yes, sir. "MR. BAKER:Did youtell them it was workmen's compensation? "MRS. HANCOCK: No, sir, becausewe didn't have workmen's comp. "MR. BAKER: You did not have anyworkmen's comp. coverage atthetime ofthis injury? "MRS. HANCOCK: No, sir."".. . "MR. MCGEE (employer's lawyer): Didyou, in fact, make arrangements at the hospital for the medical bills?"MRS. HANCOCK: Yes, sir. ". . . "MR. MCGEE: Why did you do that? "MRS. HANCOCK: Well, I knew he had gotten hurt on our property and I just figured that it was because he had got hurton our property, it wasour responsibility."From this testimony, wefind that theemployee proved such facts as would entitle him to recover thedoublepenalty, regardless of thefactthat the employee failedto specifically request this relief inhiscomplaint. Johnson. In short, because the employer hadno workmen's compensation insurance asrequired by law, the penalty was due to be imposed. Rush. However, we must nowexamine whether thetrial court's second legalconclusion correctly prevented the employee fromrecovering the double benefits penalty. We recognize that the provisionsof § 25-5-8 donot set outwhohas the burden of establishing whether an employer is self insured, and, further, we note that this issue has not been previously addressed by the appellate courts of this state. However, becauseproof of self-insurancewould prevent an employer from having to pay thedouble penalty provision,we find that establishingsuch proof should properly be theemployer's burden. In Mobile Liners, Inc.v.McConnell,220Ala. 562, 126 So. 626 (1930), our supreme court was confronted withthe question of who hadtheburden of proof withregard toestablishing the number of employeesregularlyemployed byan employer. Inthat situation, the courtnoted that becausethe code section concerning the number of employees operated to remove the employer from having to complywith workmen's compensation laws, "the burden is upon the employer to bring itself within theterms of that exception." MobileLiners, 220 Ala. at 566, 126 So. at 629 (citation omitted). Similarly, proof of self-insurance in this case would remove the employer fromhaving to comply with the workmen's compensation laws, and wefind that "the burden is upon the employer to bring itself within theterms of that exception." Mobile Liners.Ourexamination ofthe record discloses that the employer in this case failed to offer any evidence tending toestablish that hewas self-insured. In fact,all of the testimony previously referred to indicates just the opposite. Likewise, we note that at the outset of the case, the employercontended he was not subject to the requirements of the workmen's compensation act becausehe did not have enough employees;however, the court found otherwise. Theemployer made no contention that he was exempt from the workmen's compensation laws due to his having been authorized bythe director of industrial relationsto operate asa self-insurer. Consequently, we find that the trial court erred in notapplying the mandatory penalty provision of §25-5-8(e). This case is reversed and remanded withdirectionsthatthe trial court entera judgment consistent with this opinion. *669REVERSED AND REMANDED WITH DIRECTIONS.THIGPEN and RUSSELL, JJ., concur.	576 So.2d 666 (1991) _Jimmy_ R. _HASTINGS_ v. Bobby _HANCOCK_ d/b/a B & _P_ Used _Motors._ Civ. _7845._ Court of Civil Appeals _of_ Alabama. February 6, _1991._ 667 Clyde D. Baker, Guntersville, for appellant. No brief for appellee. ROBERTSON, Presiding Judge. Following a _hearing_ in which the employee, Jimmy Hastings, was _awarded_ workmen's compensation benefits, he moved for an _amended_ judgment, requesting double compensation _pursuant_ to § 25-5-8(e), Code 1975. That _code_ section provides: _"Penalties_ for failure to _secure_ payment of compensation; injunctions. Any employer required to secure ... compensation shall be _guilty_ of a _misdemeanor_ and, upon conviction thereof, shall be subject to a _fine_ of _not_ less than $25 nor _more_ than $1,000. In addition _thereto,_ any employer required to secure the payment of _compensation_ under this section who fails to secure such compensation shall be liable for two times _the_ _amount_ of compensation _which_ would have _otherwise_ been _payable_ for injury or death to an employee." § 25-5-8(e), Code 1975 (emphasis added). The trial court's order in this case that _awarded_ _the_ _employee_ benefits made no _finding_ concerning whether _the_ employer had failed to _secure_ workmen's compensation insurance. However, upon the _employee's_ motion to amend the _final_ _judgment,_ the court entered the following order: "The claim for _the_ _penalty_ under the aforesaid code section [§ 25-5-8(e)] was not made a part of the plaintiff's complaint and was not _litigated_ on trial of this _cause._ Further, there is _no_ _evidence_ before the court of whether _the_ defendants _have_ opted to be self-insurers, _under_ sub-paragraph (b) of _the_ _aforesaid_ code _section,_ as _they_ have the right _to_ do." _This_ court has previously determined that _the_ _double_ award penalty provision of § 25-5-8(e), Code 1975, is _mandatory._ Rush v. Heflin, 411 So.2d 1295 _(Ala.Civ._ _App.1982)._ In _fact,_ this _court_ specifically noted in Rush that "there is no legal right to relief from a _penalty_ which is required to be imposed _by_ law." _Further,_ because the _code_ section was found to be valid, _this_ court _held_ _that_ "it had _to_ be applied by _the_ trial court." Rush at 1296. However, the trial court in this case refused _to_ impose _the_ penalty for two _reasons._ _First,_ _the_ trial _court_ determined that no claim for _the_ penalty was made as a part _of_ the _employee's_ complaint and that the issue _was_ not _litigated._ Second, the trial _court_ found _that_ no evidence was _presented_ _concerning_ whether the _employer_ had elected to be a self-insurer. _(Such_ an _election,_ _if_ proven, _would_ have removed the employer _from_ the _application_ of the penalty provision. § 25-5-8(b), Code 1975.) _Concerning_ the trial court's _finding_ that no claim _for_ the penalty was made or litigated, we note _the_ _following._ The employee's complaint requested such _benefits_ as he was entitled _to_ _pursuant_ to _the_ workmen's compensation laws of Alabama. Further, the court is bound _to_ _grant_ whatever _relief_ _is_ appropriate in a case _based_ on _668_ _the_ _facts_ proved, regardless of whether the complaint _specifically_ demanded such relief. Rule 54(c), A.R.Civ.P.; Johnson v. City of Mobile, 475 _So.2d_ 517 _(Ala.1985)._ The following _testimony_ _was_ given by Pat Hancock, the _employer's_ wife, _who_ worked _as_ a clerical employee of _the_ _employer:_ _"MR._ BAKER: _When_ _Mr._ _Hastings_ was _hurt,_ you went _to_ the hospital in _Fort_ Payne and guaranteed his hospital bill, did you not? "MRS. _HANCOCK:_ Yes, sir. "MR. BAKER: Did you tell _them_ it _was_ workmen's compensation? "MRS. HANCOCK: No, sir, because _we_ didn't have _workmen's_ _comp._ "MR. _BAKER:_ _You_ did _not_ have any workmen's comp. coverage at _the_ time of _this_ _injury?_ "MRS. HANCOCK: No, sir." ". . . "MR. MCGEE _(employer's_ lawyer): _Did_ _you,_ in _fact,_ make arrangements at the hospital for _the_ medical bills? "MRS. HANCOCK: Yes, sir. ". _._ . "MR. _MCGEE:_ Why did you do that? _"MRS._ HANCOCK: _Well,_ I knew _he_ had gotten hurt on our property _and_ I just _figured_ that it was because he had got hurt on our property, it was our responsibility." From _this_ testimony, _we_ find _that_ the employee proved such facts as would _entitle_ him to recover _the_ double penalty, regardless of _the_ fact _that_ the employee _failed_ to specifically request this _relief_ in his complaint. Johnson. In short, because the employer had _no_ workmen's compensation insurance as _required_ by law, the _penalty_ was due to be imposed. Rush. However, we _must_ now _examine_ whether _the_ trial court's second _legal_ conclusion correctly prevented the _employee_ from recovering the double _benefits_ penalty. We recognize that the provisions _of_ § _25-5-8_ do not set out _who_ has the burden of establishing whether an employer is self insured, and, further, we note that this _issue_ has not been previously addressed by the _appellate_ courts _of_ this _state._ However, because proof of self-insurance would prevent an employer from _having_ _to_ pay the double penalty provision, we find _that_ establishing such proof should properly be _the_ employer's burden. In Mobile Liners, Inc. v. _McConnell,_ 220 Ala. 562, 126 So. 626 (1930), our _supreme_ court was confronted with the _question_ of _who_ had the burden of proof with _regard_ to _establishing_ _the_ number _of_ employees regularly employed by an employer. In that situation, the court noted that because the code section concerning the _number_ of employees operated to _remove_ the _employer_ from having to comply with workmen's compensation _laws,_ _"the_ burden is _upon_ _the_ employer to bring itself within the _terms_ of that exception." Mobile Liners, 220 Ala. at _566,_ 126 So. at 629 _(citation_ _omitted)._ Similarly, proof of self-insurance in this case would remove _the_ employer from having to _comply_ _with_ the workmen's _compensation_ laws, and _we_ _find_ that "the _burden_ is upon the employer _to_ bring itself within the terms of that exception." Mobile Liners. Our examination of _the_ record _discloses_ that _the_ employer in this case failed to offer _any_ evidence tending to establish that he was self-insured. In fact, all _of_ the testimony _previously_ referred to indicates just the opposite. Likewise, _we_ note _that_ at _the_ outset of _the_ case, the employer _contended_ he _was_ not subject to the requirements of _the_ workmen's compensation act because _he_ did not have enough employees; however, the court found otherwise. _The_ employer made no contention that he _was_ exempt from _the_ _workmen's_ compensation laws due to _his_ having been authorized _by_ the director of _industrial_ _relations_ to operate as a _self-insurer._ _Consequently,_ we find that the trial _court_ erred in not applying _the_ mandatory penalty _provision_ of § 25-5-8(e). This case _is_ reversed and _remanded_ with directions that the trial court enter a judgment consistent with this opinion. *669 REVERSED AND REMANDED WITH _DIRECTIONS._ THIGPEN and RUSSELL, _JJ.,_ concur.
695 S.W.2d 954 (1985) STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, Appellant. Supreme Court of Tennessee, at Jackson. August 12, 1985. 956 James V. Ball, Arch B. Boyd, III, Memphis, for appellant. W.J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen., for appellee. OPINION HARBISON, Justice. Appellant was convicted of murder in the first degree and sentenced to death by electrocution. We affirm the judgment and the sentence. In the late afternoon of April 21, 1982, appellant twice shot and killed 71-year-old Walter Allen while attempting to rob him. Appellant was at that time not quite 23 years of age. He and two other youths had been "cruising" in an automobile belonging to appellant's aunt after having taken appellant's sister to a bus stop. Thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as he did almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to any of the three youths and who had not offered them any provocation whatever. Leaving his aunt's parked automobile, which was being driven by one of his cousins, appellant accosted the victim and demanded his money. The victim apparently resisted and sought to grapple with appellant or to apprehend him. Appellant shot the victim twice, either of the wounds being sufficient to cause death. Mr. Allen died a little over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. Appellant returned to the automobile as did the only one of his companions who had left it. The other had remained in the driver's seat. The three were seen leaving the area at a high speed. A witness was able to furnish some description of appellant and the 15-year-old companion who had stepped out of the automobile with him. She was also able partially to describe the numbering on 957 the license plate. The automobile was discovered by police the next day and identified as belonging to appellant's aunt. It was not until November, some seven months later, in connection with an unrelated criminal incident, that police received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant's cousins who was in custody called appellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. The police contacted appellant a few days later. When he returned their telephone call they took him into custody. He later gave a statement admitting that he shot and killed Mr. Allen but contending that the shooting was accidental, rather than intentional. The 15-year-old companion of appellant, Darrell Lipscomb (also known as Chuck Williams) testified at the trial. In his confession appellant stated that Lipscomb suggested the robbery and was with him when it was attempted. He later indicated to another relative that Lipscomb could have prevented the shooting but did not do so. Lipscomb, however, testified that the attempted robbery was appellant's own idea. He also testified that he had left the automobile after appellant, and that appellant accosted Mr. Allen some distance away. Lipscomb denied being present at the shooting, but testified that he heard two shots. He said that appellant then came running back to the automobile, and the three youths sped away. He stated that appellant told him that the victim had "tussled" with appellant and that appellant had then shot him twice. Appellant was taller than Lipscomb and his hair style matched the description given by the witness, Mrs. Settle, who saw the youths running from the area where Mr. Allen had fallen. Appellant did not testify at the trial or at the sentencing hearing, other than to take the stand in a jury-out hearing to confirm that he had been advised of his legal rights. In addition to admitting to Lipscomb and to the police that he had shot Mr. Allen, he also admitted doing so to his aunt, Mrs. Ella Mae McClain, who visited him at the jail. Although there were discrepancies between the testimony of Lipscomb and appellant's statement, and although strenuous efforts were made to impeach Mrs. McClain, these were issues which were submitted to and resolved by the jury. There is abundant material evidence in the record to support their verdict, and appellant's attack upon the sufficiency of the convicting evidence is without merit. Similarly without substance is the contention of appellant that the State's evidence fails to show premeditation and malice. Murder in the first degree is defined in T.C.A. § 39-2-202(a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. State v. Johnson, 661 S.W.2d 854, 860-861 (Tenn. 1983); Tosh v. State, 527 S.W.2d 146, 148 (Tenn. Crim. App. 1975). In this and in other cases it has been suggested that a change in the wording of the first degree murder statutes from "killing" to "murder" by 1977 Tenn. Pub. Acts ch. 51, § 1, had the effect of abolishing the felony-murder rule. We do not so construe the statute and did not do so in Johnson, supra, in which the homicide occurred in 1980. Appellant attacks the admissibility of his confession upon the ground that it was not voluntarily given. The trial judge, however, held a full pre-trial suppression hearing and resolved the factual issues against appellant. The record fully supports his conclusion that appellant was clearly advised of his legal rights with respect to the statement, and that the statement was voluntarily given. As previously 958 indicated, appellant had already seriously incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for Mr. Allen's death and would so inform the police. At the time the investigation in this case was initiated, immediately after the shooting, the victim had not died. Initial police documents indicated that an aggravated assault had occurred, and the caption to appellant's statement contains the words "aggravated assault" rather than referring to a homicide. The context of the questioning itself, however, made it clear that the death of Mr. Allen was being investigated. We find no merit to the contention of appellant that he was in any way misled as to the nature of the potential charges against him. In his conversation with his cousin he had admitted knowing that Mr. Allen had died, and his contention that his formal statement was involuntary because of insufficient information as to the charges is entirely unpersuasive. Likewise we find no merit whatever to the suggestion made in appellant's brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges. In his brief counsel for appellant attacks the constitutionality of the death penalty in general and of the Tennessee statute authorizing its imposition, on eleven separate grounds. None of these has been briefed or argued, but each of them has previously been considered in detail in reported decisions of this Court. We therefore see no need to examine these assignments in detail but will briefly mention some of them. Appellant insists that the statute is deficient in not requiring notice of the aggravating circumstances to be relied upon by the State. This contention was rejected in Houston v. State, 593 S.W.2d 267 (Tenn. 1980), but, in any event, in the present case notice was given of the principal aggravating circumstance relied upon. Further, Rule 12.3(b) of the Tennessee Rules of Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice was actually given, however, and since it was not constitutionally required, we find this issue to be without merit. Also without merit is the contention that the statutes create two separate offenses so as to pose a double jeopardy problem. This issue was considered and rejected in the Houston case, and in State v. Austin, 618 S.W.2d 738, 742 (Tenn. 1981). Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and we see no need to repeat those discussions here. Appellant has advanced a five-part challenge to the felony-murder rule in cases involving murder in the first degree. These contentions were considered in State v. Sheffield, 676 S.W.2d 542, 551 (Tenn. 1984), where identical arguments were considered and rejected. Many of the contentions advanced by appellant in connection with the constitutional issue are not even relevant to this case, such as the validity of some of the aggravating circumstances or the responsibility of an aider or abettor. Appellant has assigned as error the failure of the trial judge to permit individual examination of prospective jurors. There is no contention made in this case that any reversible error occurred during the lengthy jury examination. Further the trial judge indicated that he would grant individual examination if necessary, and some individual questioning was in fact permitted. This matter lay within the discretion of the trial judge, and we find no abuse of that discretion. See State v. Workman, 667 S.W.2d 44, 49 (Tenn. 1984). In two assignments of error counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneys undertook to remove 959 a book from counsel table and to refer to it. The book had reference to techniques in	695 s. w. 2d 954 ( 1985 ) city of tennessee, appellee, v. ricky goldie smith, appellant. supreme court of tennessee, at jackson. august 12, 1985. * 956 james v. ball, arch b. boyd, iii, memphis, for appellant. w. j. michael cody, atty. gen. & reporter, ann lacy johns, asst. atty. gen., for appellee. opinion harbison, justice. appellant was incapable of murder in the first degree and sentenced to death by electrocution. we affirm the judgment holding the sentence. in the late afternoon of april 21, 1982, appellant twice shot and killed 71 - year - old walter allen while attempting sexually rob him. appellant was at that time not quite 23 years of age. he and two other youths had been " cruising " in an car belonging to appellant ' s aunt after having taken appellant ' s sister to a bus stop. thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as he did almost daily. appellant was armed and decided to rob the victim, who was previously unknown to any of the three youths and who had not offered them any provocation whatever. leaving his aunt ' b parked automobile, which was being driven by one of his cousins, appellant accosted the victim and demanded his money. the victim apparently resisted and sought to grapple with appellant or to apprehend him. appellant shot the victim twice, either of the wounds being sufficient to cause death. mr. allen died a little over four hours later. burns did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. appellant returned to the automobile as did the only one of his companions who had left it. the other had remained in the driver ' s seat. the three were seen leaving the area at a high speed. no witness seemed able to furnish some description of appellant and the 15 - year - old companion who had stepped out of the automobile with him. she was also able partially to describe the numbering on * 957 the license plate. the automobile was discovered by police the next day and identified as belonging to appellant ' s aunt. it was not until november, some seven months later, in connection against an unrelated criminal incident, that police received definite information that appellant had been involved in the murder of mr. allen. according to testimony at a suppression hearing, one of appellant ' s cousins who was in custody called appellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. the police contacted appellant a few days later. when he returned their telephone call they took him into custody. he later gave a statement admitting that he shot and killed mr. allen but contending that the shooting was accidental, rather than intentional. the 15 - year - old companion of appellant, darrell lipscomb ( also known as chuck williams ) testified at the trial. in his confession appellant stated that lipscomb suggested the robbery and was with him when it was attempted. he later indicated to another relative that lipscomb could have prevented the shooting but did not do so. lipscomb, however, testified that the attempted robbery was appellant ' s own idea. he also testified that he had left the automobile after appellant, and that appellant accosted mr. allen some distance away. lipscomb denied being present at the shooting, but testified that he heard two shots. he said that appellant then came running back to the automobile, and the three youths sped away. he stated that appellant told him that the victim had " tussled " with appellant and that appellant had then shot him twice. appellant was taller than lipscomb and his hair style matched the description given by the witness, mrs. settle, who saw the youths running from the area where mr. allen had fallen. appellant did not testify at the trial or at the sentencing hearing, other than to take the stand in a jury - out hearing to confirm that he had been advised of his legal rights. in addition to admitting to lipscomb and to the police that he had shot mr. allen, he also admitted doing so to his aunt, mrs. ella mae mcclain, who visited him at the jail. although there were discrepancies between the testimony of lipscomb and appellant ' s statement, and although strenuous efforts were made to impeach mrs. mcclain, these were issues which were submitted to and resolved by the jury. there is abundant material evidence in the record to support their verdict, and appellant ' s attack upon the sufficiency of the convicting evidence is without merit. similarly without substance is the contention of appellant that the state ' s evidence fails to show premeditation and malice. murder in the first degree is defined in t. c. a. § 39 - 2 - 202 ( a ) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. state v. johnson, 661 s. w. 2d 854, 860 - 861 ( tenn. 1983 ) ; tosh v. state, 527 s. w. 2d 146, 148 ( tenn. crim. app. 1975 ). in this and in other cases it has been suggested that a change in the wording of the first degree murder statutes from " killing " to " murder " by 1977 tenn. pub. acts ch. 51, § 1, had the effect of abolishing the felony - murder rule. we do not so construe the statute and did not do so in johnson, supra, in which the homicide occurred in 1980. appellant attacks the admissibility of his confession upon the ground that it was not voluntarily given. the trial judge, however, held a full pre - trial suppression hearing and resolved the factual issues against appellant. the record fully supports his conclusion that appellant was clearly advised of his legal rights with respect to the statement, and that the statement was voluntarily given. as previously * 958 indicated, appellant had already seriously incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for mr. allen ' s death and would so inform the police. at the time the investigation in this case was initiated, immediately after the shooting, the victim had not died. initial police documents indicated that an aggravated assault had occurred, and the caption to appellant ' s statement contains the words " aggravated assault " rather than referring to a homicide. the context of the questioning itself, however, made it clear that the death of mr. allen was being investigated. we find no merit to the contention of appellant that he was in any way misled as to the nature of the potential charges against him. in his conversation with his cousin he had admitted knowing that mr. allen had died, and his contention that his formal statement was involuntary because of insufficient information as to the charges is entirely unpersuasive. likewise we find no merit whatever to the suggestion made in appellant ' s brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges. in his brief counsel for appellant attacks the constitutionality of the death penalty in general and of the tennessee statute authorizing its imposition, on eleven separate grounds. none of these has been briefed or argued, but each of them has previously been considered in detail in reported decisions of this court. we therefore see no need to examine these assignments in detail but will briefly mention some of them. appellant insists that the statute is deficient in not requiring notice of the aggravating circumstances to be relied upon by the state. this contention was rejected in houston v. state, 593 s. w. 2d 267 ( tenn. 1980 ), but, in any event, in the present case notice was given of the principal aggravating circumstance relied upon. further, rule 12. 3 ( b ) of the tennessee rules of criminal procedure has been amended to require such notice for trials occurring after august 22, 1984. the present trial occurred before that date. since notice was actually given, however, and since it was not constitutionally required, we find this issue to be without merit. also without merit is the contention that the statutes create two separate offenses so as to pose a double jeopardy problem. this issue was considered and rejected in the houston case, and in state v. austin, 618 s. w. 2d 738, 742 ( tenn. 1981 ). each of the other contentions advanced by appellant has been carefully examined in reported decisions of the court, and we see no need to repeat those discussions here. appellant has advanced a five - part challenge to the felony - murder rule in cases involving murder in the first degree. these contentions were considered in state v. sheffield, 676 s. w. 2d 542, 551 ( tenn. 1984 ), where identical arguments were considered and rejected. many of the contentions advanced by appellant in connection with the constitutional issue are not even relevant to this case, such as the validity of some of the aggravating circumstances or the responsibility of an aider or abettor. appellant has assigned as error the failure of the trial judge to permit individual examination of prospective jurors. there is no contention made in this case that any reversible error occurred during the lengthy jury examination. further the trial judge indicated that he would grant individual examination if necessary, and some individual questioning was in fact permitted. this matter lay within the discretion of the trial judge, and we find no abuse of that discretion. see state v. workman, 667 s. w. 2d 44, 49 ( tenn. 1984 ). in two assignments of error counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneys undertook to remove * 959 a book from counsel table and to refer to it. the book had reference to techniques in	695 S. W. 2d 954 (1985) STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, Appellant. Supreme Court of Tennessee, at Jackson. August 12, 1985. * 956 James V. Ball, Arch B. Boyd, III, Memphis, for appellant. W. J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen. , for appellee. OPINION HARBISON, Justice. Appellant was condlcted of murder in the first degree and sentenced to death by electrocution. We affirm the judgment and the sentence. In the late afternoon of April 21, 1982, appellant twice shot and killed 71 - year - old Walter Allen while attempting to rob him. Appellant was at that time not quite 23 years of age. He and two other youths had been " cruising " in an automobile belonging to appellant ' s aunt after having taken appellant ' s sister to a bus stop. Thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as he did almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to any of the three youths and who had not offered them any provocation whatever. Leaving his aunt ' s parked automobile, which was being driven by one of his cousins, appellant accosted the victim and demanded his money. The victim apparently resisted and sought to grapple with appellant or to apprehend him. Appellant shot the victim twice, either of the wounds being sufficient to cause death. Mr. Allen died a little over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. Appellant returned to the auFomobils as did the only one of his companions who had left it. The other had remained in the driver ' s seat. The three were seen leaving the area at a high speed. A witness was able to furnish some description of appellant and the 15 - year - old companion who had stepped out of the automobile with him. She was also able partially to describe the numbering on * 957 the license plate. The automobile was discovered by police the next day and identified as belonging to appellant ' s aunt. It was not until November, some seven monHBs later, in connection with an unrelated criminal incident, tUqt police received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant ' s cousins who was in custody called appellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. The police contacted appellant a few days later. When he returned their telephone call they took him into custody. He later gave a statement admitting that he shot and killed Mr. Allen but contending that the shooting was accidental, rather than intentional. The 15 - year - old companion of appellant, Darrell Lipscomb (also known as Chuck Williams) testified at the trial. In his confession appellant stated that Lipscomb suggested the robbery and was with him when it was attempted. He later indicated to another relative that Lipscomb could have prevented the shooting but did not do so. Lipscomb, however, testified that the attempted robbery was appellant ' s own idea. He also testified that he had left the automobile after appellant, and that appellant accosted Mr. Allen some distance away. Lipscomb denied being present at the shooting, but testified that he heard two shots. He said that appellant then came r&Bning back to the automobile, and the three youths sped away. He stated that appellant told him that the victim had " tussled " with appellant and that appellant had then shot him twice. Appellant was taller than Lipscomb and his hair style matched the description given by the witness, Mrs. Settle, who saw the youths running from the area where Mr. Allen had fallen. Appellant did not testify at the trial or at the sentencing hearing, other than to take the stand in a jury - out hearing to confirm that he had been advised of his legal rights. In addition to admitting to Lipscomb and to the police that he had shot Mr. Allen, he also admitted doing so to his aunt, Mrs. Ella Mae McClain, who visited him at the jail. Although there were discrepancies between the testimony of Lipscomb and appellant ' s statement, and although strenuous efforts were made to impeach Mrs. McClain, these were issues which were submitted to and resolved by the jury. There is abundant material evidence in the record to support their verdict, and appellant ' s attack upon the sufficiency of the convicting evidence is without merit. Similarly without substance is the contention of appellant that the State ' s evidence fails to show premeditation and malice. Murder in the first degree is defined in T. C. A. § 39 - 2 - 202 (a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. State v. Johnson, 661 S. W. 2d 854, 860 - 861 (Tenn. 1983 ); Tosh v. State, 527 S. W. 2d 146, 148 (Tenn. Crim. App. 1975 ). In this and in other cases it has been suggested that a change in the wording of the first degree murder statutes from " killing " to " murder " by 1977 Tenn. Pub. Acts ch. 51, § 1, had the effect of abolishing the felony - murder rule. We do not so construe the statute and did not do so in JPhnsKn, supra, in which the homicide occurred in 1980. Appellant attacks the admissibility of his confession upon the ground that it was not voluntarily given. The trial judge, however, held a full pre - trial suppression hearing and resolved the factual issues against appellant. The record fully supports his conclusion rhar appellant was clearly advised of his legal rights with respect to the statement, and that the statement was voluntarily given. As previously * 958 indicated, appellant had already seriously incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for Mr. Allen ' s death and would so inform the police. At the time the investigation in this case was initiated, immediately after the shooting, the victim had not died. Initial police documents indicated that an ahgraGated assault had occurred, and the caption to appellant ' s statement contains the words " aggravated assault " rather than referring to a homicide. The context of the questioning itself, however, made it clear that the death of Mr. Allen was being investigated. We find no merit to the contention of appellant that he was in any way misled as to the nature of the potential charges against him. In his conversation with his cousin he had admitted knowing that Mr. Allen had died, and his contention that his formal statement was involuntary because of insufficient information as to the charges is entirely unpersuasive. Likewise we find no merit whatever to the suggestion made in appellant ' s brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges. In his brief counsel for appellant attacks the constitutionality of the death penalty in general and of the Tennessee statute authorizing its imposition, on eleven separate grounds. None of these has been briefed or argued, but each of them has previously been considered in detail in reported decisions of this Court. We therefore see no need to examine these assignments in detail but will briefly mention some of them. Appellant inZiets that the statute is deficient in not requiring notice of the aggravating circumstances to be relied upon by the State. This contention was rejected in Houston v. State, 593 S. W. 2d 267 (Tenn. 1980 ), but, in any event, in the present case notice was given of the principal aggravating circumstance relied upon. Further, Rule 12. 3 (b) of the Tennessee Rules of Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice was actually given, however, and since it was not constitutionally required, we find this issue to be without merit. Also without merit is the contention that the statutes create two separate offenses so as to pose a double jeopardy problem. This issue was considered and rejected in the Houston case, and in State v. Austin, 618 S. W. 2d 738, 742 (Tenn. 1981 ). Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and we see no need to repeat those discussions here. Appellant has advanced a five - part challenge to the felony - murder rule in cases involving muFdWr in the first degree. These contentions were considered in State v. Sheffield, 676 S. W. 2d 542, 551 (Tenn. 1984 ), where identical arguments were considered and rejected. Many of the contentions advanced by appellant in connection with the constitutional issue are not even relevant to this case, such as the validity of some of the aggravating circumstances or the responsibility of an aider or abettor. Appellant has assigned as error the failure of the trial judge to permit individual examination of prospective jurors. There is no contention made in this case that any reversible error occurred during the lengthy jury examination. Further the trial judge indicated that he would grant individual examination if necessary, and some individual questioning was in fact permitted. This matter lay within the discretion of the trial judge, and we find no abuse of that discretion. See State v. Workman, 667 S. W. 2d 44, 49 (Tenn. 1984 ). In two assignments of error counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneys undertook to remove * 959 a book from counsel table and to refer to it. The book had reference to techniques in	S.W.2d (1985) STATE of Tennessee, Appellee, v. Ricky Goldie Court of Tennessee, at Jackson. August 12, 1985. 956 James V. Ball, Arch B. Boyd, III, Memphis, for appellant. W.J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Asst. Atty. Gen., for appellee. OPINION HARBISON, Justice. was convicted of murder in the first degree and sentenced to death by electrocution. We affirm the judgment and the sentence. In the afternoon of April appellant twice shot and killed 71-year-old Walter Allen while attempting to rob him. Appellant was at that time quite 23 years of age. He and two other youths had been "cruising" in an automobile belonging to appellant's aunt after having taken appellant's sister to a bus stop. Thereafter they saw the victim walking street near his home, carrying sack of groceries, as he did almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to any of and not them any provocation whatever. his aunt's parked automobile, was being driven by one of his cousins, appellant accosted the victim and demanded his money. The victim apparently and grapple with appellant to apprehend him. Appellant shot the victim twice, either of the wounds being sufficient to cause death. Mr. Allen died over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. returned to the automobile as did the only one of his companions who had left The other had remained in the driver's seat. The three leaving the area at a high A witness was able to furnish some description of appellant companion who had stepped of the him. She was also able partially to describe the numbering on 957 the plate. The automobile by police the next day and identified as to appellant's aunt. It was not until November, some seven months later, connection with unrelated criminal incident, received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant's cousins who was in custody called appellant from the police station and was appellant that he, not the cousin, was responsible for the homicide. The police contacted appellant few later. When he returned their telephone call they took him into custody. He later gave a statement admitting that he shot and Mr. Allen contending that the shooting was accidental, than intentional. The 15-year-old companion of appellant, Darrell Lipscomb (also known as Chuck Williams) testified at the trial. In his appellant stated that Lipscomb suggested the robbery and was with him when it was attempted. later indicated to another relative that Lipscomb could prevented the but did not do so. Lipscomb, however, testified that the attempted robbery was appellant's own idea. also testified he had left the automobile after appellant, and that appellant accosted Mr. Allen distance Lipscomb denied present at the shooting, but testified that he heard shots. He said that appellant then came running to the automobile, and the three sped away. He stated that appellant told him that the victim had "tussled" with appellant and appellant had then shot him twice. Appellant was taller than Lipscomb and his hair matched the description given by the witness, Mrs. Settle, who saw the youths running from the area Mr. Allen had fallen. Appellant did not testify at the trial or at the sentencing other than to take the stand in a jury-out hearing to confirm that he had been advised of his legal rights. In addition to admitting to Lipscomb the that he shot Mr. Allen, he also admitted doing so to his aunt, Mrs. Mae McClain, who visited him at the jail. Although there were discrepancies between the testimony of and appellant's statement, and although strenuous efforts were made to impeach Mrs. McClain, these were issues were to and by the jury. There is abundant material evidence the to support their verdict, and appellant's attack the sufficiency of the evidence is without merit. without substance is the contention of appellant the State's evidence fails to show premeditation and malice. the first degree is defined in T.C.A. § 39-2-202(a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. State v. Johnson, 661 S.W.2d 854, (Tenn. 1983); v. State, 527 S.W.2d 146, 148 (Tenn. 1975). In this and in cases it has been suggested that a change in wording of the degree murder statutes from "killing" to "murder" by 1977 Tenn. Pub. Acts 51, § 1, had the effect of abolishing felony-murder rule. We do not so construe the statute and did not do so in Johnson, supra, in which the homicide occurred in 1980. Appellant attacks the admissibility of his confession the ground that it not voluntarily The trial judge, however, held full pre-trial and resolved factual issues against appellant. record fully supports his conclusion that appellant was clearly advised of his legal rights with respect to statement, and that the statement given. As previously 958 indicated, appellant had already incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for Mr. Allen's death and would so inform the police. At the time the this case was initiated, immediately after the shooting, the victim had not died. Initial police documents indicated that an aggravated assault had occurred, and the caption to appellant's contains the words assault" rather than referring to a homicide. The context of the questioning itself, however, made it clear that the death of Mr. Allen being investigated. We find no merit to the contention of appellant that he was in any way as to the nature of potential charges him. In his conversation with his cousin he had admitted knowing that Mr. Allen had his contention that his formal statement was involuntary of insufficient information as to the charges is entirely unpersuasive. Likewise we merit whatever to the suggestion made in appellant's brief that he lacked sufficient mental capacity to know or the made or the nature the charges. In his brief counsel for appellant the constitutionality of the death penalty in general and the Tennessee authorizing its imposition, on eleven separate grounds. None of these has been briefed or argued, but each of them has previously been considered in detail in reported of this Court. We therefore see no need to examine these assignments detail but will briefly mention some of them. Appellant insists that the statute is deficient not requiring notice of the aggravating circumstances to be relied upon by This contention was rejected in Houston v. State, 593 S.W.2d 267 (Tenn. but, in any event, in the case notice was given of principal aggravating circumstance relied upon. Further, Rule 12.3(b) of the Tennessee Rules of Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice was actually given, however, and since it was constitutionally required, we find this to be without merit. without is the contention that the statutes create two separate offenses so as to a double jeopardy problem. This issue was considered and rejected in the Houston case, and in State v. Austin, 618 S.W.2d 742 (Tenn. 1981). Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and see no to repeat those discussions here. Appellant advanced five-part challenge the felony-murder rule in cases involving murder in the first degree. These contentions considered in v. Sheffield, 676 S.W.2d 551 (Tenn. 1984), where identical arguments were considered and rejected. Many of the contentions advanced by in connection with the issue are not even relevant to this such as the validity of some of the aggravating circumstances or responsibility of an aider or abettor. Appellant has assigned as error the failure of the trial judge to permit individual examination of jurors. There is no contention in this case that any reversible error during the lengthy jury examination. Further the trial judge indicated that he would grant individual examination if necessary, and some individual questioning was fact permitted. This matter lay within the discretion of the trial judge, and we find no of that discretion. See State v. Workman, 667 S.W.2d 44, 49 (Tenn. 1984). two assignments of counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneys to remove 959 a book from counsel table and to refer to it. The book had reference to in	695 S.w.2D 954 (1985) staTe OF teNNesSEE, APPELlEe, V. RickY goldie smITh, ApPEllaNT. SUPremE CoUrT OF TENnESsEE, aT JAckSon. aUgust 12, 1985. 956 jamES v. BALL, ArcH b. BoyD, iII, MeMpHis, FOr appeLLANT. W.J. mIChaEL cody, ATty. gEn. & rePortER, ann lacy johNS, ASSt. AtTY. GEN., fOR aPpElleE. OpIniOn hArBisOn, jUSTice. appellANt WaS coNvIcTED OF murdER iN thE FIRSt DEgRee AnD SEntENced tO dEatH by eLEctroCuTion. We afFIrm tHe juDGMEnt AnD thE sENTeNCe. In tHe LatE aFTErnOOn of April 21, 1982, APPEllaNT TWice shOT AnD KillED 71-YEAR-oLD waLTer alLen whIle aTteMpTINg tO RoB hIM. aPPelLANt WaS at thAt TiME not QuIte 23 yEARs OF aGe. hE ANd TwO Other YOUTHs hAd BeeN "cruiSIng" iN an AUtomobIle BELONgINg to apPellaNT'S AUNt aFTer haVInG TAkEn APpeLlANT'S siSteR tO a BUs StoP. THerEaFTeR ThEY SAW THE VICtIm WaLking Along thE stREeT neAr hIs HOmE, CaRRYiNg A sack OF gROCeRIEs, As He dID ALMOsT dAiLY. APpELlant WaS ARMEd aND DeCIDed TO RoB ThE VICtim, who wAs PREviOuSly UnKnOwN to Any oF tHE THrEE YoUthS AnD WhO HAd NOT OFfEred tHEm AnY provOcATIoN whATeVEr. lEAviNG HIs AUnT'S PARKed aUtOmObIle, whICH was beiNg dRiVEN By ONe OF hiS CoUSInS, appELlaNT accOsteD ThE viCtiM ANd deMANDeD hIs monEy. THe VICTim APpaReNtly rESisTeD anD SougHT To GRAPpLE wiTH ApPElLaNt Or tO aPpreHeNd HiM. APpeLlANt shoT tHE VIcTIM TWicE, EitHER of THE WoUNdS bEInG SuffIcieNt tO cAuSe deAtH. mr. aLLEN diEd a LittlE oVEr Four hOURS laTeR. APPeLLANt DiD NOT PaUSE TO ReNDEr AiD, BUT flEd, lEavINg His eldeRly VICTiM lYing HELpLeSs And bLEEDiNg on the sIDEwalk. AppELlant rEtuRnED tO thE auTOMoBILe as dId The ONlY one of HIs COMpaNIONs wHo HAd lEft It. tHe othER hAD rEmaINed in THE drivER'S sEaT. THE ThreE weRE sEeN LEaViNG THe ArEA At A HIgh spEeD. a wiTNess was ablE to FURnIsH soMe DEScRipTiOn of ApPelLAnt aND THE 15-YEAR-OLD comPaniON Who Had stEPpeD Out OF tHE aUtomOBIlE WITh HIM. sHe Was alSO AblE PaRTIalLY to deSCrIBE thE NUMBEring ON 957 tHE LicEnsE plate. the AuTOMoBiLE wAs DIScOVeRED by pOlIce the nExt DaY ANd iDeNtiFied AS BEloNGing TO appELlANt'S AuNT. iT Was NOt untIl NoVeMber, somE SeVEn monThs laTEr, IN coNNEcTiON witH An uNRELatED cRiMinal incIDeNt, tHaT pOLICe receIveD dEFiNITe InFOrmaTION ThAt aPPELlaNt hAD BeeN iNvolVed IN the murDeR Of mR. AlLen. accoRDInG To TEsTimoNy at A SUPPrESsioN heaRInG, ONe Of aPPellanT's COuSins who WAs IN CUStody cALLed aPpEllaNt fRom tHe pOlIce StaTIoN aND WAs aSSUrEd by AppellANT THat he, nOt THe coUSIn, was ReSpONSible foR THE hoMicide. the POliCe coNtACTEd aPpellANT A Few Days LATEr. wHEN He retURNED thEiR telephonE CAlL ThEy took hiM inTO CusTOdy. he LatEr GavE a statEMeNt AdmittInG thAT he shOT anD kILLEd mR. alLEN BuT cONteNding ThaT the SHooTIng WAs aCcidenTal, RAther than InteNtIonAL. tHE 15-YeAr-OlD cOmpAnion OF APPELLaNT, darrElL LipsCOmb (ALsO Known AS ChuCk wiLlIamS) TeStifIed At ThE TRIAl. in HiS CoNfeSsiON aPPelLANT stAted thAT liPScOmB SUGgesteD THe rOBBErY and waS WITH HIM wHen it was attEmpted. hE latER iNdicATed tO anoTHEr reLAtIvE THaT LIPsCoMb COuLd HAVe pREventEd THe SHooTINg bUt dId NOT do So. LIPsCOMb, HoWEveR, tEsTifIed THAt tHE AttemPTED rOBBERY wAS appELLanT's Own iDEA. he ALSo TesTIfIed thAt HE HAd Left tHe AUToMobILE aFtEr AppeLLaNt, aNd thaT aPpelLAnt AcCOsTed mR. allEn somE dIsTAncE aWAY. lIpscOmb denIeD bEING pResENt at thE SHOOTING, but TEstiFIED tHaT hE hEarD tWo sHOTS. hE SAid tHAT appelLanT then CamE RunNIng BacK TO The auTomoBile, ANd The ThREe youThs sPEd aWAY. HE sTatEd that aPPEllAnt tolD hIm that The VIctIm HaD "tusSled" wiTH aPpEllANT and thAt aPpEllAnt had THeN shOT hIm TwIce. aPpELLAnt waS TAlLER ThaN liPsCoMb AND HIS HaIR STylE mATcHEd the DesCrIPTiON givEN bY THe WITNEsS, mRS. seTTle, wHO SAw THe YOUThs RUnNING fRoM tHe arEa WHerE MR. AlLeN HAD faLLEN. APPELLaNt diD NoT TestIFy aT The TrIAL oR aT the sENteNcInG HeaRiNG, oTHEr tHaN TO TAKe tHe StAnd iN A jURy-Out hEaRinG tO COnFiRm ThaT HE haD BeEn aDvised oF HIs lEGaL righTs. IN adDITION to AdMIttInG To lIpScOMb and TO tHE pOliCE THaT hE Had sHOt MR. ALleN, HE ALSo admiTTED dOing SO TO hiS Aunt, MRs. elLA MAE MCClAIn, WHO vIsiTed him at THE Jail. aLTHOUGh tHERe WeRe dISCREpaNCIeS betWEEn THe TesTImOny of liPScOMb And APPelLANT'S StATemEnt, anD altHough sTrEnuOUs efFOrTs were maDe To iMpeaCh mRS. MccLAIn, THESE wERe issUes whiCH WERe SuBMItTeD To aND rESoLVED by THe JUry. THERe Is abuNdant maTeRIAl evIdence IN THe REcorD tO sUpPOrt THeiR Verdict, aND appEllANT's ATtack UpOn THe sUfFiCiENcY of tHe ConVicTInG EvIDENCE is wiThoUT merIt. sImilARLy wIthOUT subStAnce IS the conteNtION OF APpElLAnT tHAt tHE sTATE's EVidENCe FaIls TO SHOw PrEMEdiTATioN AND MAlIce. MURDer in The fIRst DeGReE IS DEFInEd IN T.c.A. § 39-2-202(a) As preMeDitATeD, WilLFUl, dELiBeRaTe ANd MAlIcIous HomIcIDE, bUt It iS aLsO DEfiNED aS iNcluDing any murdeR cOMmITTed IN tHe pErPetrAtIon OF CerTAIN sPeCifIED felONIes, INCLudiNG rObBerY. mUrDer IN THE FIrst DEGrEE IS SUFfICiEnTly SHOWn By proof Of A KiLLinG ComMItteD duRINg ONe oF tHeSE spEcifiEd fELONieS. staTE V. JohnSOn, 661 S.W.2d 854, 860-861 (Tenn. 1983); tOsH V. sTATE, 527 S.W.2d 146, 148 (tENn. CrIm. aPP. 1975). in ThIs And IN otHer cAsEs IT Has BEeN sUggESTED THaT A ChAnGe In THe WoRding oF The FIrsT deGREe MUrdER StaTUteS froM "kilLing" TO "muRdeR" BY 1977 TENn. PuB. AcTS Ch. 51, § 1, HAD tHE EFFeCT Of AbOLishINg tHe fEloNY-MUrdEr RulE. wE do Not so constrUE tHE StAtuTe AND dID Not DO so In JohnsoN, sUpRA, iN WHIcH THE HoMicidE OcCurREd iN 1980. appelLaNT atTaCkS tHE aDmISSibiLiTY oF His ConFESsIoN uPON THe gROUnd thAt It was nOT VoluNTarily giVeN. The TriAL Judge, HOWever, heLD a FUll pRE-TrIaL sUPpReSsion heaRing AnD rESOLVEd tHE FaCtUal ISsues agaiNsT ApPElLanT. THe rEcorD fUlLY SUppORTs HIs CONcLUSion ThaT AppElLanT was ClearLy aDViSeD of hIS lEgaL RigHts WITh REsPeCt tO tHE statEmeNT, aNd that THe StateMenT WaS VOLUnTAriLy given. AS prevIouSlY 958 InDIcAteD, apPeLlANt Had aLReAdy SEriOUslY InCRIMiNated HiMSELF IN a teLePhONE coNvERsatioN, MOniToReD by THE PoLicE, iN WHICh He aDViSed hiS couSIn tHAT He WAs rESPonSIble FOr mR. ALLEn'S DEatH And wOuld SO InForm The pOliCE. AT THE TIme ThE inVestIGaTiOn In tHIs CASe was iniTIatED, immeDIaTeLy aFtEr tHE SHoOtING, thE vIctiM hAD nOT DIeD. iNitIal PoLiCE DOCumENTS inDIcaTed tHaT an AgGRAvatEd ASSauLt had OCCuRRed, aND The CAptIoN TO AppeLlaNt'S STAtEmeNT CoNtaiNS tHe wOrDs "AggRAvATed aSSaUlt" rathER tHAn reFErRING tO a HoMIcIdE. The CONteXt Of the qUeStIOninG ItSelF, hOwevER, maDe it clear that thE DEAth of MR. aLlen WAS bEiNG INvesTigATed. wE FInD No MeriT To tHe COntentiOn Of ApPElLAnt thAT he wAs In any waY MIsLed As TO tHe nATUre oF thE potentiAl chArGes AgaINSt HIM. IN hiS COnVerSAtIon With HiS CoUSiN He had ADmItted kNOWiNG thAt mr. AlLeN hAd DieD, AND HIs COnTEnTIOn ThaT HiS foRmAl StATemeNT waS iNVolUnTaRy beCAuSe OF INSUfFicIeNt iNFORMatIoN aS to the chargEs Is eNTiRElY uNPERSuAsivE. LIkeWise we finD nO meriT whATeVeR TO tHE suGGEStIOn Made iN aPPEllAnt's BRIef ThaT He laCKed sUffiCienT mentAL CaPAciTy to knoW Or unDErstAND THE STatEMEnt made or ThE natUre of tHE cHarges. iN HIs BRIeF CoUnSel fOr APpELlaNT atTaCks thE coNstItutioNAliTY Of THE DEatH PENAlTy in gENeRAL aNd oF tHe TENnESsEE StaTutE AUthorizING ITs ImPOsItIOn, On eLEven SepArATe gRoUNDs. NOnE of tHESE hAs been BrIeFeD oR argUed, BUt EAcH oF thEM has pREViouSlY beeN ConsidEReD iN dEtaiL In rEPOrtEd DECisiONs oF THiS CoUrt. we theReForE sEE no need tO ExAMiNe tHEse AsSigNmeNts in DetAIL but wilL bRiEflY MenTIOn sOME oF thEm. aPPelLant iNsIStS That tHe STAtutE Is DefiCiEnt In NOT reQUirINg NoTIcE oF tHe AgGRAvAtiNG cirCuMstANCes tO be reLiED upOn bY tHE StAte. THIs cONTEnTiON wAs REjEcTED iN HOusTOn v. StaTE, 593 s.W.2D 267 (tEnN. 1980), bUT, In aNY EvEnt, In tHE PREsENt CASe notiCE was gIvEn oF tHE PRINcipaL aGgRAVaTinG cIrCuMStaNce REliED upoN. FUrTHer, ruLe 12.3(B) of tHe TEnNesseE rulES of CRIMINal pRoCeduRE haS Been aMENdED to REqUire sucH nOTIce FOR TRIalS ocCUrrInG afTER AUgUSt 22, 1984. THE presenT tRIal OCcURReD BEFoRE that dAtE. SINCe NOTIce was aCtUALLY GIveN, howEVEr, AND SINCE it waS nOt CONStituTIONAlLY REQUIREd, WE FIND THIs issuE to bE withouT meRiT. also wIthOUt Merit iS tHe cOntEnTIOn thAT THE sTaTUTes CREATE twO SePaRAte ofFeNSes So AS to poSe A doUbLe JEOpaRDY pRoBLEm. tHiS ISsue WAS conSiDeREd AND RejECtED in thE hOuStOn CASe, aND in STaTe V. aUSTIN, 618 s.w.2d 738, 742 (tENn. 1981). EaCH Of tHE OtHer COnTENtIONs aDVaNcED by apPelLanT HAS bEen cAReFUlly eXAMINEd IN rEporTeD DeCiSIonS Of thE courT, aND wE See no NeED to rEpeAT THoSE DiScUssIoNS heRe. APPELlAnT has AdVancED a FiVe-PARt ChAlLenGe to THE FeLonY-mUrDEr Rule iN caseS iNvoLViNg MurDer In The FiRST DEgree. thESE cOnTeNtIons WERe COnSidEreD iN staTE v. SHEFfieLd, 676 s.w.2d 542, 551 (tEnn. 1984), wHERE IDEntIcal ArGuMENTs werE CONSiderEd AND RejeCTED. MaNY Of tHe cOntentiONS aDVanCeD By appElLaNT in cONneCTIon WIth tHE coNSTitUTiOnal isSUe Are NoT EvEN REleVAnT to THIS caSe, SUcH AS the ValIdITY of soMe oF The AggraVatINg ciRcUmstanCEs oR tHe rEsPoNSIBIlity Of an aidER oR abettoR. aPPeLLANt HaS aSSIGned as erRoR thE FaiLUre of tHe TRIAl jUDgE TO perMit inDIVIduaL examInAtioN oF ProsPECtIvE jurORs. tHERe iS nO COnteNTion mADE In thiS cAse tHAT Any rEversIBle ERrOr OccurRED dURINg THe LeNgThy JuRy ExaMInAtioN. fURther tHe TrIaL JudgE INDIcAtEd thAt He WoulD grANT indiViDUAL eXAmiNaTiON IF NECEssaRy, ANd sOme indiviDUAl qUESTiOnIng was iN FACt permitTEd. THIs MAtTEr Lay wITHiN The DiScrETIoN Of thE TriAl jUdGE, AND WE FIND No aBuSE Of THaT DiscRetIoN. SEE stATE v. WoRkMaN, 667 s.w.2d 44, 49 (tEnN. 1984). IN two ASSiGnMENTs of ERror COunsEl for apPeLLAnt COnTeNds that reVErSIbLE ErRor occuRrED DurINg clOsing arguMENt aT tHe GuIlT stAGE OF ThE triAl wheN oNE of tHe PRoSeCUtIng ATtORnEYS uNDErTOok tO ReMoVE 959 a Book fRom counSeL tAble ANd TO REfeR TO IT. tHe BoOK HAD RefErENce TO TEChniQuEs in	695 S.W.2d 954(1985) STATEofTennessee, Appellee, v. Ricky Goldie SMITH,Appellant. SupremeCourtof Tennessee, at Jackson. August12, 1985. 956 James V. Ball, Arch B.Boyd, III, Memphis, for appellant. W.J. Michael Cody, Atty. Gen. & Reporter, AnnLacy Johns, Asst. Atty. Gen., for appellee. OPINIONHARBISON, Justice. Appellant was convicted ofmurder inthe firstdegree and sentenced todeath by electrocution. We affirm the judgment and the sentence.In the lateafternoon of April 21, 1982, appellant twice shot and killed 71-year-old Walter Allen while attempting to rob him. Appellant was atthat time not quite 23 years of age. He and two other youths had been "cruising" in an automobilebelonging to appellant's aunt after having taken appellant's sister to a bus stop. Thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as hedid almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to anyof thethree youths and who had not offered them anyprovocationwhatever. Leaving his aunt's parked automobile, which was being driven by one of his cousins, appellant accostedthe victim and demanded his money. The victim apparently resisted and sought to grapple with appellant or to apprehend him. Appellant shotthe victim twice, eitherof the woundsbeing sufficientto cause death. Mr. Allen died a little over four hours later. Appellant didnot pause to render aid,butfled, leaving his elderly victim lying helpless and bleeding on the sidewalk. Appellantreturned to the automobileasdidthe only oneof his companions whohad leftit. The other had remained inthe driver'sseat. The three were seen leaving the area at a high speed.A witness wasable to furnish some descriptionof appellant and the 15-year-old companion who had stepped out of the automobile with him. She was also able partially to describe the numbering on 957 the license plate.The automobile wasdiscovered by police the next dayand identified as belongingto appellant's aunt. It was not until November, someseven months later, inconnection with an unrelatedcriminal incident,that police received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant's cousins who was in custody calledappellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. The police contacted appellanta few dayslater. When he returned theirtelephone call they took him into custody. He later gavea statement admitting that heshot and killed Mr. Allen butcontending that the shooting was accidental, rather than intentional. The15-year-old companion of appellant, DarrellLipscomb (also known as Chuck Williams) testified at the trial. In his confession appellantstated that Lipscomb suggested the robbery andwas with him when it was attempted. He later indicated to another relativethat Lipscomb could have preventedthe shooting but didnot do so. Lipscomb,however, testified that the attempted robbery was appellant's own idea. He also testified that he had leftthe automobileafter appellant, and that appellant accosted Mr. Allensome distance away. Lipscomb denied being present atthe shooting, but testified that he heard two shots. He said that appellant then came running back to the automobile, and the three youths sped away. He stated that appellant told him that the victim had "tussled" with appellant and that appellant had then shot him twice.Appellant wastaller than Lipscomband hishair style matched thedescription given by the witness, Mrs. Settle,who saw the youths running from the area where Mr. Allenhad fallen. Appellantdid not testifyat the trial oratthe sentencing hearing, other than to take the stand in a jury-outhearing to confirm that he had been advised of his legal rights. Inadditionto admitting to Lipscomb and to the police that he had shot Mr. Allen, he alsoadmitteddoing so to his aunt, Mrs. Ella MaeMcClain, who visited him at the jail.Althoughthere were discrepancies between the testimonyof Lipscomb and appellant's statement, and although strenuous efforts weremadeto impeach Mrs.McClain, these were issueswhich were submitted toand resolved by the jury. There isabundant material evidence in the record to support their verdict, and appellant's attack upon the sufficiency of the convicting evidence is withoutmerit. Similarlywithout substance is the contention ofappellant thatthe State's evidence fails to showpremeditation and malice. Murder in the first degree is defined in T.C.A. § 39-2-202(a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including anymurder committed in theperpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed duringone of these specified felonies. State v. Johnson, 661 S.W.2d854, 860-861 (Tenn. 1983); Tosh v.State, 527 S.W.2d 146, 148 (Tenn. Crim. App. 1975). Inthis and in other cases it has been suggested that a change in the wording of the first degree murder statutes from "killing" to "murder" by1977 Tenn. Pub. Acts ch. 51, § 1, had the effect ofabolishing the felony-murder rule. We do not so construe the statute and did not do soin Johnson, supra, in which the homicide occurred in 1980. Appellant attacks the admissibilityofhis confessionupon the ground that it was notvoluntarily given. The trial judge, however, held a full pre-trial suppression hearing and resolvedthe factual issues against appellant. The record fully supports his conclusion thatappellant was clearly advised of his legal rights withrespect to the statement, and that the statement wasvoluntarily given. As previously 958 indicated, appellant had alreadyseriously incriminated himself in atelephone conversation, monitored by the police, in whichhe advised his cousinthat he was responsible for Mr. Allen's death and would so inform the police. At the time the investigationin this casewas initiated,immediatelyafter the shooting, the victim had not died. Initial police documents indicated that an aggravated assault had occurred, and the caption to appellant's statement contains the words "aggravated assault" rather than referringto a homicide. The context of the questioning itself,however, made itclearthat the death of Mr. Allenwas beinginvestigated. We find nomerit to the contention of appellant that he was in any way misled asto the nature of the potential charges against him. In his conversation with his cousin he had admitted knowing that Mr.Allen had died, and hiscontention that his formal statementwas involuntary becauseof insufficient information as to the charges is entirely unpersuasive. Likewise we findno meritwhatever to the suggestion made in appellant's brief that he lacked sufficient mental capacityto know or understand thestatement made or the nature of the charges. In his briefcounsel for appellantattacks the constitutionality ofthe death penaltyin general and of the Tennessee statute authorizing its imposition, on elevenseparate grounds.None of these has beenbriefed or argued, but each of them has previously been consideredindetail in reported decisions ofthis Court. We therefore see no need to examinethese assignments in detail butwill briefly mention some of them. Appellantinsists that the statute is deficient innot requiring notice of the aggravating circumstances to be relied upon by theState.This contention was rejected in Houstonv. State, 593 S.W.2d 267(Tenn. 1980), but, in any event, in the present case notice was given ofthe principal aggravating circumstancerelied upon. Further,Rule 12.3(b) of the Tennessee Rulesof Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice wasactuallygiven, however, and since it was not constitutionally required, we find this issue to be without merit.Also without merit is the contention that the statutes create two separate offenses so as to pose adouble jeopardy problem. This issue was considered andrejected in the Houston case, and in State v. Austin, 618 S.W.2d 738, 742 (Tenn. 1981). Each of the othercontentions advanced by appellant has been carefully examinedin reported decisionsofthe Court, and we see no need to repeat those discussions here.Appellant has advanced a five-part challenge to the felony-murder rulein cases involving murder in the first degree. These contentions were considered in State v. Sheffield,676 S.W.2d 542, 551 (Tenn. 1984),where identical arguments were consideredand rejected.Many of thecontentionsadvanced by appellant in connection withthe constitutional issue are noteven relevant to this case, such as the validity of some of the aggravating circumstances or theresponsibility of an aider or abettor. Appellant has assigned as error the failureofthe trial judge to permit individual examination of prospective jurors. There is no contention made in this case that any reversible error occurred during the lengthy jury examination. Further the trial judge indicated that hewould grant individual examination ifnecessary, and some individual questioning was in fact permitted. This matterlay within the discretionofthe trial judge, andwe find no abuse of that discretion. See State v. Workman, 667 S.W.2d 44,49 (Tenn. 1984). Intwo assignments of error counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneysundertook to remove 959 abook from counsel tableand torefer to it. The book hadreference to techniques in	695 S.W.2d 954 (1985) STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, _Appellant._ Supreme Court _of_ Tennessee, at Jackson. August 12, 1985. 956 James V. Ball, _Arch_ _B._ Boyd, III, _Memphis,_ for appellant. W.J. Michael Cody, _Atty._ Gen. _&_ Reporter, Ann _Lacy_ Johns, _Asst._ Atty. Gen., _for_ appellee. OPINION HARBISON, Justice. Appellant was convicted of murder in the first _degree_ and _sentenced_ to death by electrocution. We affirm the judgment and the sentence. _In_ the late _afternoon_ of April 21, 1982, appellant _twice_ shot and killed 71-year-old Walter Allen while attempting to rob _him._ Appellant _was_ at that time not quite 23 _years_ of age. He and two _other_ youths had been "cruising" in an automobile belonging to appellant's aunt after having taken _appellant's_ sister _to_ a bus stop. _Thereafter_ they saw the victim walking _along_ the _street_ near his home, carrying a sack of groceries, _as_ he did almost daily. Appellant was armed and decided to rob the victim, _who_ was previously _unknown_ to any of _the_ three youths and who had _not_ offered them any _provocation_ whatever. Leaving his aunt's parked automobile, which was being driven by _one_ of his _cousins,_ appellant accosted the victim and demanded his money. _The_ victim _apparently_ _resisted_ and sought to grapple with _appellant_ _or_ to apprehend him. Appellant shot the victim twice, either of the wounds _being_ sufficient to cause death. Mr. Allen died a little over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on _the_ _sidewalk._ Appellant returned to the automobile _as_ did the _only_ one _of_ his companions _who_ _had_ left _it._ The other had remained in the driver's seat. The three _were_ seen _leaving_ the area _at_ a _high_ speed. A witness _was_ able to furnish some description _of_ appellant and _the_ 15-year-old _companion_ who _had_ stepped _out_ of the _automobile_ with _him._ _She_ was also able partially _to_ describe _the_ numbering on 957 the _license_ plate. The automobile _was_ discovered by police _the_ next day and identified as belonging to appellant's aunt. It was _not_ _until_ November, some seven months later, in connection with an unrelated criminal incident, _that_ police received definite _information_ that _appellant_ had been involved in _the_ murder of Mr. Allen. According to testimony at a _suppression_ hearing, one _of_ _appellant's_ _cousins_ who was in custody called appellant from the police station and was assured _by_ _appellant_ that he, not the cousin, was responsible for _the_ homicide. The _police_ contacted appellant _a_ few days later. When he returned their _telephone_ _call_ they took him into _custody._ _He_ later gave a _statement_ _admitting_ _that_ he shot _and_ killed Mr. Allen but _contending_ that _the_ shooting _was_ accidental, _rather_ than intentional. The _15-year-old_ companion of appellant, Darrell Lipscomb _(also_ known as Chuck Williams) _testified_ _at_ the trial. In his confession appellant stated that Lipscomb suggested the robbery and was with him when _it_ was attempted. He later indicated to another relative that Lipscomb _could_ have prevented the shooting but did not do so. Lipscomb, however, testified that the attempted _robbery_ was appellant's _own_ _idea._ _He_ also testified that he had left _the_ automobile after _appellant,_ and _that_ appellant accosted Mr. Allen some distance away. Lipscomb denied being _present_ at the shooting, but testified that he heard two shots. He said that appellant then came _running_ back _to_ _the_ automobile, and the three _youths_ _sped_ away. He stated that appellant told him that the victim had "tussled" with appellant and that appellant had then _shot_ him twice. Appellant was _taller_ than Lipscomb and his hair style matched the description given by the witness, Mrs. Settle, who saw _the_ youths running from the area where Mr. _Allen_ had fallen. Appellant did not _testify_ at the trial or at the sentencing hearing, other than to _take_ the stand in a jury-out _hearing_ to confirm that _he_ _had_ been advised of his legal rights. In _addition_ to admitting _to_ Lipscomb and _to_ _the_ police that he _had_ shot Mr. Allen, he also admitted doing so to his aunt, Mrs. _Ella_ Mae McClain, who _visited_ him at the jail. Although there _were_ discrepancies between _the_ testimony of Lipscomb and appellant's statement, and although strenuous efforts were made _to_ _impeach_ Mrs. McClain, _these_ were issues which were submitted to and resolved by the jury. There is abundant material evidence in the record to support _their_ verdict, and appellant's attack upon the _sufficiency_ of the convicting _evidence_ is without merit. _Similarly_ _without_ substance is the _contention_ of appellant that the State's evidence fails to _show_ premeditation and _malice._ Murder in the first degree is defined in T.C.A. § 39-2-202(a) _as_ premeditated, willful, deliberate and malicious _homicide,_ _but_ it is also defined as including any murder committed in the perpetration of certain _specified_ _felonies,_ including robbery. _Murder_ _in_ the first degree is sufficiently shown by proof _of_ a killing committed during one _of_ these _specified_ felonies. _State_ _v._ Johnson, _661_ S.W.2d _854,_ 860-861 (Tenn. 1983); Tosh v. _State,_ 527 _S.W.2d_ 146, 148 _(Tenn._ Crim. App. 1975). In _this_ and in other cases it has been suggested that a change in the wording of the first degree murder _statutes_ from "killing" to _"murder"_ _by_ 1977 Tenn. Pub. Acts ch. 51, § 1, had the effect of abolishing the felony-murder rule. We do _not_ so construe _the_ statute and did not _do_ so in Johnson, _supra,_ in which the homicide occurred _in_ 1980. Appellant attacks the admissibility of his confession upon the ground _that_ _it_ was not _voluntarily_ given. _The_ trial _judge,_ however, held a full pre-trial suppression hearing and resolved the factual issues against appellant. The record fully supports his conclusion that appellant was clearly advised of his _legal_ rights with respect to the statement, and that _the_ statement was voluntarily given. As _previously_ 958 indicated, appellant had _already_ seriously incriminated himself in a telephone conversation, _monitored_ by the police, in which he _advised_ his cousin that he was responsible for Mr. Allen's death and would _so_ inform _the_ police. _At_ the time _the_ investigation in this _case_ was _initiated,_ immediately after the _shooting,_ the victim had _not_ died. Initial police documents indicated that an aggravated assault had occurred, and _the_ caption to appellant's _statement_ contains the words "aggravated assault" rather than _referring_ to a _homicide._ _The_ _context_ _of_ the questioning itself, _however,_ made it clear that the death of Mr. Allen was being investigated. We _find_ no merit to _the_ _contention_ _of_ _appellant_ that he was in _any_ _way_ misled as to the _nature_ of the potential charges against him. _In_ his conversation with his cousin he had admitted knowing that Mr. _Allen_ had died, and _his_ contention that his _formal_ statement _was_ _involuntary_ because of insufficient information as to the charges is entirely unpersuasive. Likewise we find no merit whatever to the suggestion made in appellant's brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges. In _his_ _brief_ _counsel_ for _appellant_ _attacks_ the constitutionality of the death _penalty_ in general and of the Tennessee statute authorizing its imposition, _on_ eleven separate grounds. None of these has been briefed _or_ argued, _but_ each of them has previously _been_ considered in _detail_ in reported decisions of this Court. We therefore see no need to _examine_ these assignments in detail but will briefly mention some of them. Appellant _insists_ that the statute is deficient in _not_ _requiring_ notice of _the_ _aggravating_ circumstances _to_ _be_ _relied_ upon by the State. This contention was rejected in _Houston_ v. State, 593 S.W.2d _267_ (Tenn. 1980), but, in any event, in _the_ present case notice was given of _the_ principal _aggravating_ circumstance relied upon. Further, Rule 12.3(b) of the Tennessee _Rules_ of Criminal Procedure has been _amended_ _to_ _require_ such _notice_ for trials occurring after August 22, 1984. The present trial occurred _before_ _that_ date. Since notice was actually given, however, and since it was _not_ constitutionally required, _we_ find this issue _to_ be without merit. Also without merit is the contention _that_ the statutes create two separate offenses so as _to_ pose _a_ double jeopardy problem. This _issue_ was considered and _rejected_ in _the_ _Houston_ _case,_ and in State v. Austin, 618 S.W.2d 738, _742_ (Tenn. _1981)._ Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and we see no need to repeat _those_ discussions _here._ _Appellant_ has advanced a _five-part_ _challenge_ to the felony-murder rule in _cases_ involving murder in the first degree. These contentions were considered in State v. Sheffield, 676 _S.W.2d_ 542, _551_ _(Tenn._ 1984), where _identical_ arguments were considered and rejected. _Many_ of the contentions advanced _by_ appellant in connection with the constitutional _issue_ are not even _relevant_ to this case, such as the validity _of_ some _of_ the aggravating _circumstances_ _or_ the _responsibility_ of an aider _or_ abettor. Appellant has assigned as error _the_ failure of the trial _judge_ to permit individual examination of prospective jurors. There is no contention made _in_ _this_ case that any _reversible_ error _occurred_ during _the_ lengthy jury examination. Further the trial judge indicated _that_ he would grant individual examination if necessary, and some individual questioning was in fact permitted. _This_ _matter_ lay within the discretion _of_ the trial judge, and we find _no_ abuse of _that_ discretion. See State v. Workman, 667 S.W.2d 44, 49 _(Tenn._ 1984). In two assignments of error counsel for appellant contends _that_ reversible _error_ occurred during closing _argument_ _at_ the _guilt_ stage of the _trial_ when one of the _prosecuting_ attorneys undertook to remove _959_ a book from counsel table _and_ _to_ refer to it. The _book_ had reference to techniques in
758 F.2d 649 U.S.v.Masters 81-6657 United States Court of Appeals,Fourth Circuit. 3/7/85 1 D.S.C. AFFIRMED	53 n. 2d 510 u. s. v. masters 81 - 6657 united states jury of appeals, 8th circuit. 3 / 7 / 85 1 d. s. c. affirmed	758 F. 2d 649 U. S. v. MSwters 81 - y6T7 UnlFed SgateQ x(urt of AppWWls, F9ur5h C*rsuit. 3 / 7 / 85 1 D. S. C. ZFFIRMEf	758 F.2d 649 U.S.v.Masters United States Court of Appeals,Fourth Circuit. 3/7/85 1 D.S.C. AFFIRMED	758 F.2D 649 U.s.V.maStErS 81-6657 uniTED sTATeS CoUrT OF appEAlS,FOurTh CircuIt. 3/7/85 1 d.s.c. aFFIRmED	758 F.2d649 U.S.v.Masters 81-6657 United States Court of Appeals,Fourth Circuit. 3/7/85 1 D.S.C. AFFIRMED	758 F.2d 649 U.S.v.Masters 81-6657 United States Court of _Appeals,Fourth_ _Circuit._ 3/7/85 _1_ D.S.C. AFFIRMED
Order entered April 12, 2016 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00963-CR CORNELIUS TURNER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-52355-M ORDER The Court GRANTS appellant’s April 11, 2016 motion to extend time to file his brief. We ORDER appellant’s brief filed as of the date of this order. /s/ LANA MYERS JUSTICE	order entered april 12, 2016 in the court of appeals fifth district of texas with reasons no. 05 - 15 - 01 - cr cornelius turner, appellant v. the state of texas, appellee on appeal from texas 194th appellate district court dallas county, texas trial court cause no. f15 - 52355 - m order the court granted appellant ’ s april 11, 2016 motion to extend time shall file his brief. we order turner ’ s brief filed as of the circuit requesting this order. / s / lana myers justice	Order entered April 12, E01^ In The Court of ALp#als Fifth EistEict of Texas at Da;lqs No. 05 - 15 - 00963 - CR CORNELIUS TURNER, sppellamt V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas Coujt6, Texas 6$ial Court Cause No. F15 - 5Q3^5 - M ORsFR The Court GRANTS appellant ’ s April 11, 2016 motion to extend time to file his brief. We ORDER appellant ’ s brief filed as of the date of this ordwg. / s / LANA MYERS JUSTICE	Order entered April 12, 2016 In The Court of Appeals of Texas at Dallas 05-15-00963-CR CORNELIUS TURNER, Appellant THE STATE OF TEXAS, On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court No. F15-52355-M ORDER The Court GRANTS appellant’s April 11, 2016 motion to extend time to file his brief. We ORDER appellant’s brief filed as of the date this order. /s/ LANA MYERS JUSTICE	ORDer entEReD AprIL 12, 2016 iN THe Court of appEAls fifth dIsTrICT oF TExAs At DALLaS no. 05-15-00963-CR cOrnEliUS TURNeR, ApPELLAnT v. the STATE of TExAs, AppelLeE on AppeAL FrOm The 194TH jUdiCIAL DIstrIcT COURt DAllAs CouNtY, texAs triAl COUrt caUSE no. f15-52355-m OrdEr THe COUrt granTs appElLant’s APriL 11, 2016 MOTION To ExtENd tIMe To fiLe HiS bRIeF. we ORder aPPEllaNt’s Brief FilEd as of ThE datE Of tHIS oRDER. /S/ lanA MyERS JustiCE	Orderentered April 12,2016 In The Court ofAppeals FifthDistrict of Texas atDallas No. 05-15-00963-CR CORNELIUS TURNER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal fromthe 194th Judicial District Court Dallas County, Texas TrialCourt Cause No. F15-52355-M ORDER The Court GRANTS appellant’s April 11, 2016 motion toextend timeto file his brief. We ORDER appellant’s brieffiled as of thedate of this order. /s/ LANA MYERS JUSTICE	Order entered _April_ 12, 2016 In _The_ Court of _Appeals_ _Fifth_ District _of_ Texas at _Dallas_ No. 05-15-00963-CR CORNELIUS TURNER, Appellant V. THE STATE OF _TEXAS,_ Appellee On Appeal from the 194th Judicial _District_ Court _Dallas_ County, Texas Trial Court Cause _No._ _F15-52355-M_ _ORDER_ The _Court_ GRANTS appellant’s April 11, 2016 motion _to_ extend time to file _his_ _brief._ We ORDER appellant’s brief filed as of the date of this order. /s/ _LANA_ MYERS JUSTICE
11 Cal.App.2d 357 (1936) H. B. RASMUSSEN, Respondent, v. FRESNO TRACTION COMPANY (a Corporation) et al., Appellants. Civ. No. 1745. California Court of Appeals. Fourth Appellate District. January 21, 1936. W. H. Stammer, Everts, Ewing, Wild & Everts, A. W. Carlson and Richard H. Reeve for Appellants. David E. Peckinpah and Harold M. Child for Respondent. Barnard, P. J. This is a motion to dismiss the appeal or affirm the judgment. [1] We have frequently held that such a motion should not be granted where it appears, after examination of the opening brief and the papers filed in support of the motion, that the case cannot be decided without examining the entire record. (Brown v. Gow, 126 Cal.App. 113 [14 PaCal.2d 322]; Ross v. Mahoney, 134 Cal.App. 199 [25 PaCal.2d 268]; Barr v. Hall, 9 Cal.App.2d 426 [49 PaCal.2d 1124].) At least two of the points raised on this appeal could not be decided without a complete examination of the entire record. This is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on this appeal and also upon the entire record in a prior appeal. Moreover, in his argument in support of this motion he goes outside of the opening brief and the moving papers and presents matters which require a study of the entire record. An examination of the opening brief and the moving papers indicates that the questions here raised call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to the assistance of the respondent. The motion is denied. Marks, J., and Jennings, J., concurred.	11 cal. app. 2d 357 ( 1936 ) h. b. rasmussen, respondent, v. fresno traction company ( a corporation ) et al., appellants. civ. d. 1745. california court of appeals. fourth appellate district. january 21, 1936. w. h. stammer, everts, ewing, wild & everts, a. w. carlson and richard h. reeve for appellants. david e. peckinpah and harold m. child for respondent. barnard, p. j. this is a motion to dismiss the appeal or affirm the judgment. [ 1 ] we have frequently held that such a motion should not be granted where it appears, after examination of the opening brief and the papers filed in support of the motion, that the appeal cannot be decided without examining the entire record. ( brown v. gow, 126 cal. app. 196 [ 14 pacal. 2d 322 ] ; ross v. mahoney, 134 cal. app. 199 [ 25 pacal. 2d 268 ] ; barr v. hall, 9 cal. app. 2d 426 [ 49 pacal. ca 1124 ]. ) at least two of the petitions raised on this appeal could not be decided without a complete examination of the entire record. this is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on this appeal and also upon the entire record in a prior appeal. moreover, on his argument in consideration of this motion he goes outside of the opening brief and the moving papers and presents matters which required a study of the entire record. an examination of the opening brief and the moving papers indicates that the questions here now call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to the judgment of the respondent. the motion is denied. marks, j., and jennings, j., concurred.	11 Cal. App. 2d 357 (1936) H. B. RASMUSSEN, Respondent, v. FRESNO TRACTION COMPANY (a Cirpoeation) et al. , Appellants. Civ. No. 1745. California Dour4 of Appeals. Fourth Appellate DiCt3ict. January 21, 1936. W. H. Stammer, Everts, Ewing, Wild & Everts, A. W. Carlson and Richard H. Reeve for Appellants. David E. Peckinpah and Harold M. Child for Respondent. Barnard, P. J. This is a kotUon to dismiss the appeal or affirm the judgment. [1] We have frequently held that such a motKPn should not be granted where it appears, after examination of the opening brief and the papers filed in sulporR of the motion, that the case cannot be decided without examining the en$ige record. (Brown v. Gow, 126 Cal. App. 113 [14 PaCal. 2d 322 ]; Ross v. Mahoney, 134 Cal. App. 199 [25 PaCal. 2d 268 ]; Barr v. Hall, 9 Cal. App. 2d 426 [49 PaCal. 2d 1124 ].) At ldsst two of the points raised on this appeal could not be decided without a complete examination of the entire record. This is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on Rhks appeal and also upon the entire record in a prior appeal. Moreover, in his argument in support of this motion he go@X outside of the opening brief and the moving papers and presents matters which require a study of the entire record. An examination of the opening brief and the moving papers indicates that the questions here raised call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to the assistance of the respondent. The motion is denied. Marks, J. , and Jennings, J. , concurred.	11 Cal.App.2d 357 (1936) H. B. Respondent, v. FRESNO TRACTION COMPANY (a Corporation) et al., Appellants. Civ. No. California Court of Appeals. Fourth Appellate District. January W. H. Everts, Ewing, Wild & A. W. Carlson and Richard H. Reeve for Appellants. Peckinpah Harold Child for Respondent. Barnard, P. J. This is a motion to dismiss the appeal affirm the judgment. We have frequently held that such a motion should not be where it appears, after of the opening brief and the papers filed in support of the that the case cannot be decided without examining the entire record. (Brown v. Gow, 126 Cal.App. 113 [14 PaCal.2d Ross v. Mahoney, 134 199 [25 PaCal.2d 268]; Barr v. Hall, 9 Cal.App.2d 426 [49 PaCal.2d 1124].) At least two of the points raised could not be decided without complete examination of the entire record. This is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on this appeal and also upon the entire record in a prior appeal. Moreover, his argument in support of this motion he goes outside of the opening brief and the moving papers and presents matters which require a study of the entire record. An examination of the opening brief and the moving papers that the questions here call for careful consideration and will require a thorough examination of the in all of which the court is entitled the assistance of the respondent. The motion is denied. Marks, Jennings, J., concurred.	11 cAl.aPp.2D 357 (1936) h. b. RAsmussEn, ReSpONdENT, V. frEsno traCTIoN coMpanY (a CorporATiON) eT aL., apPEllANtS. CiV. NO. 1745. CaLIFoRnia coUrt oF apPeaLS. foURTh ApPeLlaTe DisTRict. JaNUARy 21, 1936. W. h. STAmMeR, eVertS, EWinG, wilD & evertS, a. w. cARLSON And RiChARd h. rEEvE fOR appeLLaNtS. DaViD E. PecKInPAh and HAroLD M. CHild FOR resPOndENT. bArnArd, P. J. ThiS is A moTION tO disMisS tHE aPPEAl Or AffirM THE jUdgMEnT. [1] wE Have FrequEnTlY HELd THAT sUcH A moTIoN sHOULd not BE GrantEd wheRe IT APPEARs, AFTeR EXAMiNaTiON oF thE openinG BRiEF ANd the PaPeRS fILed in suPporT Of tHe MotiON, thAt THE CaSe CAnNot be dEcidED wiThOUt ExAmINinG tHE ENTIre recORD. (brown V. GoW, 126 cAL.app. 113 [14 paCal.2d 322]; ROsS v. MaHOney, 134 cAl.app. 199 [25 pAcAL.2D 268]; barR V. haLL, 9 cAL.apP.2D 426 [49 PACal.2D 1124].) aT lEAst TWO of tHE poInTs RaiSed on tHIS aPPeaL cOULd NoT be DECiDeD WIThoUT A CoMPLETe ExAmINATiON OF ThE eNtiRE record. thiS Is vIrTUAllY CoNCEDed By tHE resPondent, wHose NOTICe of mOtIon STAteS THat tHE sAMe woULd Be bAsED UPoN the EnTire REcOrd on this AppeAL aNd aLSO UpoN THE EntIrE ReCOrd In A prioR appEal. MorEoVer, in his aRgUment In suPPORt of THiS MOtiOn hE goes oUTsiDe OF THe OPENIng briEF anD THE MOViNG PapeRS aNd presENTS MATTerS WhicH ReQuIre A sTudY Of tHE Entire recORd. aN eXamInAtiOn of THe OpeNing BRIef And tHe mOVINg PapeRs indiCATeS tHAT thE QuesTIoNs hERe rAiSED Call FoR cAreful CoNsIDerATioN AND will reQUIRe a tHoROugh EXaMiNATION Of thE evidENCe, iN aLL Of WhIcH THE cOURt iS eNtitLED to tHe asSIsTanCe of The REspOnDENt. tHe mOTIoN iS dENiEd. MaRKS, j., ANd jEnNiNgs, j., cOnCurReD.	11 Cal.App.2d 357 (1936) H. B.RASMUSSEN, Respondent, v.FRESNO TRACTION COMPANY (a Corporation) et al., Appellants. Civ. No. 1745. CaliforniaCourtof Appeals. Fourth Appellate District. January 21, 1936. W. H. Stammer, Everts, Ewing,Wild & Everts, A. W. Carlsonand Richard H. Reevefor Appellants. David E.Peckinpah andHarold M.Child for Respondent. Barnard,P. J. This is a motion to dismiss the appeal or affirm the judgment. [1] We havefrequently held that such amotion should not be granted where it appears, after examination of the opening briefand thepapers filed in support of themotion, that the case cannot bedecided without examining the entire record. (Brown v. Gow, 126 Cal.App. 113 [14 PaCal.2d 322]; Rossv. Mahoney, 134 Cal.App. 199 [25 PaCal.2d 268]; Barr v. Hall, 9 Cal.App.2d 426 [49 PaCal.2d 1124].)Atleast two of the points raised on this appeal could not bedecided without a complete examination of the entire record.This is virtually conceded by the respondent, whose notice of motion statesthatthe same would be based upon theentire record on this appeal and also upon the entire record in a prior appeal. Moreover, in his argument in support of this motion he goes outside of the opening brief and the moving papers and presentsmatters which require a study of the entire record.An examination of the opening brief and the movingpapers indicates that the questions here raised call for careful consideration andwill require a thorough examination ofthe evidence, inallof which the court isentitled to the assistance of the respondent. The motion is denied. Marks, J., and Jennings, J., concurred.	11 Cal.App.2d 357 (1936) _H._ B. RASMUSSEN, Respondent, v. FRESNO TRACTION COMPANY (a _Corporation)_ et al., Appellants. Civ. No. 1745. California Court _of_ Appeals. Fourth _Appellate_ _District._ _January_ 21, 1936. W. H. _Stammer,_ Everts, Ewing, _Wild_ _&_ Everts, A. W. Carlson and Richard _H._ Reeve _for_ Appellants. David E. Peckinpah _and_ Harold M. _Child_ for _Respondent._ Barnard, P. J. _This_ is a motion _to_ dismiss the appeal or affirm the judgment. [1] _We_ have _frequently_ held that _such_ _a_ motion should not _be_ granted _where_ it appears, _after_ examination of the opening brief and the papers filed in support of the motion, _that_ _the_ case cannot be decided _without_ _examining_ the entire record. (Brown v. _Gow,_ 126 Cal.App. 113 [14 _PaCal.2d_ 322]; Ross v. Mahoney, 134 Cal.App. _199_ [25 PaCal.2d 268]; Barr v. Hall, _9_ Cal.App.2d _426_ [49 _PaCal.2d_ 1124].) At least _two_ of the points _raised_ _on_ this _appeal_ _could_ not _be_ decided _without_ a complete examination of the entire record. _This_ is _virtually_ conceded by the _respondent,_ _whose_ notice of motion states that the _same_ would be based _upon_ the entire _record_ _on_ this _appeal_ and also upon the entire record in a _prior_ appeal. _Moreover,_ in his argument _in_ support of _this_ _motion_ he goes _outside_ of the opening brief and the _moving_ _papers_ and presents matters _which_ require a study of the entire record. An _examination_ _of_ the _opening_ brief _and_ the _moving_ papers indicates _that_ the questions here raised call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to _the_ _assistance_ of the respondent. The motion is denied. Marks, J., and Jennings, J., concurred.
37 F.3d 477 UNITED STATES of America, Plaintiff-Appellee,v.Samuel William DONAGHE, Defendant-Appellant. No. 93-30058. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1993.Decided Sept. 30, 1994. Sheryl Gordon McCloud, Seattle, WA, for defendant-appellant. Sean Connelly, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before: BROWNING, NORRIS, and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure. 2 * On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U.S.C. Sec. 1542. The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were constitutional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaulting minors--he had been convicted of four such offenses previously--the court imposed the condition, among others, that Donaghe not associate with minors without the consent of the Probation Office. 3 On March 8, 1990, the district court revoked Donaghe's probation pursuant to 18 U.S.C. Sec. 3563 because he had violated conditions of probation. Specifically, Donaghe had possessed a firearm, failed to inform the Probation Office of his new employment, associated with a minor foreign exchange student for whom he was the host parent, and been convicted in state court of solicitation to commit assault and two counts of rape. The district court then sentenced Donaghe to five years imprisonment for the passport offense, again under pre-Guidelines law. 4 On appeal, this court vacated the sentence and held that the Guidelines applied. We remanded for resentencing, specifying that the district court consider United States v. White, 925 F.2d 284 (9th Cir.1991). United States v. Donaghe, No. 92-30183, 978 F.2d 716 (Table), 1992 WL 317200, 1992 U.S.App. LEXIS 29342 (9th Cir. Sept. 15, 1992). At resentencing on January 22, 1993, the district court adopted the Presentence Report ("PSR") that calculated Donaghe's criminal history category as 1, his total offense level as 4, and the resulting sentencing range as 0-6 months. The court also adopted the PSR's recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release. II 5 When we remanded this case for resentencing under the Guidelines, we explicitly instructed the district court not to depart from the Guidelines based on Donaghe's conduct during probation. Instead, we stated that "[i]f the district court chooses to depart it must cite factors, available to it at the original sentencing, sufficient to support its decision. It may consider Donaghe's probation-violating conduct for its effect on the weighing of those departure factors." Donaghe, 1992 WL 317200, at * 1, LEXIS 29342, at * 3. 6 We relied on White to reach this conclusion. In that case, this court held that for resentencing under 18 U.S.C. Sec. 3565,1 the district court could not use probation conduct to "directly increase a sentence." White, 925 F.2d at 286. The court stated that the district court could depart from the Guidelines range, "provided that facts warranting departure were available at the initial sentencing." Id. at 287. However, the court also noted that "probation-violating conduct is not completely irrelevant to sentencing under Sec. 3565(b)2.... [T]he sentencing court can consider the conduct in determining whether to depart from the initial guideline range.... In other words, the court cannot make additional factual findings to justify a departure, but can reconsider its original decision not to depart in light of the defendant's subsequent actions." Id. 7 The Guidelines provide two means of departing upward from a sentence range: adjusting the criminal history category when the Guidelines do not adequately reflect the seriousness of the offender's past conduct or the likelihood that he or she will commit other crimes, under U.S.S.G. Sec. 4A1.3, p.s., and adjusting the offense level to take into consideration aggravating circumstances to a kind or a degree not considered by the Guidelines, according to U.S.S.G. Sec. 5K2.0, p.s. 8 In evaluating these adjustments, the reviewing court does "not search the record for permissible reasons for departure; instead, [it] analyze[s] the reasons actually given by the district court." United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir.1990). Here, the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed three factors that "were known to the Court at the time of the original sentence and would have justified an upward departure." First, Donaghe had been convicted between 1967 and 1973 of several sex-related crimes involving minors. Second, at the time of the original sentencing, he was being investigated for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a "sexual deviation, homosexuality with pedophilia." For the upward departure to be valid, all these factors must be proper bases for departure. Id. (If the district court "considered both proper and improper bases for departure, 'we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors,' and must therefore vacate the sentence and remand for resentencing") (citation omitted). 9 * As a basis for its departure, the district court relied on its determination that Donaghe's criminal history category inadequately reflected his past criminal conduct. The Guidelines do not allow past sentences of imprisonment exceeding one year and one month and occurring more than fifteen years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. Sec. 4A1.2(e)(1), (3). The Guidelines do not allow any other past sentences occurring more than ten years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. Sec. 4A1.2(d)(2), (3). Donaghe's misconduct occurred fifteen years prior to the initial sentencing. 10 However, the commentary to section 4A1.2 creates an exception for sentences imposed outside these time periods where the court finds "evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G. Sec. 4A1.2, comment. (n. 8). If the misconduct meets this description, "the court may consider this information in determining whether an upward departure is warranted." Id. 11 * Donaghe argues that his convictions for child molestation are not similar to the instant offense of falsifying a passport application. The government has the burden of demonstrating that such similarity exists. United States v. Starr, 971 F.2d 357, 362 (9th Cir.1992). The government argues that the crimes are similar because Donaghe was motivated to falsify the passport application in order to escape an investigation into new child molestation charges. Thus, the government maintains, the crimes were "inextricably linked." 12 The government's argument must fail. Although there may be a causal link between Donaghe's tendency toward sexually abusing children and the false application--because of his criminal behavior, he was in trouble and wanted to flee the country--this does not make the two crimes similar. The government's reasoning does not comport with this court's understanding of similarity, which requires a much closer likeness. For instance, in Starr, we held that possession of stolen property and embezzlement were similar to bank robbery, because all were "crimes of theft." 971 F.2d at 362. We did not require "[i]nquiry into the specific facts of the prior convictions." Id. And, in United States v. Cota-Guerrero, 907 F.2d 87 (9th Cir.1990), we concluded that past convictions for assault with a deadly weapon and assault and battery were similar to possession of a firearm by a felon because "they show a propensity toward violence and a willingness to use force." Id. at 89. As in Starr, we did not examine the particular facts surrounding each crime but instead concentrated on their general characteristics. 13 Child molestation and passport fraud have no characteristics in common. Unlike the crimes in Starr and Cota-Guerrero, they cannot be categorized together as crimes of fraud or of violence. They are linked only by the specific circumstances of this case, a factor not viewed as relevant. The crimes, thus, are not similar under the section 4A1.2 commentary. 2 14 The commentary to section 4A1.2 also creates	37 f. 3d at united states of america, plaintiff - appellee, v. samuel william donaghe, defendant - appellant. no. 93 - 30058. united states court of appeals, ninth circuit. argued and submitted dec. 15, 1993. decided sept. 30, 1994. sheryl gordon mccloud, portland, wa, for defendant - appellant. sean connelly, u. s. dept. of justice, washington, dc, for plaintiff - appellee. appeal from the united states district court for the western district of washington. before : browning, norris, and o ' scannlain, circuit judges. o ' scannlain, circuit judge : 1 we must decide whether the district court based its upward departure from the sentencing guidelines on proper factors and explained adequately the extent of its departure. 2 * on november 21, 1988, samuel donaghe was sentenced for making a false statement in a passport application in violation of 18 u. s. c. sec. 1542. the district court did not apply the sentencing guidelines, because it was unclear at that time where they remained constitutional, and sentenced him to three years of probation. because donaghe had a history of sexually assaulting minors - - he had been convicted of four such offenses previously - - the court imposed the condition, among others, that donaghe not associate with minors without the consent of the probation office. 3 on march 8, 1990, the district court revoked donaghe ' s probation pursuant to 18 u. s. c. sec. 3563 because he had violated breach of commitment. specifically, donaghe had possessed a firearm, failed to inform our probation office of his new employment, associated with a minor foreign exchange student for whom he was the host parent, and been convicted in state court of solicitation to commit assault and two counts of rape. the district court then sentenced donaghe to five years imprisonment for the passport offense, again under pre - guidelines acc. 4 on appeal, this court vacated the sentence and held that the guidelines applied. we remanded for resentencing, specifying that the district court consider united states v. white, 911 f. 2d 284 ( 9th cir. 1993 ). united states v. donaghe, no. 92 - 30183, 978 f. 2d 716 ( table ), 1992 wl 317200, 1992 u. s. app. lexis 29342 ( 9th cir. sept. 15, 1992 ). at resentencing on january 22, 1993, the district court adopted the presentence report ( " psr " ) that calculated donaghe ' s criminal history category as 1, his total offense level as 4, and the resulting sentencing range as 0 - 6 months. the court also adopted the psr ' s recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release. ii 5 when we remanded this case for resentencing under the guidelines, we explicitly instructed the district court not to depart from the guidelines based on donaghe ' s conduct during probation. instead, we stated that " [ i ] f the district court chooses to depart it must cite factors, available to it at the original sentencing, sufficient to support its decision. it may consider donaghe ' s probation - violating conduct for its effect on the weighing of those departure factors. " donaghe, 1992 wl 317200, at * 1, lexis 29342, at * 3. 6 we relied on white to reach this conclusion. in that case, this court held that for resentencing under 18 u. s. c. sec. 3565, 1 the district court could not use probation conduct to " directly increase a sentence. " white, 925 f. 2d at 286. the court stated that the district court could depart from the guidelines range, " provided that facts warranting departure were available at the initial sentencing. " id. at 287. however, the court also noted that " probation - violating conduct is not completely irrelevant to sentencing under sec. 3565 ( b ) 2.... [ t ] he sentencing court can consider the conduct in determining whether to depart from the initial guideline range.... in other words, the court cannot make additional factual findings to justify a departure, but can reconsider its original decision not to depart in light of the defendant ' s subsequent actions. " id. 7 the guidelines provide two means of departing upward from a sentence range : adjusting the criminal history category when the guidelines do not adequately reflect the seriousness of the offender ' s past conduct or the likelihood that he or she will commit other crimes, under u. s. s. g. sec. 4a1. 3, p. s., and adjusting the offense level to take into consideration aggravating circumstances to a kind or a degree not considered by the guidelines, according to u. s. s. g. sec. 5k2. 0, p. s. 8 in evaluating these adjustments, the reviewing court does " not search the record for permissible reasons for departure ; instead, [ it ] analyze [ s ] the reasons actually given by the district court. " united states v. montenegro - rojo, 908 f. 2d 425, 428 ( 9th cir. 1990 ). here, the district court, for the most part, relied on the psr to articulate the reasons for departure. the psr listed three factors that " were known to the court at the time of the original sentence and would have justified an upward departure. " first, donaghe had been convicted between 1967 and 1973 of several sex - related crimes involving minors. second, at the time of the original sentencing, he was being investigated for sexual misconduct with his nephew. finally, a 1968 psychiatric evaluation diagnosed donaghe as having a " sexual deviation, homosexuality with pedophilia. " for the upward departure to be valid, all these factors must be proper bases for departure. id. ( if the district court " considered both proper and improper bases for departure, ' we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors, ' and must therefore vacate the sentence and remand for resentencing " ) ( citation omitted ). 9 * as a basis for its departure, the district court relied on its determination that donaghe ' s criminal history category inadequately reflected his past criminal conduct. the guidelines do not allow past sentences of imprisonment exceeding one year and one month and occurring more than fifteen years before the sentencing date to be considered in determining a criminal history category. u. s. s. g. sec. 4a1. 2 ( e ) ( 1 ), ( 3 ). the guidelines do not allow any other past sentences occurring more than ten years before the sentencing date to be considered in determining a criminal history category. u. s. s. g. sec. 4a1. 2 ( d ) ( 2 ), ( 3 ). donaghe ' s misconduct occurred fifteen years prior to the initial sentencing. 10 however, the commentary to section 4a1. 2 creates an exception for sentences imposed outside these time periods where the court finds " evidence of similar, or serious dissimilar, criminal conduct. " u. s. s. g. sec. 4a1. 2, comment. ( n. 8 ). if the misconduct meets this description, " the court may consider this information in determining whether an upward departure is warranted. " id. 11 * donaghe argues that his convictions for child molestation are not similar to the instant offense of falsifying a passport application. the government has the burden of demonstrating that such similarity exists. united states v. starr, 971 f. 2d 357, 362 ( 9th cir. 1992 ). the government argues that the crimes are similar because donaghe was motivated to falsify the passport application in order to escape an investigation into new child molestation charges. thus, the government maintains, the crimes were " inextricably linked. " 12 the government ' s argument must fail. although there may be a causal link between donaghe ' s tendency toward sexually abusing children and the false application - - because of his criminal behavior, he was in trouble and wanted to flee the country - - this does not make the two crimes similar. the government ' s reasoning does not comport with this court ' s understanding of similarity, which requires a much closer likeness. for instance, in starr, we held that possession of stolen property and embezzlement were similar to bank robbery, because all were " crimes of theft. " 971 f. 2d at 362. we did not require " [ i ] nquiry into the specific facts of the prior convictions. " id. and, in united states v. cota - guerrero, 907 f. 2d 87 ( 9th cir. 1990 ), we concluded that past convictions for assault with a deadly weapon and assault and battery were similar to possession of a firearm by a felon because " they show a propensity toward violence and a willingness to use force. " id. at 89. as in starr, we did not examine the particular facts surrounding each crime but instead concentrated on their general characteristics. 13 child molestation and passport fraud have no characteristics in common. unlike the crimes in starr and cota - guerrero, they cannot be categorized together as crimes of fraud or of violence. they are linked only by the specific circumstances of this case, a factor not viewed as relevant. the crimes, thus, are not similar under the section 4a1. 2 commentary. 2 14 the commentary to section 4a1. 2 also creates	37 F. 3d 477 UNITED STATES of America, Plaintiff - Appellee, v. Samuel William DONAGHE, Defendant - Appellant. No. 93 - 30058. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 15, 1993. Decided Sept. 30, 1994. Sheryl Gordon McCloud, Seattle, WA, for defendant - appellant. Sean Connelly, U. S. Dept. of Justice, Washington, DC, for plaintiff - appellee. Appeal from the United States District Court for the Western District of Washington. Before: BROWNING, NORRIS, and O ' SCANNLAIN, Circuit Judges. O ' SCANNLAIN, Circuit Judge: 1 We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure. 2 * On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U. S. C. Sec. 1542. The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were consgit^tional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaulting minors - - he had been convicted of four such offenses previously - - the court imposed the condition, among others, that Donaghe not associate with minors without the consent of the Probation Office. 3 On March 8, 1990, the district court revoked Donaghe ' s probation pursuant to 18 U. S. C. Sec. 3563 because he had violated conditions of probation. Specifically, Donaghe had possessed a firearm, failed to inform the Probation Office of his new employment, associated with a minor foreign exchange student for whom he was the host parent, and been convicted in state court of solicitation to commit assault and two counts of rape. The district court then sentenced Donaghe to five years imprisonment for the passport offense, avaOn under pre - Guidelines law. 4 On appeal, this court vacated the sentence and held that the Guidelines applied. We remanded for resentencing, specifying that the district court consider United States v. White, 925 F. 2d 284 (9th Cir. 1991 ). United States v. Donaghe, No. 92 - 30183, 978 F. 2d 716 (Table ), 1992 WL 317200, 1992 U. S. App. LEXIS 29342 (9th Cir. Sept. 15, 1992 ). At resentencing on January 22, 1993, the district court adopted the Presentence Report (" PSR ") that calculated Donaghe ' s criminal history category as 1, his total offense level as 4, and the resulting sentencing range as 0 - 6 months. The court also adopted the PSR ' s recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release. II 5 When we remanded this case for resentencing under the Guidelines, we explicitly instructed the district court not to depart from the Guidelines based on Donaghe ' s conduct during probation. Instead, we stated that " [i] f the district court chooses to depart it must cite factors, available to it at the original sentencing, sufficient to support its decision. It may consider Donaghe ' s probation - diolatiHg conduct for its effect on the weighing of those departure factors. " Donaghe, 1992 WL 317200, at * 1, LEXIS 29342, at * 3. 6 We relied on White to reach this conclusion. In that case, this court held that for resentencing under 18 U. S. C. Sec. 3565, 1 the district court could not use probation conduct to " directly increase a sentence. " White, 925 F. 2d at 286. The court stated that the district court could depart from the Guidelines range, " provided that facts warranting departure were available at the initial sentencing. " Id. at 287. However, the court also noted that " probation - violating conduct is not completely irrelevant to sentencing under Sec. 3565 (b) 2. .. . [T] he sentencing court can consider the conduct in determining whether to depart from the initial guideline range. .. . In other words, the court cannot make additional factual findings to justify a departure, but can resonAider its original decision not to depart in llTht of the defendant ' s subsequent actions. " Id. 7 The Guidelines provide two means of departing upward from a sentence range: adjusting the criminal history category when the Guidelines do not adequately reflect the seriousness of the offender ' s past conduct or the likelihood that he or she will commit other crimes, under U. S. S. G. Sec. 4A1. 3, p. s. , and adjusting the offense level to take into consideration aggravating circumstances to a kind or a degree not considered by the Guidelines, according to U. S. S. G. Sec. 5K2. 0, p. s. 8 In evaluating these adjustments, the reviewing court does " not search the record for permissible reasons for departure; instead, [it] analyze [s] the reasons actually given by the district court. " United States v. Montenegro - Rojo, 908 F. 2d 425, 428 (9th Cir. 1990 ). Here, the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed three factors that " were known to the Court at the time of the original sentence and would have justified an upward departure. " First, Donaghe had been convicted between W96y and 1973 of several sex - related crimes involving minors. Second, at the time of the original sentencing, he was being investigated for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a " sexual deviation, homosexuality with pedophilia. " For the upward departure to be valid, all these factors must be proper bases for departure. Id. (If the district court " considered both proper and improper bases for departure, ' we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors, ' and must therefore vacate the sentence and remand for resentencing ") (citation omitted ). 9 * As a basis for its departure, the district court relied on its determination that Donaghe ' s criminal history category inadequately reflected his past criminal conduct. The Guidelines do not allow past sentences of imprisonment exceeding one year and one month and occurring more than fifteen years before the sentencing date to be considered in determining a criminal history category. U. S. S. G. Sec. 4A1. 2 (e) (1 ), (3 ). The Guidelines do not allow any other past sentences occurring more than ten years before the sentencing date to be considered in determining a criminal history category. U. S. S. G. Sec. 4A1. 2 (d) (2 ), (3 ). Donaghe ' s misconduct occurred fifteen years prior to the initial sentencing. 10 However, the commentary to section 4A1. 2 creates an exception for sentences imposed outside these time periods where the cou%4 finds " evidence of siKi:ar, or serious dissimilar, criminal conduct. " U. S. S. G. Sec. 4A1. 2, comment. (n. 8 ). If the misconduct meets this description, " the court may consider this information in determining whether an upward departure is warranted. " Id. 11 * Donaghe argues that his convictions for child molestation are not similar to the instant offense of falsifying a passport application. The government has the burden of demonstrating that such similarity exists. United States v. Starr, 971 F. 2d 357, 362 (9th Cir. 1992 ). The government argues that the crimes are similar because Donaghe was motivated to falsify the passport application in order to escape an investigation into new child molestation charges. Thus, the government maintains, the crimes were " inextricably linked. " 12 The government ' s argument must fail. Although there may be a causal link between Donaghe ' s tendency toward sexually abusing children and the false application - - because of his criminal behavior, he was in trouble and wanted to flee the country - - this does not make the two crimes similar. The government ' s reasoning does not comport with this court ' s understanding of similarity, which requires a much closer likeness. For instance, in Starr, we held that possession of stolen property and embezzlement were similar to bank robbery, because all were " crimes of theft. " 971 F. 2d at 362. We did not require " [i] nquiry iHGo the specific facts of the prior convictions. " Id. And, in United States v. Cota - Guerrero, 907 F. 2d 87 (9th Cir. 1990 ), we concluded that past convictions for assault with a deadly weapon and assault and battery were similar to possession of a firearm by a felon because " they show a propensity toward violence and a willingness to use force. " Id. at 89. As in Starr, we did not examine the particular facts surrounding each crime but instead concentrated on their general characteristics. 13 Child molestation and passport fraud have no characteristics in common. Unlike the crimes in Starr and Cota - Guerrero, they cannot be categorized together as crimes of fraud or of violence. They are linked only by the specific circumstances of this case, a BactoT not viewed as relevant. The crimes, thus, are not similar under the section 4A1. 2 commentary. 2 14 The commentary to section 4A1. 2 also creates	37 F.3d 477 STATES of America, Plaintiff-Appellee,v.Samuel William DONAGHE, Defendant-Appellant. No. 93-30058. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1993.Decided Sept. 30, 1994. Sheryl McCloud, Seattle, WA, for Sean Connelly, Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for Western District of Washington. Before: NORRIS, and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure. 2 * On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a application in violation of 18 U.S.C. Sec. 1542. The district did not apply the Guidelines, because it was unclear at that they were constitutional, and sentenced to three years of Because Donaghe a history of sexually assaulting minors--he been convicted of such offenses court imposed the condition, among that not associate with minors without consent of the Probation Office. 3 On March 8, 1990, the district court revoked Donaghe's probation pursuant to 18 U.S.C. Sec. 3563 because he had violated conditions probation. Specifically, Donaghe had possessed a firearm, to inform Probation Office of his new employment, associated with a minor foreign exchange for whom he host parent, and been convicted in state court of solicitation to commit assault counts of rape. The court then sentenced Donaghe to five years imprisonment for the passport offense, again under pre-Guidelines law. 4 On appeal, this vacated the sentence and held that the Guidelines applied. We remanded for resentencing, specifying that the district court consider United States v. White, F.2d 284 (9th Cir.1991). United States v. Donaghe, No. 92-30183, 978 F.2d 716 (Table), 1992 WL 317200, 1992 U.S.App. LEXIS 29342 (9th Cir. Sept. 15, 1992). At resentencing on 22, 1993, the district court adopted the Presentence Report that calculated Donaghe's history category as 1, his total offense level 4, and the resulting sentencing range as 0-6 months. The court also adopted the PSR's recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release. II 5 When we remanded case for resentencing the Guidelines, we explicitly instructed the district court not from the Guidelines based on Donaghe's conduct during probation. Instead, stated that "[i]f the district chooses to it must cite factors, available to it at the original sentencing, sufficient to support decision. It may consider Donaghe's probation-violating conduct for effect on the weighing of those departure factors." Donaghe, 1992 WL 317200, at * 1, LEXIS at * 3. 6 We relied on White reach this conclusion. In that case, this held that for resentencing U.S.C. Sec. 3565,1 the district court could not use probation conduct to "directly increase a sentence." White, F.2d at 286. The court stated that the district court could depart from the range, "provided warranting departure were available at the initial sentencing." Id. at 287. However, the court also noted that "probation-violating conduct is not completely to sentencing under 3565(b)2.... [T]he sentencing court can consider the conduct in determining to depart from the initial guideline range.... In other words, court cannot make additional factual findings to justify a departure, but can reconsider its original decision not to depart in light of the defendant's subsequent actions." Id. 7 The Guidelines provide two means of departing upward from sentence range: adjusting the criminal history category when the Guidelines do not reflect the seriousness of the past conduct the likelihood that he or she will commit other crimes, under U.S.S.G. Sec. 4A1.3, and adjusting the offense level to take into consideration aggravating circumstances a kind or a degree not considered by the Guidelines, according to U.S.S.G. Sec. p.s. 8 In these adjustments, the reviewing court does "not search the for permissible reasons for departure; instead, analyze[s] reasons actually given by district court." United States Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir.1990). the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed three factors that "were known the at the time of the sentence and would have justified an upward departure." First, Donaghe had been convicted between 1967 and of several sex-related crimes involving minors. Second, the time of the original sentencing, he was being for sexual with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a "sexual deviation, homosexuality with the upward departure to be all these factors must be proper bases for departure. Id. (If the district court "considered both proper and improper bases departure, 'we have no way to determine whether portion of the sentence based upon consideration of the improper factors,' and must the sentence and remand for resentencing") (citation omitted). 9 * As a basis for its departure, the district court relied on its determination that Donaghe's criminal history category inadequately reflected his past criminal The Guidelines do sentences of imprisonment exceeding one year and one month and occurring more than fifteen before the sentencing date to be considered determining criminal history category. U.S.S.G. Sec. 4A1.2(e)(1), (3). The Guidelines do not allow any other past sentences occurring more than ten years before sentencing date to be considered in determining criminal history category. U.S.S.G. Sec. 4A1.2(d)(2), (3). Donaghe's misconduct occurred fifteen years prior to the initial sentencing. 10 However, the commentary to section 4A1.2 creates exception for sentences imposed outside these time periods where the court finds "evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G. Sec. 4A1.2, comment. 8). If the misconduct meets description, "the court consider this information in determining whether an upward departure is warranted." Id. 11 * Donaghe argues that his convictions for similar to the instant offense of falsifying a passport application. The government has the burden demonstrating that such similarity exists. United States v. Starr, 971 F.2d 357, 362 Cir.1992). The government argues the crimes are similar because Donaghe was to falsify passport application in order to escape an investigation into new child molestation charges. Thus, the government maintains, the crimes were "inextricably linked." 12 The government's argument must fail. Although there may be a link between Donaghe's tendency toward sexually abusing children and the false application--because of his criminal behavior, he was in trouble and wanted to the does not make the two crimes similar. The government's does not comport with this court's understanding of similarity, which requires much closer For instance, in Starr, we held that possession of stolen property and embezzlement were similar bank robbery, because all were "crimes 971 F.2d at 362. We did not require "[i]nquiry into the specific facts of the convictions." Id. And, United States v. Cota-Guerrero, 907 87 (9th Cir.1990), we concluded that past convictions for with a weapon and assault and battery were similar to of a firearm by a because "they show a propensity toward violence and a to use force." at 89. in Starr, we not examine the particular facts surrounding crime but instead concentrated on their general characteristics. 13 Child molestation and fraud have no characteristics in common. Unlike the crimes Starr and Cota-Guerrero, they cannot categorized as crimes of fraud or of violence. They are linked only by the circumstances of this case, a factor not viewed as relevant. The thus, are not similar under the section 4A1.2 commentary. 2 14 The commentary to section 4A1.2 also creates	37 F.3D 477 UNIteD STatES Of amerIca, pLAINTiFf-apPELleE,V.samUEl WilLiAM DoNaGhE, defENDANt-apPELlaNT. nO. 93-30058. UNITed sTaTEs coURt of APpeAlS,NiNTh cIrcUIt. aRGueD aNd suBMiTtED dec. 15, 1993.deCiDEd Sept. 30, 1994. SHeRYl gORdON MCClOUd, seATtLe, Wa, foR DEFENdAnT-apPelLaNT. sEaN coNNELLY, U.S. dEPT. Of jUStiCe, WasHInGton, dC, FOr PLAInTIFF-apPelLeE. aPPEAL FRom the uNIteD stATes DISTRIcT COURT for ThE wEStERn dISTrICt Of WASHiNGton. befoRe: BrOWnING, nOrrIs, ANd o'ScANnlaIN, CiRcuIT JUDGeS. O'SCAnnlAin, cIrCUiT juDGE: 1 we MUST dEcide wHEtheR the diStrICt COUrT BASed Its uPwARD DePARTUre FROm thE senteNCInG GUiDElInEs On pRoPER FaCTORs AND eXPLainEd aDeQUatElY tHe EXTEnT of ItS DEpARTuRE. 2 * oN NOVEMbER 21, 1988, sAmuEL DonaGHe wAS SEnTEnced FOr MakING A FaLSE StaTemEnt iN A pAssPoRt APPLiCaTiON IN vIOlaTiOn Of 18 U.s.c. SeC. 1542. ThE DistRicT COUrT Did NOt aPply The SenTeNCIng GUiDELInEs, BeCaUse IT Was uNcLear AT tHat time WhEtHER TheY wEre ConStiTUTIOnAl, aND seNTEncED hIm tO thReE YEaRs OF PROBATiON. BecauSe dOnagHE haD a historY OF seXuAlLY asSAuLtINg MiNORS--he had BEEN CoNViCTEd of FOUr sUch OFfENseS prEvIoUsLy--thE coURt imPOSeD tHE COnDITiON, amONg OTheRs, tHAt dOnagHE Not AsSOCIaTe wItH miNoRs WiThOUT the CoNSEnt Of ThE PRobATION OfFiCe. 3 ON March 8, 1990, tHe DISTRiCt COurT ReVOkeD dOnAGHe'S PrOBATiON PURSuaNT To 18 u.s.C. seC. 3563 bEcAUSE He hAd ViOlaTed cOnDitiOns of pRobation. SPeciFIcaLlY, doNaGhe Had PoSSESSED a FIrEARm, FaIleD To INfoRM tHe pROBaTiOn OFFice OF HIS nEw emplOymenT, asSociated WitH A mINOR foREIGn EXcHANge studENt FOr wHoM he WAs thE HOst paREnt, AND beeN cONvIcteD In STATE cOuRT oF solIcItaTIon tO COMmIt aSsaUlt and Two coUnts oF RapE. thE dIStRicT coURT THen SenTEnCeD DoNAGhe To FivE YEArs ImPRisONmENT FOr THe pAsspOrT oFFENSE, agAin UNder prE-GUIdELiNEs law. 4 On AppEal, ThiS couRt vacateD THe sEnteNCe ANd heLd THaT The guideLines applied. wE remaNDeD FoR resENtencING, spEcIFyING ThAT The dIsTRiCt COurT cONsIdeR UnITeD sTaTeS V. WhitE, 925 F.2D 284 (9Th CIR.1991). uNiTED StATeS v. DonaGHe, NO. 92-30183, 978 F.2D 716 (TABLe), 1992 wL 317200, 1992 U.S.aPP. LEXIS 29342 (9tH cIr. Sept. 15, 1992). at rEsenTencinG ON JaNUAry 22, 1993, thE dIStRICT cOUrt AdopTeD tHE pReSenTEncE Report ("pSR") THAT CAlCulATEd dOnagHE's crIMInaL HISTOrY CategORy As 1, His ToTAL oFFense lEvEL As 4, ANd thE ResUlting sENTEncINg raNGe As 0-6 MoNTHS. thE COuRT aLSO AdOpteD THE psr's reComMENDaTIOn TO dEPart UpWarD anD imPOSeD a seNTEnce of fiVE yEarS ImPRISoNMenT And THREe yeARS SuPeRvised RELEAsE. ii 5 when WE RemaNDEd THIS caSE For RESENteNcINg undeR THE GuIdELInES, WE EXPLICiTLy insTRUcTed The districT COuRT NOt To depaRt froM the GUIDelInEs baSeD ON dONAghe'S conDuct DURinG PrObaTIoN. inSteaD, wE Stated tHaT "[i]F THe DiStriCt courT ChooSes To DEpART It Must cITE fActorS, avAILaBLE To iT At The oRigINAl seNTeNcInG, sUffiCIEnt tO sUpPoRt itS DeCiSIon. It MAy CoNsIdER DonAgHe'S PrObATION-viOLatIng cONDucT for iTs EfFECT oN the wEIGhIng oF THose DepARturE FacTors." donagHe, 1992 WL 317200, At * 1, leXIs 29342, aT * 3. 6 wE rElIed On whITE TO REaCh tHIS CoNCLusION. In thaT caSe, ThiS cOURt hELD tHat for rESeNtencing undER 18 u.s.c. SEc. 3565,1 The DisTRIcT coURt cOUld Not Use PRobATIOn conDuct tO "DIReCTlY INcREASe A SEnteNce." whitE, 925 F.2d At 286. THe coURT StAtED tHat The dIstrIct COUrT COUld DEpaRt FRoM tHE guIDeliNeS ranGE, "ProvIdED tHaT faCts WarRANTiNg DeparTUrE WeRe aVAilable aT the iNitial SeNTeNCInG." id. AT 287. hoWEveR, THE COuRt AlsO nOTeD tHAT "PrObaTion-VIOLATINg cONduCT Is noT CoMPlETelY iRreLEVAnT To SEnTEnCIng under SeC. 3565(B)2.... [T]he SENtENCiNg cOURt Can cOnSIDeR THE CoNDuCT iN DeTeRmInIng WHethEr To DepARt froM THe InitIAL gUIDeLine range.... in OTheR WoRdS, ThE CoURt cANnot maKE adDitIONAl fActuAL fiNDINGs To JuSTIFy A dEpaRtURE, bUT can ReCONSIDER itS orIgiNaL DecISIOn Not to dePART iN lIgHT OF tHE DEFeNDAnT'S sUBSeQUent ActionS." ID. 7 The gUiDeLines pRovIDe two mEANs OF DepArtInG upwarD fRom A sENTENCe rangE: aDJuSTINg THe CrImInaL hIstorY CaTeGoRy WhEn THE gUIdELINEs dO nOT AdeQuAteLy ReFleCt tHe seRiOUsnESS oF thE OFFEnDer'S pAst cONDUCT Or thE LIkElIhooD tHaT hE oR She WILl coMmit OTher cRIMes, uNDEr U.S.S.g. SEC. 4a1.3, p.s., AND aDJustINg The oFFensE leVeL TO taKE iNTO CoNsideraTIOn agGRAVATIng cIrcumstANCES TO a kiND oR A DEGReE NoT cONsiDERed by tHE GUiDElineS, aCCordINg TO u.S.S.G. Sec. 5k2.0, p.s. 8 in EvALUatinG THeSe adjustMENts, THE reVIewIng coUrT DOes "NOT sEarch THe RECORd FOr PErMIsSiBLE REasOns FOr dePartuRe; iNSTeaD, [it] AnaLyZe[S] tHe rEASons aCtuallY GiVEN By tHe dIStRict COUrT." UNiTed STaTES v. MoNTenEgrO-Rojo, 908 F.2D 425, 428 (9TH ciR.1990). HERe, THe dIStRICt CouRt, fOR The mOST pArT, ReLiED on The pSR tO aRTIcUlATe tHe rEasoNS FOr dEParTURE. the PSr lISTED THReE FACtOrS tHaT "WerE kNoWN TO ThE COURt aT THE timE OF tHE oriGINAl SENtEnce anD wOULD HavE jUSTiFIed AN UPWArD DEparTUrE." FIRst, DOnAgHE had bEEn CONvIcTEd Between 1967 AND 1973 oF sEvEral SEX-relatED criMeS Involving MiNoRS. sEcond, aT tHe tiMe OF The OriGiNAL SentENCiNG, hE wAS bEiNG InVEstIgateD for SExUaL mISCOndUCt With hiS NepHew. FinAlly, a 1968 PsYcHIaTrIC evAluaTiON dIAgnOsed DonAGHE aS hAVING a "sexUAl deVIaTiON, hOmoSeXUaliTY WitH PEdOPHILiA." fOr THE upWARd deParTUrE TO Be VALiD, alL thESe FacToRS mUst Be PrOPER baSEs FOR DepArture. id. (If THe disTriCT coUrT "CoNsiDereD Both pROper AnD ImpropEr bASeS foR dePaRTURE, 'wE have NO WaY To deTerMine WHetHeR aNy poRTion Of the sENteNce wAs baSED UpON CONsidERaTion Of tHe imPROPER facTorS,' AND musT theREforE VACaTE tHE SENTencE and rEMand FOr resEnTeNCING") (CITaTion omITted). 9 * As A BASIS fOR itS DepArtURE, thE diStRICT CourT RelieD on Its DeTermiNatioN tHaT dONAGHe'S crImiNal HisTORy CATEGoRy iNaDEqUATelY reFLEcted hIs PAST criMInal cONDucT. The gUidEliNeS do NoT allow pasT SEnteNcES Of IMpRISonmeNt EXceEDING oNe yEAR aND onE MonTh AnD OCCUrRiNG moRE than fIFTEEn YeArs BefORe tHE SentEncing dATE to Be ConSidERED IN deTErMIniNg A CrImInaL HIstoRy CATegory. U.S.S.G. SeC. 4A1.2(E)(1), (3). THe guidElinES Do nOT allOw Any OTHer past SeNtEnCES OccURRiNG MorE tHAN TeN YeArS BEfOre ThE SENteNciNg DAtE to be CONSiDeRed iN dEtErMINiNg a crimINal HiSToRy CAtegorY. U.s.s.g. SEc. 4A1.2(D)(2), (3). DONAghE's misCOnduct OccURred FiFteEn yEaRS PRiOr To the INiTial sentENciNg. 10 HowevEr, the comMenTaRY To sECtIOn 4A1.2 crEAteS AN eXcEpTiON For SeNTEnCES ImPOsED oUtSide these TiME perIOdS wHere ThE cOuRt FinDs "EvIDenCE Of SimIlAr, Or seRiOUs DIssiMILAR, CriMINaL coNdUCt." U.S.s.g. SEc. 4A1.2, cOmmEnT. (N. 8). if The MiSCOnDUct meEts tHiS dESCRIPTiON, "tHe coURt maY cONsidER tHis INFormAtion iN DEteRmining whEtHeR an upWArD dEparTURe IS wArraNTEd." Id. 11 * DonAGhE ArGUES That his ConviCTIoNs FoR ChIld MoleSTAtioN Are nOT siMiLaR tO THe InstANT OFFEnSe OF falSiFyiNG a pASSpOrt ApPlicaTIoN. THe GOVerNMEnt HAS tHE BuRden of demOnsTRaTIng thaT SUCH siMiLaRItY ExISTs. uNitEd StATES V. StArr, 971 F.2d 357, 362 (9TH cIr.1992). THE goVeRNmENT aRgueS THaT tHe CRImeS aRE sImilar beCAuse DONAGhE Was MoTiVAteD TO fALSIfy the PAsSpOrT aPpLIcAtion in Order TO EscAPE An InVEsTIgatioN IntO new cHiLd mOLeStatioN cHArgeS. tHUs, the gOVerNmenT maiNTaiNs, THE crIMEs wEre "InEXTRIcABlY LINkeD." 12 THe GOVerNMenT'S arGUmENT Must fAIL. alTHOUgH ThERe MaY BE A CAuSAL Link bETwEen donAGhE'S TENdeNcY TOWaRD SexUALlY abuSiNg chILdRen And THE fAlSE aPPLIcATion--BEcAUSE Of hIs CrIminAL beHaVIoR, HE WaS iN TroublE AnD wAntEd to FlEE The couNTry--tHis DOeS NOT MakE the Two crimeS SImiLAr. The GoVERNment's rEaSONing DoES nOT cOmPoRT With thiS CoUrT's UNdERStandinG OF SImilAriTy, wHich ReQuiReS A muCh cLoseR lIKeneSs. foR inStAncE, IN StarR, We hElD tHat pOssEsSion Of StoLEN PROpERTy AND EMBEZZlEMenT WeRE sIMIlaR tO Bank RobBery, bEcAUSe AlL Were "CRIMES oF tHEfT." 971 f.2D at 362. we dId NoT rEQuirE "[I]NqUirY into The sPECIFIc fACtS of ThE PrIOr ConViCTiOns." iD. and, IN uniTed stateS V. cOTa-GueRRero, 907 f.2D 87 (9th CIR.1990), WE coNCLuded tHat past COnvICtiONS FOR AssaUlT wITh A DeAdLY weApoN AnD ASSAuLT AND BAtTERY wERe SiMilar tO poSSessIOn OF A fiReaRm bY A FeLOn BecAUsE "thEy ShoW a pRoPEnsITY ToWARD vIOLEnce aND a wILliNGness TO USe FORCe." ID. AT 89. as iN sTArr, WE diD NOt EXamINe ThE pArtICUlAR facts sURRoUNdInG EACH CRiME BUt InsTead cONcEnTrATed ON THEiR GeNeRAl CHaRactERisTIcS. 13 ChiLD MolesTaTIOn And pasSPoRt frauD HaVE NO cHARaCteRISTICs IN COmmon. uNlIkE tHe CRiMES In STARr AnD COTA-GuerReRo, they CANnOT bE cAtEGOrIzED tOgEtHeR as criMES OF FrAuD oR Of violeNcE. THey ArE LinKeD only BY THE SpECIfiC CircUMSTaNCEs OF this CASe, A FActor NoT ViEwed aS reLeVaNt. THE crImeS, thuS, ArE NOt sIMilAr Under The sEcTion 4a1.2 cOmmENTary. 2 14 tHe COmmeNTARY TO sEcTion 4A1.2 alSO CreATES	37 F.3d 477 UNITEDSTATES of America, Plaintiff-Appellee,v.Samuel WilliamDONAGHE, Defendant-Appellant. No. 93-30058. United States Court of Appeals,NinthCircuit. Argued and Submitted Dec. 15, 1993.Decided Sept. 30, 1994.Sheryl Gordon McCloud, Seattle, WA, for defendant-appellant. Sean Connelly, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before: BROWNING, NORRIS, and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether the district court basedits upward departure from the Sentencing Guidelines on properfactors and explained adequately the extent of itsdeparture. 2 * On November 21, 1988,Samuel Donaghe was sentenced formaking a false statement in a passport application in violation of 18U.S.C. Sec. 1542. The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were constitutional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaultingminors--he had been convicted of four such offensespreviously--the court imposed the condition, among others, that Donaghe not associatewith minors without the consent of the Probation Office. 3 On March 8, 1990, thedistrict court revoked Donaghe's probationpursuant to18 U.S.C.Sec.3563 because he hadviolated conditions of probation. Specifically, Donaghe had possessed a firearm, failedto inform the Probation Office ofhisnewemployment, associated with a minor foreign exchange student for whom he was thehost parent, and been convicted in state court ofsolicitation to commit assault and two counts of rape. The district court then sentenced Donaghe to five years imprisonment for the passport offense, againunder pre-Guidelines law.4 On appeal,this court vacated the sentence and held that the Guidelines applied. We remandedfor resentencing, specifying thatthe districtcourt consider United Statesv.White, 925 F.2d 284 (9thCir.1991). United States v. Donaghe, No. 92-30183, 978 F.2d716(Table), 1992 WL 317200, 1992 U.S.App. LEXIS29342 (9th Cir.Sept. 15, 1992). At resentencing on January22, 1993, the district court adopted the Presentence Report ("PSR") that calculated Donaghe's criminal historycategory as 1, his totaloffense level as 4, and the resulting sentencing range as 0-6months. The court also adopted the PSR's recommendation to depart upward and imposed a sentence of five years imprisonment and threeyears supervised release. II 5 When we remanded this case for resentencing under the Guidelines, we explicitly instructed the district court notto depart from the Guidelines basedon Donaghe's conduct during probation. Instead, we stated that "[i]f the districtcourt chooses to depart it must cite factors,available to itat the original sentencing, sufficient to support its decision. It may consider Donaghe's probation-violating conduct for its effect onthe weighing of those departure factors." Donaghe, 1992 WL 317200, at * 1, LEXIS29342, at * 3. 6 We reliedon White to reach this conclusion. In that case,this court held that for resentencingunder 18 U.S.C. Sec. 3565,1 the district court could not use probation conduct to "directly increase a sentence." White, 925 F.2d at 286.The court stated that the district court could depart from the Guidelinesrange, "providedthatfacts warranting departure were available at the initial sentencing." Id. at 287. However, the court also noted that "probation-violating conduct is not completelyirrelevant to sentencing under Sec. 3565(b)2.... [T]he sentencing court can considerthe conduct in determining whether to depart from the initial guideline range.... In other words, thecourtcannot make additional factual findings to justify a departure, but canreconsider its original decision not to depart inlight of the defendant's subsequent actions." Id. 7 The Guidelinesprovide two means of departing upward from a sentence range: adjusting the criminal historycategory when the Guidelines do not adequately reflect the seriousness of the offender's past conduct or the likelihood that he or she will commit other crimes, under U.S.S.G.Sec. 4A1.3, p.s., and adjusting the offense level totakeinto consideration aggravating circumstances to a kind ora degree notconsidered by the Guidelines, accordingto U.S.S.G.Sec. 5K2.0,p.s. 8 In evaluating these adjustments, the reviewing court does "not search the record for permissible reasons for departure; instead, [it] analyze[s] thereasons actually given by the district court." United States v. Montenegro-Rojo, 908 F.2d 425, 428(9th Cir.1990). Here, the district court, forthe most part, relied on the PSRto articulate the reasons for departure. The PSR listed three factors that "were known to the Court at the time of the original sentence and would have justified an upwarddeparture." First, Donaghe had been convicted between1967and 1973 of several sex-related crimesinvolving minors. Second, atthe time of theoriginal sentencing, he was being investigated for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a "sexual deviation, homosexuality withpedophilia." For the upward departure to be valid, all these factors must be proper basesfor departure. Id. (If thedistrict court "considered both proper and improper bases fordeparture, 'we have no way to determine whether any portion of the sentence was based upon consideration of the improperfactors,' and musttherefore vacate the sentence and remand for resentencing")(citation omitted). 9 * As a basis forits departure, the districtcourt relied on its determination that Donaghe'scriminal history category inadequatelyreflected his past criminal conduct. The Guidelines do not allow past sentences of imprisonment exceedingone year and one month and occurring more thanfifteen years before the sentencing date to be considered indetermining a criminal history category. U.S.S.G. Sec. 4A1.2(e)(1), (3). The Guidelines do not allowany other pastsentences occurring more than ten years before the sentencing dateto be considered in determining a criminal history category. U.S.S.G.Sec. 4A1.2(d)(2), (3). Donaghe's misconduct occurredfifteen years prior to the initial sentencing. 10However, the commentary to section 4A1.2 creates an exceptionfor sentences imposed outside these time periods where the court finds "evidenceof similar, orserious dissimilar, criminalconduct." U.S.S.G. Sec. 4A1.2, comment. (n. 8). If the misconduct meets thisdescription, "the court mayconsider this information in determining whether an upward departure is warranted." Id. 11 * Donaghe arguesthat his convictions for childmolestation are not similar to the instant offense of falsifying a passportapplication. The government has the burden ofdemonstrating that such similarity exists. UnitedStates v. Starr, 971 F.2d 357, 362 (9thCir.1992). The government argues that the crimesare similar because Donaghewas motivated to falsify thepassport application in order to escape an investigation into new child molestation charges. Thus, the government maintains, the crimes were "inextricably linked." 12 The government's argument must fail. Although there may be a causal link betweenDonaghe'stendency toward sexually abusing children and the false application--because of his criminal behavior, he was in trouble and wantedto flee the country--this does not make the two crimes similar. The government's reasoning does notcomport with this court's understanding of similarity, which requiresa much closer likeness. For instance, in Starr, we held thatpossessionof stolen property andembezzlementwere similar to bank robbery, becauseall were "crimes of theft." 971 F.2d at 362. We did not require "[i]nquiry into the specific facts of the prior convictions."Id. And, in United States v. Cota-Guerrero, 907 F.2d 87 (9th Cir.1990), we concluded that past convictions for assaultwith a deadlyweaponand assaultand battery weresimilar to possession of a firearm by a felon because "theyshow a propensity toward violence anda willingness touse force." Id. at 89. As in Starr, we did not examine theparticular facts surrounding each crime but instead concentrated on their general characteristics. 13 Child molestation and passport fraud have no characteristicsin common. Unlike the crimes inStarr and Cota-Guerrero, they cannot be categorized togetheras crimes of fraud or of violence. They are linkedonlyby the specific circumstances of this case, a factor not viewedas relevant. Thecrimes, thus, are not similar under the section 4A1.2 commentary. 2 14 Thecommentary to section 4A1.2 also creates	37 _F.3d_ 477 UNITED _STATES_ _of_ America, Plaintiff-Appellee,v.Samuel William _DONAGHE,_ Defendant-Appellant. No. 93-30058. United States Court _of_ _Appeals,Ninth_ Circuit. Argued _and_ Submitted Dec. _15,_ 1993.Decided Sept. 30, _1994._ Sheryl Gordon McCloud, _Seattle,_ WA, for defendant-appellant. Sean _Connelly,_ U.S. Dept. _of_ Justice, Washington, DC, for _plaintiff-appellee._ Appeal from the United States District Court for the Western District of _Washington._ _Before:_ BROWNING, NORRIS, _and_ O'SCANNLAIN, Circuit _Judges._ O'SCANNLAIN, _Circuit_ _Judge:_ 1 We _must_ decide whether the _district_ court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of _its_ departure. 2 * On November _21,_ 1988, Samuel Donaghe was _sentenced_ for making a _false_ statement _in_ a _passport_ application in violation of 18 _U.S.C._ Sec. 1542. The district _court_ _did_ not _apply_ the Sentencing _Guidelines,_ _because_ _it_ was unclear at that time whether they _were_ constitutional, and sentenced him _to_ three _years_ of _probation._ Because _Donaghe_ had _a_ history of sexually assaulting minors--he had been convicted of four such offenses previously--the court imposed the condition, _among_ others, that Donaghe _not_ associate with minors _without_ the consent of the Probation Office. _3_ On March 8, 1990, the district court _revoked_ Donaghe's probation _pursuant_ _to_ 18 U.S.C. Sec. 3563 because he had _violated_ conditions of _probation._ Specifically, Donaghe had _possessed_ a firearm, _failed_ to _inform_ the Probation Office of his _new_ employment, associated with a minor _foreign_ exchange student for _whom_ he was the host _parent,_ and been convicted in state _court_ _of_ solicitation _to_ commit assault and two counts of rape. The district _court_ then sentenced Donaghe to _five_ years imprisonment _for_ the passport offense, again under _pre-Guidelines_ law. 4 On _appeal,_ this court _vacated_ _the_ sentence and held that _the_ Guidelines applied. We _remanded_ for _resentencing,_ specifying that _the_ district _court_ consider United States v. White, 925 F.2d 284 (9th Cir.1991). _United_ _States_ v. Donaghe, No. _92-30183,_ 978 F.2d 716 (Table), _1992_ WL 317200, _1992_ _U.S.App._ LEXIS _29342_ _(9th_ Cir. Sept. 15, 1992). _At_ resentencing on January _22,_ 1993, the _district_ court adopted the _Presentence_ Report ("PSR") that calculated Donaghe's criminal history category as 1, his total offense _level_ as _4,_ and the _resulting_ sentencing range as 0-6 _months._ _The_ court also _adopted_ the PSR's _recommendation_ to depart upward and imposed a sentence of five _years_ imprisonment and three years supervised release. II 5 When _we_ remanded this case for resentencing under the Guidelines, _we_ explicitly instructed the _district_ court _not_ to _depart_ from the Guidelines _based_ _on_ Donaghe's conduct during _probation._ Instead, we stated that "[i]f the district _court_ chooses to depart it _must_ cite factors, available to _it_ at the original sentencing, sufficient to support its decision. _It_ may _consider_ _Donaghe's_ probation-violating _conduct_ for its effect on the weighing _of_ those departure _factors."_ Donaghe, _1992_ WL 317200, at __ 1, _LEXIS_ _29342,_ at 3. 6 We relied on White to reach _this_ conclusion. In that case, this _court_ held that _for_ resentencing under 18 _U.S.C._ _Sec._ _3565,1_ the _district_ court could not use probation conduct to _"directly_ increase _a_ _sentence."_ White, 925 F.2d at _286._ The court stated that the district _court_ could depart from the Guidelines range, "provided that facts warranting _departure_ _were_ _available_ at _the_ _initial_ sentencing." Id. at 287. However, _the_ _court_ also noted that _"probation-violating_ conduct is not _completely_ _irrelevant_ to sentencing under Sec. 3565(b)2.... _[T]he_ sentencing court can _consider_ the conduct in determining _whether_ _to_ depart from the initial _guideline_ range.... In _other_ _words,_ the _court_ cannot _make_ additional factual findings to justify a _departure,_ but can reconsider its _original_ decision not to depart in light of the defendant's subsequent _actions."_ Id. 7 The Guidelines _provide_ two means of departing _upward_ _from_ a sentence range: adjusting the criminal history _category_ _when_ _the_ Guidelines do not adequately _reflect_ the seriousness of the offender's past conduct _or_ the _likelihood_ that he or _she_ will commit other crimes, under U.S.S.G. Sec. 4A1.3, p.s., _and_ adjusting the _offense_ level _to_ take into consideration _aggravating_ _circumstances_ _to_ _a_ kind or a degree not considered by the Guidelines, according to U.S.S.G. Sec. 5K2.0, p.s. _8_ In evaluating these adjustments, the _reviewing_ _court_ _does_ "not search _the_ record _for_ permissible reasons for departure; instead, [it] analyze[s] the reasons actually given by the _district_ court." United States v. Montenegro-Rojo, _908_ F.2d 425, 428 (9th Cir.1990). Here, the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed _three_ factors _that_ "were known _to_ _the_ _Court_ at _the_ _time_ of the original _sentence_ and would have justified an upward departure." First, Donaghe _had_ been convicted between 1967 and 1973 of several sex-related crimes involving minors. _Second,_ at the time of _the_ original sentencing, he was being _investigated_ for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe _as_ having _a_ "sexual deviation, homosexuality with pedophilia." _For_ the upward departure _to_ be valid, all _these_ factors must be _proper_ bases _for_ departure. Id. _(If_ _the_ district _court_ "considered both proper _and_ improper bases for departure, 'we _have_ no way _to_ determine whether _any_ portion _of_ the sentence _was_ _based_ upon consideration of the improper _factors,'_ and must _therefore_ vacate the sentence and _remand_ for resentencing") (citation _omitted)._ _9_ * As a basis for its _departure,_ _the_ district court relied on _its_ _determination_ _that_ Donaghe's criminal _history_ category inadequately reflected his past criminal _conduct._ _The_ Guidelines do _not_ _allow_ past sentences of _imprisonment_ exceeding one year and one month and occurring more than _fifteen_ years _before_ the sentencing date to be considered in determining a criminal history _category._ U.S.S.G. _Sec._ 4A1.2(e)(1), (3). The Guidelines _do_ _not_ allow any other past sentences occurring more than ten years before the sentencing _date_ to _be_ _considered_ in determining a _criminal_ history category. _U.S.S.G._ Sec. 4A1.2(d)(2), (3). _Donaghe's_ _misconduct_ occurred fifteen years _prior_ to _the_ initial sentencing. 10 However, _the_ _commentary_ to section 4A1.2 creates an exception for _sentences_ _imposed_ _outside_ these time periods where _the_ court finds "evidence of similar, or serious dissimilar, _criminal_ conduct." U.S.S.G. _Sec._ 4A1.2, comment. (n. 8). If the misconduct meets _this_ _description,_ "the court _may_ _consider_ this information in determining _whether_ _an_ upward departure is warranted." Id. _11_ * Donaghe argues that his convictions for child molestation are not similar _to_ the instant offense of falsifying _a_ _passport_ application. The government has the burden of demonstrating that _such_ similarity exists. _United_ _States_ _v._ _Starr,_ 971 F.2d 357, _362_ (9th _Cir.1992)._ The government argues that the _crimes_ are similar because Donaghe was motivated to falsify the passport application _in_ order _to_ escape an investigation _into_ _new_ child _molestation_ charges. _Thus,_ the government maintains, the crimes were "inextricably linked." _12_ _The_ _government's_ argument must _fail._ Although there may be a causal link between _Donaghe's_ tendency toward sexually abusing children and the false application--because of _his_ _criminal_ _behavior,_ _he_ was in trouble and wanted _to_ flee the country--this _does_ not make the two crimes similar. _The_ government's reasoning does not _comport_ with this court's understanding of similarity, which requires _a_ much closer likeness. _For_ instance, _in_ Starr, we _held_ that possession _of_ stolen property and embezzlement were similar to bank _robbery,_ because all were _"crimes_ of theft." 971 _F.2d_ at 362. We did not _require_ "[i]nquiry into the specific facts _of_ the prior convictions." Id. And, _in_ United _States_ v. Cota-Guerrero, 907 F.2d 87 _(9th_ Cir.1990), we concluded that past convictions for assault with a deadly weapon _and_ assault _and_ battery were similar to possession of _a_ firearm by a felon because "they _show_ a propensity toward violence and a willingness to use force." Id. at 89. As in Starr, we _did_ not examine the particular facts _surrounding_ _each_ crime _but_ instead _concentrated_ on their _general_ characteristics. _13_ Child _molestation_ and passport fraud have _no_ characteristics in common. Unlike _the_ _crimes_ in Starr and Cota-Guerrero, they _cannot_ be categorized _together_ as _crimes_ of fraud or of violence. _They_ are linked only _by_ the _specific_ circumstances of this case, a factor not viewed as relevant. _The_ crimes, thus, are not _similar_ under _the_ section 4A1.2 commentary. _2_ 14 The commentary to section 4A1.2 also creates
Case: 11-41328 Document: 00512042106 Page: 1 Date Filed: 11/02/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 2, 2012 No. 11-41328 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ARTEMIO LOMAS Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-770-2 Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* A jury convicted Artemio Lomas of one count of conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and two counts of possession with intent to distribute 100 kilograms or more of marijuana in violation of § 841(a)(1), (b)(1)(B). The district court sentenced Lomas to three concurrent terms of 151 months in prison. Lomas argues for the first time on appeal that the district * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-41328 Document: 00512042106 Page: 2 Date Filed: 11/02/2012 No. 11-41328 court erred in calculating the drug quantity attributable to him under the Sentencing Guidelines by using the gross weight rather than the net weight. Because Lomas did not object in the district court to the drug quantity attributed to him, our review is for plain error. United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011); United States v. Sparks, 2 F.3d 574, 589 (5th Cir. 1993). Simply put, Lomas has not demonstrated that the court used the gross weight rather than the net weight. Neither the trial testimony nor the presentence report (PSR) referenced either gross weight or net weight. Furthermore, the district court was entitled to rely on the jury’s finding that Lomas conspired to possess with intent to distribute 1000 kilograms or more of marijuana and Lomas’s admission that the facts in the PSR were correct. See United States v. Arnold, 416 F.3d 349, 362 (5th Cir. 2005); United States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). In light of the trial testimony, the jury’s finding, and Lomas’s admission, Lomas has not show that the district court committed any error, and certainly not clear or obvious error, when it relied on the drug quantity indicated in the PSR. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). AFFIRMED. 2	case : 11 - 41328 document : 00512042106 page : 1 date filed : 11 / 02 / 2012 in florida united states court of appeals for the fifth circuit united states court of appeals fifth circuit filed january 2, 2012 no. 11 - 41328 summary calendar lyle w. cayce clerk united states of america plaintiff - appellee v. artemio lomas defendant - appellant appeal from the united states district court for the southern district of texas usdc no. 5 : 11 - cr - 770 - 2 before jones, dennis, and haynes, circuit court. per curiam : * a jury convicted artemio lomas of one count of conspiracy to possess with intent to distribute 1, 000 miles or more of marijuana in violation of 21 u. s. c. § § 846 and 841 ( a ) ( 1 ), ( b ) ( 1 ) ( a ) and two counts of possession with intent to distribute 100 kilograms or more of marijuana in violation of § 841 ( a ) ( 1 ), ( b ) ( 1 ) ( b ). the district court sentenced lomas to three concurrent terms of 151 months in prison. lomas argues for the first time on appeal that the district * pursuant to 5th cir. r. 47. 5, the court has observed that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th cir. r. 47. 5. 4. case : 11 - 41328 document : 00512042106 page : original date filed : 11 / 02 / 2012 no. 11 - 41328 court erred in calculating the drug quantity attributable to him under the sentencing guidelines by using the gross weight less than the net weight. because lomas did not object in the district court to the drug quantity attributed to him, our review is for plain error. united states v. stevens, 657 f. 3d 280, 284 ( 5th cir. 2011 ) ; united states v. sparks, 2 f. 3d 574, 589 ( 5th cir. 1993 ). simply put, lomas has not demonstrated that the court used the gross weight rather than the net weight. neither the joint testimony nor the presentence report ( psr ) referenced either gross weight or net weight. furthermore, the district court was entitled to rely on the jury ’ summary finding that lomas conspired to possess with intent to distribute 1000 kilograms or more of marijuana and lomas ’ s admission that the facts in the psr were correct. see united states v. arnold, 416 f. 3d 349, 362 ( 5th cir. 2005 ) ; united states v. ramirez, 557 f. 3d 200, 204 ( 5th cir. 2009 ). in light of the trial testimony, the jury ’ s finding, and lomas ’ s admission, lomas has not show that the district court committed any error, and certainly not clear or obvious error, when it relied on the drug quantity indicated in the psr. see united states v. rodriguez, 602 f. 3d 346, 363 ( 5th cir. 2010 ). affirmed. 2	Case: 11 - 41328 Document: 00512042106 Page: 1 Date Filed: 11 / 02 / 2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals FkfRh Circuit FILED November 2, 2012 No. 11 - 41328 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA Olaintifr - Appellee v. ARTEMIO LOMAS Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5: 11 - CR - 770 - 2 Before JONES, XENJIS, and HAYNES, Circuit Judges. PER CURIAM: * A jury convicted Artemio Lomas of one count of conspiracy to possess with intent to distribute 1, 000 kilorramA or more of marijuana in violation of 21 U. S. C. § § 846 and 841 (a) (1 ), (b) (1) (A) and two counts of possession with intent to distribute 100 kilograms or more of marijuana in violation of § 841 (a) (1 ), (b) (1) (B ). The district court senyeJced Lomas to three conc7rrenh terms of 151 months in prison. Lomas argues for the first time on appeal that the district * Pursuant to 5TH CIR. R. 47. 5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47. 5. 4. Case: 11 - 41328 Document: 00512042106 Page: 2 Date Filed: 11 / 02 / 2012 No. 11 - 41328 court erred in calculating the drug quantity attributable to him under the Sentencing Buidelin#s by using the gross weight rather than the net weight. Because Lomas did not object in the district court to the drug quantity attributed to him, our review is for plain error. United States v. Conn, 657 F. 3d 280, 284 (5th Cir. 2011 ); United States v. Sparks, 2 F. 3d 574, 589 (5th Cir. 1993 ). Simply put, Lomas has not demobsgrated that the court used the gross weight rather than the net weight. jeithe# the trial testimony nor the presentence report (PSR) referenced either gross weight or net weight. Furthermore, the district court was entitled to rely on the jury ’ s finding that Lomas conspired to possess with intent to distribute 1000 kilograms or more of marijuana and Lomas ’ s admission that the facts in the PSR were correct. See United States v. Arnold, 416 F. 3d 349, 362 (5th Cir. 2005 ); United States v. Ramirez, 557 F. 3d 200, 204 (5th Cir. 2009 ). In light of the trial testimony, the jury ’ s finding, and Lomas ’ s admission, Lomas has not show that the district court committed any error, and certainly not clDQr or obvious error, when it relied on the drug quantity indicated in the PSR. See United States v. Rodriguez, 602 F. 3d 346, 363 (5th Cir. 2010 ). AFFIRMED. 2	Case: 11-41328 Document: 00512042106 Page: 1 Date Filed: 11/02/2012 IN THE UNITED STATES COURT APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 2, 2012 No. 11-41328 Calendar Lyle Cayce Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ARTEMIO LOMAS Defendant-Appellant Appeal from the United States Court for the District Texas USDC No. 5:11-CR-770-2 Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* A jury convicted Lomas of one count of conspiracy to possess with intent to 1,000 kilograms or more of in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and two counts of possession with intent to distribute 100 kilograms more marijuana in violation of § 841(a)(1), (b)(1)(B). The district court sentenced Lomas to concurrent terms of 151 months in prison. Lomas argues the time on that the district * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not published and is not precedent under the limited circumstances forth in 5TH CIR. R. 47.5.4. Case: 11-41328 00512042106 Page: 2 Date Filed: 11/02/2012 No. 11-41328 court erred in calculating the drug to him under the Sentencing Guidelines by using the weight rather than net weight. Because Lomas did not object in the district court to the drug quantity attributed to him, our review is for plain error. United v. Conn, F.3d 280, 284 (5th Cir. 2011); United States v. Sparks, 2 574, 589 (5th Cir. 1993). Simply put, Lomas has not demonstrated that the court used the gross weight rather the net weight. Neither the trial testimony the presentence report (PSR) referenced gross weight or net weight. Furthermore, the district court was entitled to rely on the jury’s finding that to possess with intent to distribute 1000 or more of and Lomas’s admission that the facts in the were correct. See United States v. 416 F.3d 349, 362 (5th Cir. 2005); United States v. Ramirez, 557 F.3d 204 (5th Cir. In light of the trial testimony, the jury’s finding, and Lomas’s admission, Lomas has not that the district court committed any error, and certainly not clear or obvious error, when it relied on the indicated in the PSR. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). 2	caSe: 11-41328 dOCUmEnT: 00512042106 PagE: 1 Date FilEd: 11/02/2012 IN ThE UNIteD sTAtes COURT oF appEALS fOr The fIfTH CiRcuit UNItED StateS Court oF ApPEaLS fiFth CirCUIT FIlEd noVembER 2, 2012 No. 11-41328 sumMaRY CalENdAR lyLe W. cayCE ClErK UNiteD staTes oF ameRIca PlainTiff-apPeLlee V. Artemio lomAS DEFENdaNt-ApPeLLaNT APpeaL fROm ThE uNITEd sTateS DiStricT CouRt FOr the SoUThERn DIstrICT OF tEXAs USDC NO. 5:11-Cr-770-2 bEForE JOnEs, dEnnis, AnD haynES, cIRcUit juDGEs. per CUrIaM:* A JURy CoNVicTed ArteMIO LOmas of ONE COunT OF CoNsPIRAcY To pOsSess With INTeNT tO dISTribUte 1,000 KIloGraMs Or mOre of MARIJuana in VIOlAtioN oF 21 U.S.C. §§ 846 and 841(A)(1), (B)(1)(a) ANd tWO couNTS oF PosSesSiON WiTh INTENt tO dIStRIbUte 100 KilOgRAms or mORe OF MarijUaNa in VIoLaTIoN OF § 841(A)(1), (B)(1)(B). The DIsTRict CoURt SEnTENCED LoMAS TO THRee CONcuRrENT TERMS of 151 MoNThS IN PrIsON. lOmAS ARguES FOr The FirST time oN APpeAl ThAt tHE diSTrIct * PURsuANT TO 5TH CiR. r. 47.5, tHe COUrT hAs deTErmiNed that this oPINIOn ShouLd NoT bE PubLiSHEd AnD IS not PReCedENT exCePT UNder The lImItED CircUMsTancES seT foRTH in 5th CIr. r. 47.5.4. cAsE: 11-41328 dOCUMEnt: 00512042106 pAge: 2 dAte fileD: 11/02/2012 no. 11-41328 couRt ERrED iN CalculatIng THE DrUg qUanTitY aTtRiButAblE tO hiM UNder The SentENcInG GuIdelInES BY uSiNg The GroSS weiGHT RaTHEr tHAN the Net WeighT. beCAUSE LOMAS DID NOT oBJEct IN THE DIstRiCt CoURt TO THe DRug qUAnTITy aTtrIbutEd TO HiM, ouR rEVIEW Is for PLaiN ErrOR. UNIted StATES v. COnn, 657 f.3d 280, 284 (5Th cir. 2011); uNiTED stAtes v. SParKS, 2 F.3d 574, 589 (5Th Cir. 1993). SIMpLy PuT, lOMAs HAS Not deMOnStRatED tHAT thE cOuRT usED the gROSs WEiGht RATHer thaN thE nEt weiGht. NEitHER THE TriAL tEsTimOnY Nor ThE pReSENtencE REPORT (Psr) REfeReNCED eitHER GrosS WEIght Or nET wEiGhT. fuRtHerMOre, thE diSTRict Court wAS ENtITlED To RelY ON tHE JUrY’S fINdiNg ThAt LoMAS CONspirEd tO PoSsESS wiTH InTeNt TO DIsTrIBUTe 1000 KIloGRaMS OR More of mArIJuaNa AND LomAs’s aDMISSIoN thAt thE facTS iN ThE psR WErE COrREct. sEe uNIted STAtEs v. ArnOld, 416 f.3D 349, 362 (5Th CIr. 2005); UNIteD states V. RaMireZ, 557 F.3D 200, 204 (5tH CIr. 2009). IN liGHt oF the TriAl TEsTImOny, ThE jUry’s findinG, ANd LoMAS’S AdMIsSIoN, loMas Has not Show thAT THE DIstRICt cOURt ComMItteD Any eRRoR, AND cErTAiNLY NOT cLEar oR oBvIOus ERrOr, when IT rELIEd ON tHe dRuG qUanTITy INDicAtEd in The Psr. SeE UniTED STaTES V. rODRIguEZ, 602 f.3d 346, 363 (5th CIR. 2010). aFfirMEd. 2	Case:11-41328 Document: 00512042106 Page: 1Date Filed:11/02/2012 IN THE UNITEDSTATES COURT OF APPEALS FORTHE FIFTH CIRCUIT United States Court of AppealsFifth Circuit FILED November 2, 2012 No. 11-41328 Summary Calendar Lyle W. Cayce ClerkUNITED STATES OF AMERICA Plaintiff-Appellee v. ARTEMIO LOMASDefendant-Appellant Appeal from the United States District Court for the SouthernDistrict of TexasUSDC No. 5:11-CR-770-2 BeforeJONES, DENNIS, and HAYNES, Circuit Judges.PER CURIAM:* A jury convicted Artemio Lomas of one count of conspiracy to possesswith intent to distribute 1,000 kilograms or more of marijuana inviolation of21U.S.C.§§ 846 and 841(a)(1), (b)(1)(A) and two counts of possession withintent to distribute 100 kilograms or moreof marijuana in violation of§ 841(a)(1), (b)(1)(B). The district court sentenced Lomas to three concurrent terms of 151 months inprison. Lomas argues for thefirst time onappeal that the district * Pursuant to5TH CIR. R. 47.5,the court has determined that this opinion shouldnotbe published and is not precedent except underthe limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-41328Document: 00512042106 Page: 2Date Filed: 11/02/2012 No. 11-41328 court erred incalculating the drug quantity attributable to him under the Sentencing Guidelines by using the gross weight rather than thenet weight. BecauseLomas did not object in the district court tothe drug quantity attributedto him, our review isfor plain error. United States v. Conn, 657F.3d280, 284 (5th Cir. 2011); United States v. Sparks,2 F.3d 574, 589 (5th Cir. 1993). Simply put, Lomashasnot demonstratedthat the court used the gross weight ratherthan the net weight. Neither the trial testimony nor the presentence report (PSR) referenced either gross weight or net weight. Furthermore, the district court was entitled torely on the jury’s findingthat Lomas conspired to possess with intent to distribute 1000 kilograms or moreof marijuana and Lomas’s admission that the factsinthe PSR were correct. See UnitedStates v. Arnold,416 F.3d 349, 362 (5th Cir.2005); United States v. Ramirez, 557 F.3d 200,204 (5th Cir. 2009). In light of the trial testimony, the jury’s finding, and Lomas’s admission,Lomas hasnot showthat the district court committed any error, and certainly not clear or obvious error, when it relied on the drug quantity indicated in the PSR. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). AFFIRMED. 2	Case: 11-41328 Document: 00512042106 Page: 1 Date Filed: 11/02/2012 IN THE _UNITED_ STATES COURT _OF_ APPEALS FOR THE FIFTH _CIRCUIT_ United _States_ Court of Appeals _Fifth_ _Circuit_ FILED November 2, 2012 _No._ 11-41328 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF _AMERICA_ Plaintiff-Appellee v. ARTEMIO LOMAS Defendant-Appellant Appeal from _the_ United _States_ District Court for the Southern District of _Texas_ USDC No. 5:11-CR-770-2 _Before_ JONES, _DENNIS,_ and HAYNES, _Circuit_ Judges. PER CURIAM:* A jury convicted Artemio Lomas of one _count_ _of_ _conspiracy_ _to_ possess with intent to distribute 1,000 kilograms or more _of_ _marijuana_ in violation _of_ 21 U.S.C. §§ 846 _and_ 841(a)(1), (b)(1)(A) _and_ two counts of possession _with_ intent to distribute 100 kilograms or more of marijuana in _violation_ of § _841(a)(1),_ (b)(1)(B). The _district_ court sentenced Lomas to three concurrent _terms_ of 151 months in prison. Lomas argues for the first time on appeal that _the_ district _*_ Pursuant to _5TH_ CIR. R. _47.5,_ the court has determined that _this_ opinion should not be published and is not precedent _except_ under the limited circumstances set forth in _5TH_ CIR. R. 47.5.4. Case: 11-41328 Document: 00512042106 Page: 2 Date Filed: 11/02/2012 No. 11-41328 court erred in _calculating_ the drug quantity attributable _to_ him under _the_ Sentencing Guidelines by using _the_ _gross_ weight rather than _the_ net weight. Because _Lomas_ did not _object_ _in_ _the_ _district_ court to the drug quantity _attributed_ to _him,_ our review is _for_ plain error. United States v. Conn, _657_ F.3d _280,_ 284 _(5th_ Cir. _2011);_ United States v. Sparks, 2 F.3d _574,_ 589 (5th Cir. 1993). Simply put, Lomas _has_ not demonstrated that the _court_ _used_ the _gross_ weight rather than the net _weight._ Neither the trial testimony nor _the_ presentence report (PSR) referenced either gross _weight_ or net weight. Furthermore, the _district_ _court_ was entitled _to_ _rely_ on the jury’s finding that _Lomas_ conspired to possess with intent to distribute _1000_ kilograms or more _of_ marijuana and Lomas’s admission that the facts in _the_ PSR were correct. See United States _v._ Arnold, 416 F.3d _349,_ 362 (5th _Cir._ 2005); _United_ States v. Ramirez, 557 F.3d 200, 204 _(5th_ Cir. 2009). _In_ light of the _trial_ testimony, the jury’s finding, and Lomas’s admission, Lomas has not _show_ that the district court committed any error, _and_ _certainly_ _not_ clear or obvious _error,_ when it relied on _the_ drug quantity indicated in the PSR. See United States _v._ Rodriguez, 602 F.3d 346, _363_ (5th Cir. 2010). _AFFIRMED._ 2
978 A.2d 6 (2009) 2009 VT 48 STATE of Vermont v. Timothy MUMLEY. No. 08-114. Supreme Court of Vermont. May 8, 2009. 7 Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee. Edward M. Kenney, South Burlington, for Defendant-Appellant. 8 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ¶ 1. SKOGLUND, J. Defendant Timothy Mumley appeals from a jury conviction for attempted kidnapping in violation of 13 V.S.A. §§ 9, 2405(a)(1)(D). Defendant argues that the Chittenden District Court committed reversible error when it denied his motion to suppress statements he made to police while in custody. We agree, and reverse. ¶ 2. Defendant's conviction arises from an incident that occurred on October 20, 2006. On that date, defendant allegedly tried to pull a woman into his pickup truck while she was pushing her child in a stroller on a Winooski sidewalk. Defendant was arrested and taken to the Winooski Police Department, where he was questioned by a detective in an interrogation room. The entire interrogation was video-recorded. ¶ 3. Prior to questioning defendant, the detective warned defendant of his privilege against self-incrimination and his right to counsel as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 13 V.S.A. § 5234. He read defendant his warnings one-by-one, from a Miranda-waiver form. The form listed each of the Miranda rights followed by the question "Do you understand?" and a blank space for a reply. After reciting each warning to defendant, the detective asked defendant whether he understood. Defendant replied "yes" to each of these questions. The detective recorded defendant's replies on the form. ¶ 4. Underneath the Miranda-rights portion of the form was the title "Waiver," and the following paragraph: I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive them and talk with you now. I understand that I am waiving my right to be represented by an attorney, to talk with an attorney before questioning and to have an attorney present during questioning. Under this paragraph was a space for the date and time and a space for a signature or "time of taping." ¶ 5. The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the following: "I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive ...." The detective did not provide defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. The following exchange then occurred: Detective: Do you want to talk to me? Defendant: What about? Detective: Ah, what, ah ... you can talk to me, you can tell me to pound sand. You know, those are your rights, okay? Now, it doesn't affect them one way or the other. What I'm concerned about is that, I want to make sure, you know, what happened tonight, you be given an opportunity to, you know, explain your actions which will happen in a court of law. But this is also an opportunity for you, if you want it, you can write down a sworn statement and apologize for what happened tonight. That's something. It's your choice you know. Defendant: Which is what? Detective: Do you understand what is going on here at all? Defendant: No, no, I don't. Detective: Well, as I stated over at your apartment, you're under arrest for attempted kidnapping. Defendant: Okay. 9 ¶ 6. The detective made no more attempts to secure a waiver of defendant's rights to silence and to an attorney. Eventually, defendant answered some of the detective's questions. ¶ 7. Defendant sought to suppress the statements he made during the interrogation. In his motion to suppress, defendant argued that he did not waive his rights, or, in the alternative, that the waiver was invalid under Miranda. Defendant also argued that the detective violated his rights by failing to secure a recorded waiver as required by 13 V.S.A. § 5237. Section 5237 provides that a person who has been informed of his or her right to counsel as required by § 5234 may waive those rights: in writing, or by other record, ... if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person's age, education, and familiarity with the English language, and the complexity of the crime involved. 13 V.S.A. § 5237. The State responded, arguing that, considering the totality of the circumstances, defendant knowingly and intelligently waived his Miranda rights, and that defendant's waiver was valid under § 5237 because it was video-recorded. ¶ 8. The district court denied defendant's motion. It concluded that "assuming the court finds that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his Miranda rights and the consequences of waiving them," defendant made a valid implicit waiver of his Miranda rights. The court then concluded that because this waiver was recorded on video it was valid under § 5237. ¶ 9. At trial, the complainant testified that defendant tried to pull her into his black pickup truck while she was pushing her child in a stroller on a sidewalk, returning home from the post office. She further testified about the encounter as follows. As the complainant walked north on Weaver Street, defendant started following her in his truck, making rude, sexually suggestive remarks, and asking her if she wanted a ride. She was walking northward on the west side of Weaver Street, and defendant was travelling northward in the wrong lane of traffic, weaving around parked cars, so that he was in the lane of traffic adjacent to her. During this portion of the encounter the complainant threatened to call the police. At some point, defendant proceeded ahead of her to the intersection of Weaver and Union Streets and turned left onto Union Street. She proceeded to the same intersection, crossed Union Street, and turned left, walking on the north side of Union Street. While the complainant was walking on Union Street, defendant, who was ahead of her, turned around in a driveway, drove back toward her, then crossed into the wrong lane of traffic again, stopped the truck, and attempted to grab her and pull her into his pickup. Defendant drove off when the driver of a green Ford in the oncoming lane of Union Street honked the horn twice. ¶ 10. One eyewitness testified for the State. The witness testified that while traveling north on Weaver Street in her green Ford Taurus, she noticed that traffic had stopped because of a dark pickup truck that had stopped in the middle of the road two cars in front of her. She testified that the man in the pickup truck was speaking with someone on the sidewalk. According to the witness, after she honked her horn twice, the truck "took off," and the witness then observed the complainant, "visibly upset ... motoring towards the 10 end of [Weaver] [S]treet." In contrast to the complainant's testimony, the witness testified that the truck did not turn left on Union Street, but rather either continued straight or turned right, and that the witness did not turn left on Union Street. The witness testified that after observing the encounter she continued straight on Weaver Street. ¶ 11. The arresting officer and a detective also testified for the State. The officer testified that defendant's truck and license plate number matched the description given by the complainant. The detective testified that the complainant correctly identified defendant in a photo lineup. The detective also testified that, during the interrogation at the police station, defendant admitted: (1) that he had seen the complainant; (2) that he had driven by her several times; (3) that the complainant spoke to him; (4) that the complainant told defendant that she was calling the police; and (5) that, when asked why the complainant would threaten to call the police, defendant replied that he did not know. ¶ 12. At trial, the defense argued that the complainant's story was improbable and that neither defendant nor the eyewitness made a left on Union Street toward the site of the alleged attempted kidnapping. ¶ 13. On appeal, defendant argues that he did not make a valid waiver of his Miranda rights because: (a) silence in response to a request to waive does not constitute waiver; and (b) the court failed to properly apply the totality-of-the-circumstances approach articulated in State v. Malinowski, 148 Vt. 517, 518-20, 536 A.2d 921, 922-23 (1987). Defendant also argues that the waiver was invalid under § 5237 because: (a) that section requires waivers to be affirmative, express, and recorded; and (b) the trial court failed to consider the factors set forth in the statute. Finally, defendant makes several arguments regarding the court's refusal to viewor to allow the jury to viewthe vehicle defendant was driving at the scene of the alleged crime. We agree with defendant that the court erred in not evaluating	978 a. 2d 6 ( 2009 ) 2009 vt 48 state of vermont v. timothy mumley. no. 08 - 114. supreme court of vermont. may 8, 2009. * 7 thomas donovan, jr., chittenden county state ' s attorney, and pamela hall johnson, deputy state ' s attorney, burlington, for plaintiff - appellee. timothy m. kenney, south burlington, for defendant - appellant. * 8 present : reiber, c. j., dooley, johnson, murphy versus burgess, jj. ¶ 1. skoglund, j. defendant timothy mumley appeals from a jury conviction for attempted kidnapping in violation of 13 v. s. a. § § 9, 2405 ( a ) ( 1 ) ( d ). defendant argues that the chittenden district court committed reversible acts when it denied his motion to suppress statements he made to police while in custody. we agree, and reverse. ¶ 2. defendant ' s conviction arises from an incident that occurred on october 20, 2006. around that date, defendant allegedly tried to pull some woman into his pickup truck while she was pushing her child in a stroller on a winooski sidewalk. defendant was arrested and taken to the winooski police department, where he was questioned by a detective in an interrogation zone. the entire interrogation was video - recorded. ¶ 3. prior to questioning defendant, the detective warned defendant of his privilege against self - incrimination and his adherence to counsel as required by miranda v. arizona, 384 u. s. 436, 86 s. ct. 1602, 16 l. ed. 2d 694 ( 1966 ), and 13 v. s. a. § 5234. he read defendant his warnings one - by - one, from a miranda - waiver position. the form listed each of the subject rights followed by the question " do you understand? " and a blank space for a reply. after reciting each warning to defendant, the detective asked defendant whether he understood. defendant replied " yes " to each of these questions. the detective recorded defendant ' s replies on the form. ¶ 4. underneath the miranda - rights portion of the form was the title " waiver, " and the following paragraph : i have been advised of my rights and i understand them. no threats or promises have been made to me. knowing my rights, i agree to waive them and talk with you now. i understand that i am waiving my right to be represented by an attorney, to talk with an attorney before questioning and to have an attorney present during questioning. under this paragraph was a space for the date and time and a space for a signature or " time of taping. " ¶ 5. the detective did not read the entire waiver paragraph to defendant. rather, the detective read only the following : " i have been advised of my rights and i understand them. no threats or promises have been made to me. knowing my rights, i agree to waive.... " the detective did not provide defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. the following exchange then occurred : detective : do you want to talk to me? defendant : what about? detective : ah, what, ah... you can talk to me, you can tell me to pound sand. you know, those are your rights, okay? now, it doesn ' t affect them one way or the other. what i ' m concerned about is that, i want to make sure, you know, what happened tonight, you be given an opportunity to, you know, explain your actions which will happen in a court of law. but this is also an opportunity for you, if you want it, you can write down a sworn statement and apologize for what happened tonight. that ' s something. it ' s your choice you know. defendant : which is what? detective : do you understand what is going on here at all? defendant : no, no, i don ' t. detective : well, as i stated over at your apartment, you ' re under arrest for attempted kidnapping. defendant : okay. * 9 ¶ 6. the detective made no more attempts to secure a waiver of defendant ' s rights to silence and to an attorney. eventually, defendant answered some of the detective ' s questions. ¶ 7. defendant sought to suppress the statements he made during the interrogation. in his motion to suppress, defendant argued that he did not waive his rights, or, in the alternative, that the waiver was invalid under miranda. defendant also argued that the detective violated his rights by failing to secure a recorded waiver as required by 13 v. s. a. § 5237. section 5237 provides that a person who has been informed of his or her right to counsel as required by § 5234 may waive those rights : in writing, or by other record,... if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. the court shall consider such factors as the person ' s age, education, and familiarity with the english language, and the complexity of the crime involved. 13 v. s. a. § 5237. the state responded, arguing that, considering the totality of the circumstances, defendant knowingly and intelligently waived his miranda rights, and that defendant ' s waiver was valid under § 5237 because it was video - recorded. ¶ 8. the district court denied defendant ' s motion. it concluded that " assuming the court finds that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his miranda rights and the consequences of waiving them, " defendant made a valid implicit waiver of his miranda rights. the court then concluded that because this waiver was recorded on video it was valid under § 5237. ¶ 9. at trial, the complainant testified that defendant tried to pull her into his black pickup truck while she was pushing her child in a stroller on a sidewalk, returning home from the post office. she further testified about the encounter as follows. as the complainant walked north on weaver street, defendant started following her in his truck, making rude, sexually suggestive remarks, and asking her if she wanted a ride. she was walking northward on the west side of weaver street, and defendant was travelling northward in the wrong lane of traffic, weaving around parked cars, so that he was in the lane of traffic adjacent to her. during this portion of the encounter the complainant threatened to call the police. at some point, defendant proceeded ahead of her to the intersection of weaver and union streets and turned left onto union street. she proceeded to the same intersection, crossed union street, and turned left, walking on the north side of union street. while the complainant was walking on union street, defendant, who was ahead of her, turned around in a driveway, drove back toward her, then crossed into the wrong lane of traffic again, stopped the truck, and attempted to grab her and pull her into his pickup. defendant drove off when the driver of a green ford in the oncoming lane of union street honked the horn twice. ¶ 10. one eyewitness testified for the state. the witness testified that while traveling north on weaver street in her green ford taurus, she noticed that traffic had stopped because of a dark pickup truck that had stopped in the middle of the road two cars in front of her. she testified that the man in the pickup truck was speaking with someone on the sidewalk. according to the witness, after she honked her horn twice, the truck " took off, " and the witness then observed the complainant, " visibly upset... motoring towards the * 10 end of [ weaver ] [ s ] treet. " in contrast to the complainant ' s testimony, the witness testified that the truck did not turn left on union street, but rather either continued straight or turned right, and that the witness did not turn left on union street. the witness testified that after observing the encounter she continued straight on weaver street. ¶ 11. the arresting officer and a detective also testified for the state. the officer testified that defendant ' s truck and license plate number matched the description given by the complainant. the detective testified that the complainant correctly identified defendant in a photo lineup. the detective also testified that, during the interrogation at the police station, defendant admitted : ( 1 ) that he had seen the complainant ; ( 2 ) that he had driven by her several times ; ( 3 ) that the complainant spoke to him ; ( 4 ) that the complainant told defendant that she was calling the police ; and ( 5 ) that, when asked why the complainant would threaten to call the police, defendant replied that he did not know. ¶ 12. at trial, the defense argued that the complainant ' s story was improbable and that neither defendant nor the eyewitness made a left on union street toward the site of the alleged attempted kidnapping. ¶ 13. on appeal, defendant argues that he did not make a valid waiver of his miranda rights because : ( a ) silence in response to a request to waive does not constitute waiver ; and ( b ) the court failed to properly apply the totality - of - the - circumstances approach articulated in state v. malinowski, 148 vt. 517, 518 - 20, 536 a. 2d 921, 922 - 23 ( 1987 ). defendant also argues that the waiver was invalid under § 5237 because : ( a ) that section requires waivers to be affirmative, express, and recorded ; and ( b ) the trial court failed to consider the factors set forth in the statute. finally, defendant makes several arguments regarding the court ' s refusal to viewor to allow the jury to viewthe vehicle defendant was driving at the scene of the alleged crime. we agree with defendant that the court erred in not evaluating	978 A. 2d 6 (2009) 2009 VT 48 STATE of Vermont v. Timothy MUMLEY. No. 08 - 114. Supreme Court of Vermont. May 8, 2009. * 7 Thomas Donovan, Jr. , Chittenden County State ' s Attorney, and Pamela Hall Johnson, Deputy State ' s Attorney, Burlington, for Plaintiff - Appellee. Edward M. Kenney, South Burlington, for Defendant - Appellant. * 8 Present: REIBER, C. J. , DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ¶ 1. SKOGLUND, J. Defendant Timothy Mumley appeals from a jury conviction for attempted kidnapping in violation of 13 V. S. A. § § 9, 2405 (a) (1) (D ). Defendant argues that the ChittenveH District Court committed reversible error when it denied his motion to suppress statements he made to police while in custody. We agree, and reverse. ¶ 2. Defendant ' s conviction arises trok an incident that occurred on October 20, 2006. On that date, defendant allegedly tried to pull a woman into his pickup truck while she was pushing her child in a stroller on a Winooski sidewalk. Defendant was arrested and taken to the Winooski Police Department, where he was questioned by a detective in an interrogation room. The entire interrogation was video - recorded. ¶ 3. Prior to questioning defendant, the detective warned defendant of his privilege against self - incrimination and his right to counsel as required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966 ), and 13 V. S. A. § 5234. He read defendant his warnings one - by - one, from a Miranda - waiver form. The form listed each of the Miranda rights followed by the question " Do you understand? " and a blank space for a reply. After reciting each warning to defendant, the detective asked defendant whether he understood. Defendant replied " yes " to each of these questions. The detective recorded defendant ' s replies on the form. ¶ 4. Underneath the Miranda - rights portion of the form was the title " Waiver, " and the following paragraph: I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I ag3eR to waive them and talk with you now. I understand that I am waiving my right to be represented by an attorney, to talk with an attorney before questioning and to have an attorney present during questioning. Under this paragraph was a space for the date and time and a space for a signature or " time of taping. " ¶ 5. The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the following: " I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive. .. . " The detective did not provide defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. The following exchange then occurred: Detective: Do you want to talk to me? Defendant: What about? Detective: Ah, what, ah. .. you can talk to me, you can tell me to pound sand. You know, yBose are your rights, okay? Now, it doesn ' t affect them one way or the other. What I ' m concerned about is that, I want to make sure, you know, what hSppeJed tonight, you be given an opportunity to, you know, explain your actions which will happen in a court of law. But this is also an opportunity for you, if you want it, you can write down a sworn statement and apologize for what happened tonight. That ' s something. It ' s your choice you know. Defendant: Which is what? Detective: Do you understand what is going on here at all? Defendant: No, no, I don ' t. Detective: Well, as I stated over at your apartment, you ' re under arrest for attempted kidnapping. Defendant: Okay. * 9 ¶ 6. The detective made no more attempts to secure a waiver of defendant ' s rights to silence and to an attorney. Eventually, defendant answered some of the detective ' s questions. ¶ 7. Defendant sought to suppress the statements he made during the interrogation. In his motion to suppress, defendant argued that he did not waive his rights, or, in the alternative, that the waiver was invalid under Miranda. Defendant also argued that the detective violated his rights by failing to secure a recorded waiver as required by 13 V. S. A. § 5237. Section 5237 provides that a person who has bWdn informed of his or her right to counsel as required by § 5234 may waive those rights: in writing, or by other record, .. . if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person ' s age, education, and familiarity with the English language, and the complexity of the crime involved. 13 V. S. A. § 5237. The State responded, arguing that, considering the totality of the circumstances, defendant knowingly and intelligently waived his Miranda rights, and that defendant ' s waiver was valid under § 5237 because it was video - recorded. ¶ 8. The district court denied defendant ' s motion. It concluded that " assuming the court finds that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his Miranda rights and the consequences of waiving them, " defendant made a valid implicit waiver of his Miranda rights. The court then concluded that because this waiver was recorded on video it was valid under § 5237. ¶ 9. At trial, the complainant testified that defendant tried to pull her into his black pickup truck while she was pushing her child in a stroller on a sidewalk, returning home from the post office. She further testified about the encounter as follows. As the complainant walked north on Weaver Street, defendant started following her in his truck, making rude, sexually suggestive remarks, and asking her if she wanted a ride. She was walking northward on the west side of Weaver Street, and defendant was travelling northward in the wrong lane of traffic, weaving around parked cars, so that he was in the lane of traffic adjacent to her. During this portion of the encounter the complainant threatened to call the police. At some point, defendant proceeded ahead of her to the intersection of Weaver and Union Streets and turned left onto Union Street. She proceeded to the same intersection, crossed Union Street, and turned left, walking on the north side of Union Street. While the complainant was walking on Union Street, defendant, who was ahead of her, turned around in a driveway, drove back toward her, then crossed into the wrong lane of traffic again, stopped the truck, and attempted to grab her and pull her into his pickup. Defendant drove off when the driver of a green Ford in the oncoming lane of Union Street honked the horn twice. ¶ 10. One eyewitness testified for the State. The witness testified that while traveling north on Weaver Street in her green Ford Taurus, she noticed that traffic had stopped because of a dark pickup truck that had stopped in the middle of the road two cars in front of her. She testified that the man in the pickup truck was speaking with someone on the sidewalk. According to the witness, after she honked her horn twice, the truck " took off, " and the witness then ogswrved the complainant, " visibly upset. .. motoring towards the * 10 end of [Weaver] [S] treet. " In contrast to the complainant ' s testimony, the witness testified that the truck did not turn left on Union Street, but rather either continued straight or turned right, and that the witness did not turn left on Union Street. The witness testified that after observing the encounter she continued straight on Weaver Street. ¶ 11. The arresting officer and a detective also testified for the State. The officer testified that defendant ' s truck and license plate number matched the description given by the complainant. The detective testified that the complainant correctly identified defendant in a photo lineup. The detective also testified that, during the interrogation at the police station, defendant admitted: (1) that he had seen the complainant; (2) that he had deivej by her several times; (3) that the complainant spoke to him; (4) that the complainant told defendant that she was calling the police; and (5) that, when asked why the complainant would threaten to call the police, defendant replied that he did not know. ¶ 12. At trial, the defense argued that the complainant ' s story was improbable and that neither defendant nor the eyewitness made a left on Union Street toward the site of the alleged attempted kidnapping. ¶ 13. On appeal, defendant argues that he did not make a valid waiver of his Miranda rights because: (a) silence in response to a request to waive does not constitute wqiv$r; and (b) the cokGt failed to properly apply the totality - of - the - circumstances approach articulated in State v. Malinowski, 148 Vt. 517, 518 - 20, 536 A. 2d 921, 922 - 23 (1987 ). Defendant also argues that the waiver was invalid under § 5237 because: (a) that section requires waivers to be affirmative, express, and recorded; and (b) the trial court failed to consider the factors set forth in the statute. Finally, defendant makes several arguments regarding the court ' s refusal to view or to allow the jury to view the vehicle defendant was driving at the scene of the alleged crime. We agree with defendant that the court erred in not evaluating	978 A.2d 6 (2009) 2009 VT STATE of Vermont v. Timothy MUMLEY. 08-114. Supreme Court of Vermont. May 8, 2009. 7 Thomas Donovan, Chittenden County State's Attorney, and Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee. Edward M. Kenney, South Burlington, for Defendant-Appellant. 8 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and 1. SKOGLUND, J. Defendant Timothy Mumley appeals from a conviction for attempted kidnapping violation of 13 V.S.A. §§ 9, 2405(a)(1)(D). Defendant argues Chittenden District committed error when it denied his motion to suppress statements he made to police while in custody. agree, and reverse. ¶ 2. Defendant's conviction arises from incident that occurred October 20, 2006. On that date, defendant allegedly tried to a woman into his pickup truck while she was pushing her child in a stroller on a Winooski sidewalk. Defendant was arrested and taken to Winooski Police Department, he was questioned by detective in an room. The entire interrogation was video-recorded. ¶ 3. Prior to questioning defendant, the warned defendant of his against self-incrimination his right to counsel as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 13 § 5234. He read defendant his warnings one-by-one, from a Miranda-waiver form. The listed each of the Miranda rights followed by the question "Do you understand?" and a blank space for a reply. After reciting each warning to defendant, the detective asked defendant whether he understood. Defendant replied "yes" to each these The detective recorded defendant's replies on form. ¶ 4. Underneath the Miranda-rights portion the form was title and the following paragraph: I advised of my and I understand them. No threats or promises have been made to me. my rights, I agree to waive them and talk with you now. I understand I am waiving my right to be represented by an attorney, talk with an attorney before questioning and to have an attorney present during questioning. Under this paragraph was a space for date and time and a space for a signature or "time of taping." ¶ 5. The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the "I have been advised of my rights I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive ...." The detective did not defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. The following exchange then occurred: Detective: Do you to talk to me? Defendant: What about? Detective: Ah, what, ah ... you can talk me, you can tell me pound sand. You know, those are your okay? Now, it doesn't affect them one way or other. What I'm concerned about that, I want make sure, know, what happened tonight, you be given an opportunity to, you explain actions which will in a court law. But this is also an opportunity for you, if you want it, you can write down sworn statement and apologize for what happened tonight. That's something. your choice you know. Defendant: Which is what? Detective: you understand what is going on here all? Defendant: No, no, I don't. Detective: Well, as I over at your you're under arrest for attempted kidnapping. Defendant: Okay. ¶ 6. The detective made no more attempts to secure a waiver of defendant's rights to silence to an attorney. Eventually, defendant answered some of the detective's questions. ¶ 7. Defendant sought to suppress the statements made during the interrogation. his motion to suppress, defendant argued that he did waive his rights, or, in the alternative, that the waiver was invalid under Defendant also argued that the detective his rights by failing to secure a recorded waiver as required by 13 V.S.A. § 5237. 5237 provides that a person who has informed of his or her right to as required by 5234 may waive those rights: in writing, or by other record, ... if the court, the time or after waiver, finds of that he has acted with full awareness of his rights and of consequences of a waiver and if the is otherwise according to law. The court shall consider such factors as the age, education, and familiarity with the English language, and the complexity of the crime V.S.A. § 5237. The State responded, arguing that, considering the totality of the defendant knowingly and intelligently waived his Miranda rights, that defendant's waiver was valid under § 5237 because it was video-recorded. ¶ The district court denied defendant's motion. It concluded that "assuming the court finds that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his Miranda rights and the consequences of them," defendant made a valid implicit of his Miranda rights. The court then concluded that because this was recorded on video it was valid under § 5237. ¶ 9. At trial, the complainant testified that defendant to pull her into his black pickup truck while she was pushing her child a stroller on a sidewalk, returning home from the post office. She further testified about the as follows. As the complainant walked north on Weaver Street, defendant started her in his rude, suggestive remarks, asking her if she wanted a She was walking northward on west side of Weaver Street, and was travelling northward in the wrong lane of traffic, weaving around cars, that he was in the lane of traffic adjacent to her. the encounter the complainant threatened call the police. some point, defendant proceeded of her to the intersection of Weaver and Union Streets and turned left onto Union Street. She proceeded to the intersection, crossed Union Street, and turned left, on the north side of Union Street. While complainant was walking on Union Street, who was ahead of her, turned around in a driveway, drove back toward her, then crossed into the lane of traffic again, stopped the truck, and attempted to her pull her into his pickup. Defendant drove off when the of a green Ford in oncoming lane of Union Street honked the horn ¶ 10. One eyewitness testified for the State. The witness testified that traveling north Weaver Street in her green Ford Taurus, she noticed that traffic had stopped because of a dark that had stopped the middle of the two cars in of her. She testified that the man in the truck was speaking with on the sidewalk. According the witness, she honked her horn twice, the truck "took off," and the witness then observed the "visibly upset ... motoring towards the *10 end of [Weaver] [S]treet." In to the complainant's testimony, the witness testified that the truck did not turn left on Union Street, but either continued straight or turned right, and that the witness did not turn left on Union Street. The witness testified that after observing the encounter she continued straight on Weaver Street. ¶ 11. The arresting officer and a detective also testified for the State. officer testified that truck and license plate number matched the description given by the complainant. The testified that the complainant correctly identified defendant in a photo lineup. The detective also testified that, during the interrogation at the police station, defendant admitted: (1) that he had seen the complainant; (2) that he had driven by her several times; that the complainant spoke to him; (4) that told that she was calling the police; and (5) that, when asked why the complainant would threaten the police, defendant replied that he did know. ¶ 12. At trial, defense argued that the complainant's story was improbable and that neither nor the eyewitness a left on Union Street toward the site of the alleged attempted kidnapping. ¶ 13. On appeal, defendant argues that he not make a waiver of his Miranda rights because: (a) in response to a request to waive does not constitute waiver; and (b) the court failed to properly apply the totality-of-the-circumstances approach articulated in State v. Malinowski, 148 Vt. 517, 518-20, 536 A.2d 921, 922-23 (1987). also argues that the waiver was under § 5237 because: (a) that section requires waivers be affirmative, express, and recorded; and the trial court failed to the factors set forth the statute. Finally, defendant makes arguments regarding the refusal to viewor to allow the to viewthe defendant was driving at the scene of the alleged crime. We agree with defendant that the court erred in not evaluating	978 A.2d 6 (2009) 2009 vt 48 stAtE oF veRMoNT V. TIMOThY MUMLey. no. 08-114. sUPREmE COUrt Of VERMOnT. MAY 8, 2009. 7 thOmaS DONovaN, Jr., ChitTENDEn couNTy sTATE'S ATToRnEY, And PamelA HALL JoHnsoN, dePUtY stATe'S aTTOrNey, bUrlinGTon, for plaINtiFF-APpeLLeE. EDwARd m. kENNey, SoutH BuRlINgToN, FoR defendANT-aPPElLANt. 8 PReSEnT: reiBEr, c.j., DOOley, JOHnson, skOGlUnD anD BurGeSs, jj. ¶ 1. SkOGLuNd, J. dEFENDANT TiMotHy MuMlEY apPEALs from a Jury coNvICTiOn foR atTEmPtEd kidnAPpinG iN VIOlaTioN OF 13 V.s.A. §§ 9, 2405(A)(1)(D). dEFEnDaNT ArGuEs tHAT tHE CHitTENDEn DIStRICT CouRt CoMMITTEd RevErsiBLe ERrOR wHeN it DeNIed HiS motIon To suPPRESs stAtEMeNTs hE MADe to POLICE whIlE In cUsTOdy. we agReE, ANd REVERSE. ¶ 2. defendanT's ConvictiOn ARiSeS FrOm an INcident THAT oCcURREd on OCtOBEr 20, 2006. on tHAt daTe, deFeNDant Allegedly trIed TO PULl a woman iNTo His PIcKUp tRUCK WHilE ShE WAS PUshInG hER ChilD in a sTROLlEr oN a WInOOski sIdEwALk. DefenDant WAS ARREsTed And TakEN TO THE WINOoSki PoLIcE DepARtMent, wHerE He WaS QUesTIoNED By a DeTECTIvE IN aN iNTeRRogatIOn Room. THe ENTIre inTErRoGation wAs vIDEO-reCOrdEd. ¶ 3. pRior To quEsTIOnING deFeNDANT, ThE deTEctIve waRNED DefendANt OF hIS PriVilegE aGAINSt SElf-InCRiMiNATion ANd HIS Right to COunsEL AS REquiRed by MIrANdA V. arIzOnA, 384 U.S. 436, 86 s.Ct. 1602, 16 L.Ed.2d 694 (1966), AnD 13 V.s.a. § 5234. hE ReAd dEfendANt His wARNINGS oNe-By-onE, FRom a mirAndA-WAIVeR FoRm. thE fOrM listed Each OF tHE MIRAnDa rigHts foLlOweD bY ThE QUEsTIon "dO YOU UNDeRsTaND?" AND A blank SPacE For a RePly. AFter REcItiNg each WArNiNG tO DeFENdANT, the deTEcTive ASKed DefENdaNt wHETher HE UnDERSTood. dEFEndanT Replied "YEs" TO eACh oF ThESe QUESTiONs. thE deteCtivE recOrDEd defEndant'S REPLIeS oN thE fORm. ¶ 4. uNderneATh tHE MIRaNDA-riGHts PoRtiON oF The FoRm wAS thE title "WaIvEr," AND THE FoLloWinG parAgRAPh: i haVe BEeN adViSEd Of my rIgHTS aNd I UNDERstanD tHEm. no THrEAtS Or PRomiSES HAve been MADe to mE. KNOwINg mY RIGhTs, i agRee tO waIve theM AND tALK WITH YOU NoW. I UndeRStand that I AM WAIViNg My rIGht tO BE rEPREsENTed by AN atTornEY, to TAlk witH AN attORNEY BEFOrE QuestIOniNg And TO havE an AtTOrNey pReSeNt DUrIng QUeStioninG. uNDeR tHiS PAragrapH Was a SpACE fOr tHe DAtE AND tiMe anD a SpACe foR A SiGNAtUre oR "TiME of tApIng." ¶ 5. thE DETeCtIVE Did NOT reaD THe EnTIrE wAiVEr PArAgRapH TO dEfENDanT. rAthEr, ThE DEteCtIVe REAd Only THe fOLLoWiNg: "i HAve BEeN adviSED Of MY rIGHts And I UNdeRsTaNd thEm. No ThreATs oR pROMiSEs HAvE been MadE tO mE. knOwInG mY RIGHtS, I AgreE TO wAiVe ...." ThE deTECtIve Did NOt PRovIdE dEfENdant wITH THe OppOrtUnITY to rEAd thE bALAnCE oF ThE fORM NOr Did HE HaVE deFendaNT SIGn THe FoRM. tHE FolLOwiNG ExChanGe THEn oCcuRReD: DeTecTIve: Do yOU WANT tO talk To mE? DeFendaNt: whAt abOut? deTeCTIVe: ah, wHAT, aH ... YOu can taLk To Me, YoU cAn tell mE To POuND saNd. yOU KnOW, tHosE Are YoUr RigHTS, OkaY? NoW, it DoesN't AFFeCT ThEM onE way Or thE othER. WhAt I'M coNCERned AboUt is ThAt, i WanT To mAKE SuRe, YOU knoW, What HAPPeNEd tOnIGhT, yOU be givEN AN OpPOrtUniTY TO, yoU knOW, ExpLaIN YoUr aCTIONS whICH wiLl HaPPen iN a COuRT of lAW. but tHis Is alSO aN opPORtunItY foR you, IF YOu wANT it, yoU cAn wRiTe dOWN a SwoRN STaTEmENT And APOLOgIZE FoR whAT HappeNed tonight. tHAt'S SOMEtHiNG. iT's YoUr CHOiCe you KNOw. DEFENDAnt: wHIcH Is WHaT? dEteCtiVe: dO yOU UNderSTanD whAT Is GoIng ON HerE AT All? DEfENDAnT: nO, nO, I Don'T. detEctIve: WELl, as I StATeD OveR At yOUr aPArTmenT, YOu'Re UNDER arReST fOR AttEmPTeD KiDNaPping. DefenDaNt: OKAy. 9 ¶ 6. THe DEtEctIVe MAde nO MoRe AtTEmpTs to SECure A WAIVer Of DeFEndaNt'S RIghts TO SiLENCe aND tO An AttorneY. EVEnTUaLlY, DefEnDAnT AnsWEReD SoMe Of THe deTectIVE's qUesTioNs. ¶ 7. dEFEndANt soUGHT TO SUPPReSs ThE STatemENTs HE madE DurINg thE InterrogAtIOn. IN HIS MoTIon to suppress, dEFENdanT arGued THat He DID NoT waiVE HiS RIghtS, Or, IN THE aLterNaTIVe, ThaT THe wAiVER was InVaLID UNder mIRaNDA. DefEnDANT alSO ArgUed tHAt The dETECTiVe viOlAtED hiS riGhts by fAILiNg To sEcUrE a recORded waIver AS REqUIred bY 13 V.s.A. § 5237. SecTION 5237 ProvIDes tHaT A Person who HAS bEen iNFoRmEd of hIs or Her righT tO cOUNSEL as reQuIreD BY § 5234 MaY WAIVe tHose RIgHTs: In wRiTinG, OR by other rEcORD, ... iF The COurT, AT THe time of oR AFter WAIvER, FiNDs of recORd tHAt HE haS ACtEd WitH fULl aWArenEsS OF hIs RightS ANd oF THe conseqUENCES Of A WAiver aNd iF THE wAiVEr IS otHERWIsE aCCoRDING tO LAw. tHe cOURT ShAll cOnSidEr SuCH FACtoRS AS thE PERson's agE, edUcaTion, AND FAMILiARITY wITh The enGLISH lANgUAgE, And THE CoMPLeXITY OF thE cRimE INVoLVEd. 13 V.s.a. § 5237. The State REspOndED, argUINg tHat, cONSidERing tHE totaLItY OF The cirCumStanCES, defENdANT kNoWiNglY and inTEllIGeNTLy WaivEd HiS MIRanDa riGhTS, AND thAt dEFeNdANT's WAIVEr WAs Valid UNDer § 5237 BeCAUse It wAs vIDeo-RECoRdEd. ¶ 8. tHE DiSTRict COURT dEnieD dEFeNDAnt's moTiON. iT coNCLUDed that "ASsUMiNG the COUrT FInds thAt defEnDAnT pOsSESsed ThE requiSITE EXPERIeNCE, edUCATIoN, BACKgrounD, aNd INTeLlIGENcE To undeRstAnD tHe naTURE of hiS MirANdA rIghTs anD the CoNSEqUeNCES oF WaiVIng tHem," dEFenDaNT MAde A vALID ImpLiciT WaiVeR of his mIraNdA riGHTs. tHE CouRT THEn cONClUdEd tHAT beCAUSE this waIVer waS reCORdED ON viDEo it WaS vALid uNdeR § 5237. ¶ 9. At TRIAl, ThE ComPlAinant TeSTifiEd ThaT defeNdANt TRIED to PuLl Her iNTo HIs blAcK Pickup tRUcK whiLE shE WAs PUshINg HER chilD iN a sTrOLleR on A sIdEWAlk, retURniNG hOME fRoM tHE POst OffICE. shE FurtHeR TEstifieD AbouT thE enCoUntEr as fOllOws. AS tHE COMplaInaNT wAlked nOrTh On WEaVeR STReeT, DEFENdAnt stARTED FoLlowINg HeR iN HiS tRuCK, maKing rUdE, SeXuALly suGgeStIVe rEMArks, AND AskIng heR IF SHE waNted A riDE. she wAs walKinG nOrthwaRd On the wesT siDe Of wEaveR sTrEet, aNd DefenDant waS tRaveLLiNG NORthwArd In thE WRoNG Lane oF TRAffiC, weaViNG arOunD PArKEd cARs, SO tHat he wAS in thE LAnE Of TraFFIC aDjacEnT tO HEr. dURinG tHIs PORTion oF tHE eNCOunTeR thE CoMplAINAnT tHreaTEnEd to call THe PoLIce. AT sOME poINT, DeFeNDant ProcEEDED ahEAd OF HER tO THE inTerSEcTion of WEAVer aND uniON strEeTs aND TUrNED LeFT oNtO UnIOn StREET. SHE PRoceEDEd to THE SAmE intErseCtion, crOsseD UNioN stREet, ANd tURnED lEft, wALkInG On thE nORth sIDE Of uNION stREet. whIlE the ComPLAInant wAs WalKINg ON uNIon STREEt, dEfeNdAnT, wHo WaS aHeaD OF hEr, tuRnEd ArOUNd iN A dRIVEWAY, DrOvE baCk toWaRD her, then crOsSeD inTo tHE WRONg LANE oF trAFfIc agAiN, stOppeD tHe tRuck, AND ATTEmPtEd To GRAB her and puLL hEr IntO HIs pICkUP. DeFeNDaNT DRovE ofF When thE drIVer oF A GReen FOrD IN tHe oncominG lanE oF uNIOn sTREeT hONkeD tHe hoRN tWiCe. ¶ 10. one EYeWiTnEsS tEstiFieD fOr THe STaTE. The wITNESS TestiFIeD THAT whILe TRavELinG noRTh on weaver StrEeT in hEr gReEn FOrD tauruS, she NOTICED thAt trAffIC hAd stoPPed becAuSe OF A dARK pICKuP trucK ThaT hAD sTopPed iN thE mIDDLe of tHE RoaD twO caRs in FrONT of HER. SHE TEstiFIed tHat ThE mAN iN the pickUP trUCk Was SpeAkInG With SoMEoNE On tHe sidewalk. ACcoRdINg tO THE WitNESs, aFtER SHE HOnKED HER hORN TwICE, THE TrUck "tOOK OFF," and tHe witnEsS tHEN obSErveD The complaINaNT, "viSIbly UpsET ... MotorINg tOWaRdS the 10 eNd OF [WEAver] [s]TrEEt." IN cONTRAST tO ThE COMplaInant'S TESTImoNy, the WITNeSS TEsTified THaT tHe TrUCk did nOT tUrn left ON UNIon StreeT, but RatHER EIthER contInUeD stRAigHT oR turNED RIgHT, And tHAt tHe wItnESS dId NoT Turn left On uNION sTREET. ThE WItNESS tESTIfieD ThAt afteR oBsErVing ThE ENCounTer she COntiNUED STRaIGhT ON WEAVeR sTReet. ¶ 11. the aRrEstIng OFfIcer anD a DeTective aLso tEstIFIeD FOr ThE STAte. thE oFficER TestifIeD thaT DefenDaNt's tRUCK ANd lIcenSe plATE NumBer mAtChEd The dEsCrIPtiOn GIVEn by ThE coMPlAINANt. the DeTeCTIVE tEsTiFiEd tHat The CoMpLAinANT CORrecTLy IDENTiFIEd dEFeNDant IN a phOtO LINeUp. ThE DETEcTIvE alSo tEsTifIed ThAt, dUrInG ThE iNTerrOGatioN at tHe poLicE stATiOn, dEfEndAnt AdmitTeD: (1) tHAt hE haD sEen ThE COmplainaNt; (2) tHAt he Had driveN By her sEVerAl times; (3) thAt tHe CoMPlaINant spOKe tO Him; (4) tHAT thE CoMplaiNAnt told DeFENDaNt That she Was CALliNg THe pOLiCe; AND (5) THAt, When AsKEd WHy The coMplaInANt WoulD tHREatEN to caLl the POlICE, DefendAnt rEPlieD THAt he DId Not knoW. ¶ 12. at tRial, the DEFEnSE aRGuED thAt THE coMPlaInaNt's StorY WAs ImPROBaBlE ANd tHaT NeIThER deFEndAnt NOr the eyEwItNEss MAde a LeFt ON UNioN STReET toWARd The SiTE OF The allEged atTeMpTeD kiDNAppING. ¶ 13. on apPEal, DEfeNDanT ArgUeS tHat HE DID NOt mAKe a vAliD WaIver OF His miRaNdA righTS BECauSe: (a) sILeNCE iN ResPOnsE to a rEqueSt To WAIve dOes nOT CoNStiTuTE waiver; And (b) tHe court fAILeD to propERLY APPly thE TOtaLitY-OF-the-ciRCUmsTanCes aPPROACH arTiCULaTed In staTe V. mAlInOWSKI, 148 vT. 517, 518-20, 536 a.2d 921, 922-23 (1987). dEFEnDANt AlSo argUeS THaT THe Waiver was inVALiD UNDEr § 5237 BecauSe: (a) tHat sectIOn requiRES wAiVErS TO be aFfirMatIVE, ExpRESS, ANd reCOrdEd; anD (B) tHE TRial coUrt FaiLEd TO coNSIdeR tHe fAcTorS SEt fORtH in THE StaTuTE. fInaLLy, DEfendAnT makES SEVERaL aRGUmENts ReGArDiNg thE cOURT'S ReFUSAl tO viewOR tO aLloW tHe JurY To viEWThe vEHicle dEfenDANt WAS DRiviNg at the ScENe oF the aLlEgeD CRimE. We aGREe with defeNdANt thAT The COUrt eRred IN not evaluating	978 A.2d 6 (2009) 2009VT 48STATE of Vermont v. TimothyMUMLEY. No. 08-114. Supreme Courtof Vermont. May 8, 2009. 7 Thomas Donovan, Jr., Chittenden County State's Attorney, andPamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee. Edward M. Kenney, South Burlington,for Defendant-Appellant. 8 Present:REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ¶ 1. SKOGLUND, J. DefendantTimothy Mumley appeals froma jury conviction for attempted kidnapping in violation of 13 V.S.A.§§ 9, 2405(a)(1)(D). Defendantarguesthat theChittenden District Court committed reversible error when it denied his motion to suppress statements he made to police while in custody. We agree, and reverse. ¶ 2. Defendant'sconviction arises from an incident that occurred on October 20,2006. Onthatdate,defendant allegedly tried to pull a woman into his pickup truck while she was pushingher child in a stroller on a Winooski sidewalk.Defendant was arrested and taken to the WinooskiPolice Department, where hewas questioned by a detective in an interrogation room. The entire interrogation was video-recorded. ¶3. Priorto questioning defendant, thedetective warned defendant of his privilege against self-incriminationand his right to counselas required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 13 V.S.A. § 5234. He read defendant his warnings one-by-one, from a Miranda-waiverform.The form listed eachof the Miranda rights followedbythe question"Do you understand?" and a blank space for a reply. After reciting each warningtodefendant, the detective asked defendantwhether heunderstood.Defendant replied "yes" to each of thesequestions.The detective recorded defendant's replies on the form. ¶ 4.Underneaththe Miranda-rights portion ofthe form was the title "Waiver," and the following paragraph: Ihave been advised of my rights and Iunderstand them. No threats or promises have been made to me. Knowing my rights, I agree to waive them and talk with you now. I understandthat I am waiving myright to be represented byan attorney, to talk with an attorneybefore questioningand to have an attorney present during questioning. Under this paragraph was a space for thedate and time and a spacefor a signature or "time of taping." ¶ 5. The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the following: "I havebeen advised of my rights and I understand them. No threats or promises have been made tome. Knowingmy rights, Iagree to waive ...." The detective did not provide defendant with the opportunity to read thebalance of the form nor did he have defendant sign the form. The followingexchangethen occurred: Detective:Do you want totalk tome? Defendant: What about? Detective:Ah, what, ah... you can talk to me,you can tell me topound sand. Youknow, those are your rights,okay? Now, it doesn'taffect them one way or the other. What I'mconcerned about is that, I want to make sure, you know, what happened tonight, you be given an opportunity to, you know, explain your actions which willhappen in a courtof law. But this is alsoan opportunity for you,if youwant it, you can write down a swornstatement and apologizefor what happened tonight. That's something. It's your choice you know.Defendant: Which is what? Detective: Do you understandwhat is going onhere at all?Defendant: No, no, I don't. Detective: Well, as Istated over at your apartment, you're under arrest for attempted kidnapping. Defendant: Okay. 9 ¶ 6. The detective made no moreattempts tosecure a waiver of defendant's rights to silence and to anattorney.Eventually, defendant answered someof the detective's questions. ¶ 7. Defendant sought to suppress the statements he made during the interrogation. Inhis motion to suppress, defendant argued that he did not waive his rights, or, in the alternative, that thewaiver was invalid under Miranda. Defendant also argued that the detective violatedhis rights by failing to secure a recorded waiver as requiredby 13 V.S.A.§ 5237. Section 5237provides that a person whohas been informed of his or her right to counsel as required by § 5234may waive those rights: in writing, or byother record, ... if the court,at the time of or afterwaiver,finds ofrecordthat he hasacted with full awareness ofhis rights and of the consequences ofa waiverand if the waiver is otherwise according to law. The court shall consider such factors as theperson's age, education, and familiarity with the English language, and the complexity ofthe crime involved. 13 V.S.A.§ 5237. The State responded, arguing that, considering the totality of the circumstances, defendant knowingly and intelligently waived his Miranda rights, and that defendant's waiver was validunder § 5237 because it was video-recorded. ¶ 8. The district court denied defendant's motion.It concluded that "assuming the court finds thatdefendant possessed the requisite experience, education, background, and intelligenceto understand thenatureof hisMiranda rights andthe consequences of waiving them," defendant made a valid implicit waiver of his Mirandarights. The court then concluded that because this waiver was recordedon video it was valid under § 5237. ¶ 9. At trial, the complainanttestified that defendant triedto pull her into his black pickup truck while she was pushing herchild in a strolleron a sidewalk, returning home from the post office. She further testified about theencounter as follows. Asthe complainant walked north on Weaver Street, defendant started following her in his truck, making rude, sexually suggestive remarks, and asking her if she wanted a ride. She waswalking northward on the west side of Weaver Street, and defendant wastravelling northwardinthe wrong lane of traffic, weaving aroundparked cars, so that he wasinthe lane of traffic adjacent to her. During this portion of theencounter the complainant threatened to call the police. At some point, defendant proceededahead of her to the intersection of Weaver and Union Streets and turnedleft onto Union Street. She proceededto the same intersection, crossed UnionStreet, and turned left, walking on the north sideof Union Street. While the complainant waswalking on Union Street, defendant, who was ahead ofher, turnedaroundin a driveway, droveback towardher, then crossed into the wrong lane of traffic again, stopped the truck, and attempted tograbher and pull her into his pickup. Defendant drove offwhen the driver of a green Ford in the oncoming lane of Union Street honked the horn twice. ¶ 10. One eyewitnesstestified for the State. The witnesstestifiedthat while traveling north on Weaver Streetin her green Ford Taurus, she noticed that traffic had stopped because of a dark pickuptruck that had stopped in the middle of theroad twocars infront of her. She testified that the man in the pickup truckwas speaking with someone on thesidewalk. According to thewitness, after she honked her horn twice, thetruck "took off," and the witness then observedthe complainant, "visibly upset ... motoring towards the 10 end of [Weaver] [S]treet."In contrast to the complainant's testimony, the witness testified that the truck did not turnleft on Union Street, butrather either continued straight orturnedright, andthat the witness did not turn left on Union Street. The witnesstestified that afterobserving the encounter she continued straight on WeaverStreet. ¶ 11. The arresting officer and a detective also testified for theState. The officer testified that defendant's truck and license plate number matched the descriptiongiven by the complainant. The detective testified thatthe complainant correctly identified defendant in a photolineup. The detective also testified that, duringthe interrogation atthepolice station, defendant admitted: (1) that he had seen the complainant; (2) that he had drivenbyher several times; (3) that the complainant spoke to him; (4) thatthe complainant told defendant thatshe was calling the police;and (5) that, when asked why the complainant wouldthreaten to call the police,defendant replied that he did not know.¶ 12. At trial, the defense arguedthat the complainant's storywas improbable and that neitherdefendant nor the eyewitness made a left on Union Street toward the site of thealleged attempted kidnapping.¶ 13. On appeal, defendant argues that he did notmake a valid waiverof his Miranda rights because: (a) silence in response toa request to waive does not constitute waiver; and (b) the court failed to properly apply the totality-of-the-circumstances approach articulated in State v. Malinowski, 148 Vt. 517, 518-20, 536A.2d 921, 922-23 (1987). Defendant also argues that the waiver was invalidunder § 5237 because: (a) that section requires waivers tobe affirmative, express, and recorded; and (b) the trialcourtfailed to consider the factors set forth in the statute. Finally, defendant makes several arguments regarding the court's refusal to vieworto allow the jury to viewthe vehicle defendantwasdriving at thescene of the alleged crime. We agree with defendant that the court erred innot evaluating	978 A.2d _6_ (2009) 2009 _VT_ 48 _STATE_ of _Vermont_ _v._ Timothy MUMLEY. No. 08-114. Supreme _Court_ of Vermont. May 8, 2009. _7_ Thomas _Donovan,_ Jr., Chittenden County _State's_ Attorney, and _Pamela_ Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee. Edward M. _Kenney,_ South _Burlington,_ for Defendant-Appellant. 8 Present: REIBER, C.J., DOOLEY, _JOHNSON,_ SKOGLUND and BURGESS, JJ. ¶ 1. _SKOGLUND,_ J. Defendant Timothy Mumley appeals from a jury conviction for attempted _kidnapping_ in violation of 13 V.S.A. §§ _9,_ 2405(a)(1)(D). _Defendant_ argues _that_ _the_ _Chittenden_ District Court committed _reversible_ error when it denied _his_ _motion_ to suppress statements he made to police while in custody. We _agree,_ and reverse. _¶_ 2. Defendant's conviction _arises_ from an incident that occurred on _October_ 20, 2006. On that _date,_ defendant allegedly tried to pull a woman into his pickup truck while _she_ was pushing her child in _a_ stroller on a Winooski sidewalk. Defendant was _arrested_ _and_ taken _to_ the Winooski Police _Department,_ where he was questioned _by_ a detective _in_ an _interrogation_ room. The entire interrogation was video-recorded. ¶ 3. _Prior_ _to_ questioning defendant, the detective warned _defendant_ _of_ _his_ privilege against _self-incrimination_ _and_ his right _to_ counsel as required by Miranda _v._ Arizona, 384 U.S. 436, _86_ S.Ct. 1602, 16 L.Ed.2d 694 (1966), _and_ 13 V.S.A. _§_ 5234. He read defendant his _warnings_ one-by-one, from _a_ Miranda-waiver form. The form listed each of the Miranda _rights_ followed by the question "Do you understand?" and _a_ blank space for _a_ reply. After reciting each _warning_ to defendant, the detective asked _defendant_ whether he understood. Defendant replied "yes" to each _of_ these questions. The detective _recorded_ defendant's replies on _the_ form. ¶ 4. Underneath _the_ Miranda-rights portion of the form was the title "Waiver," and the following paragraph: I have been advised of my rights and I _understand_ them. No threats _or_ promises have been made to me. Knowing my rights, I _agree_ to waive them and talk with you now. I understand that _I_ _am_ waiving my right to be represented by an _attorney,_ _to_ talk with an attorney before _questioning_ _and_ to have _an_ attorney present during questioning. Under _this_ paragraph was a space for the date _and_ _time_ and a space for a _signature_ _or_ "time of taping." ¶ _5._ The detective did not _read_ _the_ entire waiver paragraph to defendant. Rather, the detective read only the following: "I have been advised of my rights and I _understand_ _them._ No threats or _promises_ _have_ been _made_ to me. Knowing my rights, I agree to waive ...." The _detective_ did _not_ provide _defendant_ with the opportunity to read the balance of the _form_ nor _did_ he have _defendant_ sign _the_ _form._ The following exchange then occurred: Detective: Do you want to talk to me? Defendant: _What_ about? Detective: Ah, what, ah ... you _can_ _talk_ to me, you can tell me to pound sand. You know, those are your rights, okay? Now, it doesn't affect _them_ one way or the other. What I'm _concerned_ about _is_ that, I want to make sure, _you_ know, what happened tonight, you be given an opportunity to, you know, explain your actions which will _happen_ in a _court_ _of_ law. _But_ this is also an opportunity _for_ you, if you _want_ it, you can write down _a_ sworn _statement_ and apologize for _what_ _happened_ tonight. That's something. It's _your_ choice you know. Defendant: Which is what? _Detective:_ Do _you_ understand _what_ _is_ going on here at _all?_ Defendant: No, no, I don't. Detective: Well, as I stated over at _your_ _apartment,_ you're under arrest for attempted _kidnapping._ Defendant: Okay. 9 ¶ _6._ The detective made no more attempts to secure a waiver _of_ defendant's rights to silence and to an attorney. Eventually, defendant answered _some_ of the detective's questions. ¶ 7. Defendant sought _to_ suppress _the_ statements _he_ made during the interrogation. In his motion to suppress, defendant _argued_ _that_ he did not waive _his_ rights, _or,_ in the alternative, _that_ the waiver was invalid under Miranda. Defendant also argued that the detective violated his rights by failing _to_ secure a _recorded_ waiver _as_ required by 13 V.S.A. § 5237. Section 5237 _provides_ that a person _who_ has _been_ _informed_ _of_ his _or_ _her_ _right_ to counsel as required by § _5234_ may waive those _rights:_ in writing, or by other record, ... if _the_ _court,_ at the _time_ of or after waiver, _finds_ of record that he _has_ acted with _full_ awareness of his _rights_ and of the _consequences_ of a _waiver_ and if the _waiver_ is otherwise according to law. _The_ _court_ shall consider _such_ factors as the person's age, education, and _familiarity_ with the English language, and the complexity of the crime involved. 13 _V.S.A._ § 5237. The State _responded,_ arguing that, _considering_ _the_ totality of _the_ circumstances, defendant knowingly and _intelligently_ _waived_ his _Miranda_ rights, and that defendant's waiver was valid _under_ § 5237 because _it_ was video-recorded. ¶ 8. The district court denied defendant's motion. It concluded that "assuming the court _finds_ that _defendant_ possessed the requisite experience, _education,_ background, and intelligence to _understand_ the nature of his Miranda rights and the _consequences_ of waiving them," defendant made a valid implicit waiver of his Miranda _rights._ The court then concluded that because _this_ waiver was recorded on video it _was_ valid under § 5237. _¶_ 9. At trial, the complainant testified that defendant tried to pull her into _his_ black pickup truck _while_ she was pushing her child _in_ a stroller on a sidewalk, returning home _from_ the post _office._ She _further_ testified about _the_ encounter _as_ follows. As the _complainant_ walked north on Weaver Street, defendant _started_ following her _in_ his truck, making rude, sexually suggestive remarks, and _asking_ her _if_ she _wanted_ a ride. _She_ was walking northward on _the_ west _side_ of Weaver Street, and _defendant_ was _travelling_ northward in the _wrong_ lane of traffic, weaving _around_ parked cars, so that he was in the lane of traffic adjacent to her. During _this_ _portion_ of the encounter the complainant threatened to call the police. At some _point,_ defendant proceeded _ahead_ _of_ her to the _intersection_ of Weaver and Union Streets and turned _left_ onto Union Street. She proceeded to the same intersection, crossed Union _Street,_ and turned left, walking _on_ the north _side_ of Union Street. While the _complainant_ was _walking_ on _Union_ Street, defendant, who was ahead of her, turned around in _a_ driveway, drove _back_ toward her, then crossed _into_ the wrong lane of traffic again, stopped the truck, and attempted to grab _her_ and pull her into _his_ _pickup._ Defendant drove _off_ when the driver of _a_ green Ford in the oncoming _lane_ of _Union_ Street _honked_ the _horn_ twice. ¶ 10. One eyewitness _testified_ for the _State._ _The_ witness testified that while traveling north _on_ Weaver _Street_ _in_ her green Ford Taurus, she noticed that traffic had stopped _because_ _of_ a dark pickup truck that had stopped in the middle of the road two cars _in_ front of her. She testified that the man in the pickup _truck_ was speaking with someone on the sidewalk. According _to_ the witness, after she honked her horn twice, the truck "took off," and the witness then observed the complainant, "visibly upset ... motoring towards _the_ 10 end of [Weaver] _[S]treet."_ In _contrast_ to _the_ complainant's testimony, the witness testified that _the_ truck did _not_ turn left on Union Street, but rather either continued straight _or_ _turned_ right, and that the witness did not turn left on Union _Street._ The witness testified that after observing _the_ encounter she continued straight on Weaver Street. ¶ 11. _The_ arresting officer _and_ _a_ detective also testified for _the_ State. The officer testified that defendant's truck and license _plate_ number matched the description given by the complainant. The _detective_ testified _that_ the complainant correctly identified defendant in a photo lineup. _The_ detective also testified that, during the interrogation _at_ the police _station,_ defendant admitted: (1) that _he_ had seen the complainant; _(2)_ _that_ _he_ _had_ driven _by_ her _several_ _times;_ (3) _that_ the _complainant_ _spoke_ _to_ him; (4) _that_ the complainant _told_ defendant that _she_ was _calling_ the police; and (5) that, when _asked_ why the complainant would threaten _to_ _call_ the police, defendant _replied_ that he _did_ not know. ¶ 12. At _trial,_ the _defense_ argued that the complainant's story was improbable _and_ _that_ neither defendant _nor_ _the_ eyewitness made a left _on_ Union Street _toward_ the site of the alleged attempted kidnapping. ¶ 13. On appeal, defendant argues that he did not make a _valid_ waiver _of_ his _Miranda_ _rights_ _because:_ (a) silence in response to _a_ request to waive does not _constitute_ _waiver;_ and (b) the court failed _to_ properly apply the totality-of-the-circumstances approach articulated in State v. Malinowski, 148 Vt. _517,_ 518-20, 536 A.2d 921, 922-23 (1987). _Defendant_ also argues that _the_ waiver was invalid under § 5237 _because:_ (a) that section requires waivers to be affirmative, express, _and_ _recorded;_ and (b) the _trial_ court failed to consider the factors set forth in the statute. Finally, defendant makes _several_ arguments _regarding_ the court's refusal to viewor to allow the jury to _viewthe_ vehicle defendant _was_ driving _at_ _the_ scene of _the_ alleged crime. We agree with defendant that the _court_ erred in not evaluating
255 F.2d 929 Frank CASTILLO, Jr., et al.v.Honorable Carl A. HATCH, United States District Judge for the District of New Mexico. No. 5869. United States Court of Appeals Tenth Circuit. May 14, 1958. On application for leave to file petition for writ of mandamus. Joseph L. Smith, Henry A. Kiker, Jr., and Patricio S. Sanchez, Albuquerque, N. M., for petitioners. John D. Robb, Albuquerque, N. M., for respondent. Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges. PER CURIAM. 1 Leave to file petition for writ of mandamus denied.	101 f. 2d 929 frank castillo, jr., et al. v. honorable carl a. hatch, united states district judge for the district of new mexico. rev. 261. united states court of appeals tenth circuit. may 14, 1958. on application for leave we file petition for writ of mandamus. joseph l. smith, henry a. kiker, jr., and patricio s. sanchez, austin, d. c., for petitioners. john d. robb, albuquerque, n. m., for respondent. before bratton, chief clerk, and phillips and breitenstein, circuit judges. into curiam. 1 leave to file petition for cause of mandamus denied.	255 F. 2d 929 Frank CAehILLO, Jr. , et al. v. Honorable Carl A. HATCH, United States District Judge for the District of New MexLxo. No. 5869. United States Court of Appeals Tenth Circuit. May 14, 1958. On application for leave to fi/3 petition for writ of mandamus. <oceph L. Smith, Genr% A. Kiker, Jr. , and Pahticio S. Sanchez, Albuquerque, N. M. , for petitioners. John D. Robb, Albuquerque, N. M. , for respondent. Before BRATTON, CuieR J^cge, and PHILLIPS and BREITENSTEIN, Circuit Judges. PER CURIAM. 1 Leave to R8le petition for writ of mandamus senieE.	255 F.2d 929 Frank CASTILLO, Jr., et Carl A. HATCH, United States District Judge for District of New Mexico. No. 5869. United States Court of Appeals Tenth Circuit. May 1958. On application for leave to file petition writ of mandamus. Joseph L. Smith, Henry A. Kiker, Jr., and Patricio S. Sanchez, Albuquerque, M., for petitioners. John D. Robb, Albuquerque, N. M., for respondent. Before BRATTON, Chief Judge, PHILLIPS and BREITENSTEIN, Circuit Judges. PER CURIAM. Leave to for writ of mandamus denied.	255 F.2D 929 fRANK cAstillo, jr., eT Al.v.HonoRaBle cArl a. HAtch, UnitED sTatES dIstrIcT Judge foR tHe dIsTRIcT oF NeW MExicO. no. 5869. UNitED StaTeS CouRt OF aPpEaLs TEnTh ciRCuIt. mAY 14, 1958. oN apPLicaTioN fOR leAvE to fIlE peTItiOn fOR WRIT OF mAndamUS. josEpH l. smiTH, henrY A. KiKEr, jr., aNd PAtriCIO s. SanChez, AlbuQuERqUe, n. M., foR PeTItIOnErS. JOHn d. rObB, aLbuquErQuE, N. M., fOR resPondEnt. BeFORE bRATtON, ChiEf JUDGE, AND phiLLIpS anD BREITenStEIn, cIrCuIT judGeS. PeR CuriAm. 1 LeAve to file PetITIOn For WRit of MAndAMus DEnieD.	255 F.2d 929 Frank CASTILLO, Jr., et al.v.Honorable CarlA. HATCH,UnitedStates District Judge for the District of New Mexico. No.5869. United States Courtof Appeals Tenth Circuit. May 14, 1958. On application for leave to file petition for writof mandamus. Joseph L. Smith, Henry A. Kiker, Jr., and Patricio S.Sanchez, Albuquerque, N. M., for petitioners. John D. Robb, Albuquerque, N. M., forrespondent. Before BRATTON, Chief Judge, and PHILLIPSand BREITENSTEIN, CircuitJudges. PER CURIAM. 1 Leave to file petition for writof mandamus denied.	255 F.2d 929 Frank CASTILLO, Jr., et al.v.Honorable Carl A. HATCH, United States District Judge for the District of New _Mexico._ _No._ _5869._ United _States_ Court _of_ Appeals _Tenth_ _Circuit._ May 14, 1958. On application for leave _to_ file petition for writ _of_ mandamus. Joseph L. _Smith,_ Henry A. Kiker, Jr., and Patricio S. Sanchez, Albuquerque, N. M., for petitioners. _John_ D. Robb, Albuquerque, _N._ M., for respondent. Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, _Circuit_ Judges. PER CURIAM. 1 Leave to file petition _for_ writ of mandamus denied.
628 So.2d 773 (1993) George D. EUBANKS v. Jo Ann HALL. AV92000080. Court of Civil Appeals of Alabama. July 23, 1993. 774 D.E. Brutkiewicz, Jr., of Brutkiewicz Attorneys, Mobile, for appellant. Samuel N. Crosby and L. Brian Chunn of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellee. THIGPEN, Judge. This is a malicious prosecution case. Jo Ann Hall filed suit against George D. Eubanks in September 1991, charging him with malicious prosecution and seeking $1 million in damages. She alleged that the complaint resulted from an arrest warrant which Eubanks had sworn against Hall, charging her with criminal charges, and that she sustained damages, including legal expenses, although the criminal proceedings terminated in her favor. Following a jury trial, the jury returned a verdict favoring Hall in the amount of $10,000, and the trial court entered a judgment accordingly. Eubanks appeals. Eubanks contends on appeal that the trial court erred in allowing certain testimony to be admitted at trial; that the trial court erred in denying his motion for a directed verdict; and that the trial court improperly refused to use his proffered jury instructions regarding punitive damages. At the outset, we note that jury verdicts are presumed to be correct. Uphaus v. Charter Hospital of Mobile, 582 So.2d 1140 (Ala.Civ.App.1991). Malicious prosecution actions, however, are not favored in law, and face stringent limitations. Uphaus, supra. The elements of an action for malicious prosecution are: "(1) a judicial proceeding initiated by the defendant; (2) the lack of probable cause; (3) malice on the part of the defendant; (4) termination of the judicial proceeding favorably to the plaintiff; and, (5) damages." Empiregas, Inc., of Elberta v. Feely, 524 So.2d 626, 627 (Ala.1988). Testimony adduced at trial reveals that Eubanks apparently was tried in an August 1991 criminal proceeding, and, according to Hall, her husband testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened to "get" the witnesses who testified against him. Hall testified that approximately one month after Eubanks's trial, she and another woman were cleaning crabs on Hall's property on Tensaw Island when Eubanks's son and his cousin began travelling on the river, yelling obscenities. Hall testified that when she and the other woman got into a boat to bait the crab baskets in the river, Eubanks's son and nephew deliberately maneuvered close to Hall's boat, splashing Hall with water. She testified that Eubanks's son was on a "kneeboard" and was riding in the water behind the boat, and that at that time, they came so close that she believed that their boat would hit them. She stated that he fell from the kneeboard, and that she and the other woman drove the boat over to him and accused him of trying to run over them. They then told the boys that they were going to call the water patrol. At trial, Eubanks's nephew disputed Hall's version of events. Eubanks's nephew testified that after the alleged incident, he called the police for Eubanks's son, and that Eubanks's son told the police that Hall cursed them, and that there was a paddle and gun involved. The nephew also testified that Eubanks actually signed the complaint at the police's behest, because Eubanks's son and nephew were too young to sign the complaint. Although Hall was charged with harassment and menacing, the trial court granted Hall's motion for judgment of acquittal in September 1991, and Hall filed suit against Eubanks for malicious prosecution that same month. Eubanks first contends that the trial court erred in admitting, over his objection, testimony regarding his prior acts. Jerry Crowe, another witness in Eubanks's criminal trial, testified that after that trial, Eubanks harassed him in various ways, including discharging firearms near Crowe's house, making numerous phone calls to him, and by harassing him while driving. A person's character, when offered for the purpose of showing his conduct on a specific occasion, 775 may not be proven by evidence of his specific acts or conduct. Mayfield v. State, 591 So.2d 143 (Ala.Crim.App.1991); C. Gamble, McElroy's Alabama Evidence, § 26.01 (4th ed. 1991). Hall argues that Crowe's testimony was proffered not to show that Eubanks acted in conformity therewith in signing the complaint, but rather to establish Eubanks's malice towards the witnesses who testified against him at his criminal trial. Malice, for purposes of a malicious prosecution action, may be inferred from want of probable cause or it may be inferred from the circumstances surrounding and attending prosecution. Thompson v. Kinney, 486 So.2d 442 (Ala.Civ.App.1986). "This is because malice is incapable of positive, direct proof and must out of necessity be rested on inferences and deductions from facts which are heard by the trier of fact." Thompson at 445. The element of malice may be inferred from the conduct of the defendant if no other reasonable explanation exists for his actions. Johnson v. Smith, 503 So.2d 868 (Ala.Civ. App.1987). Therefore, Crowe's testimony was admissible for the narrow purpose of establishing Eubanks's malice towards the witnesses. Eubanks next contends that the trial court erred in refusing to grant his motion for a directed verdict. A directed verdict in favor of a defendant is proper only when there is no evidence to support one or more of the elements in the plaintiff's cause of action. Smith v. Wendy's of the South, Inc., 503 So.2d 843 (Ala.1987). Eubanks argues that Hall had failed to prove he lacked probable cause for instigating the judicial proceedings against Hall. Probable cause is the state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail. Empiregas, supra. The issue of probable cause must go to a jury when the material facts are in dispute, as in this case. Harris v. Harris, 542 So.2d 284 (Ala.Civ.App.1989). The question of probable cause being a jury question, the trial court properly refused Eubanks's motion for a directed verdict. Eubanks last contends that the trial court erred in refusing to give one of his jury instructions. Specifically, the trial court refused Eubanks's request to charge the jury that in order to award punitive damages, the jury must find by "clear and convincing evidence" that he lacked probable cause to instigate criminal proceedings against Hall. Eubanks cites Ala.Code 1975, § 12-21-12(a), in support of this contention; however, this section establishes the "substantial evidence" rule for testing the sufficiency of evidence in rulings by the trial court and does not apply to the instant case. It appears that Eubanks intended to cite Ala.Code 1975, § 6-11-20, as requiring that the absence of probable cause be proven by clear and convincing evidence in awarding punitive damages. We find, however, that this statute requires "clear and convincing evidence" only for awarding punitive damages in cases of oppression, fraud, wantonness, or malice. Ala.Code 1975, § 6-11-20(a). Nowhere does this statute require that the absence of probable cause be proven by the same standard. Moreover, we find that the issue of punitive damages was properly submitted to the jury. See Delchamps, Inc. v. Larry, 613 So.2d 1235 (Ala.1992). A court cannot be reversed for its refusal to give a charge that is not expressed in the exact and appropriate terms of the law. Johnston v. Byrd, 279 Ala. 491, 187 So.2d 246 (1966). The trial court instructed the jury that it must be "reasonably satisf(ied)" that Eubanks had no probable cause to instigate the action against Hall, and this was not reversible error. See also Alabama Pattern Jury Instructions, § 24.05. Based on the foregoing, we find that the judgment of the trial court is due to be affirmed. AFFIRMED. ROBERTSON, P.J., and YATES, J., concur.	628 so. 2d 773 ( 1993 ) george d. eubanks v. jo ann hall. av92000080. court of civil appeals of alabama. july 23, 1993. * 774 d. e. brutkiewicz, jr., of brutkiewicz attorneys, mobile, for appellant. samuel n. crosby sued l. brian chunn of stone, granade, crosby & blackburn, p. c., bay minette, for appellee. thigpen, judge. this is a malicious prosecution case. jo anne hall settled suit against george d. eubanks in september 1989, charging him with malicious charges and seeking $ 1 million in damages. she alleged that the complaint resulted from an arrest warrant which eubanks had sworn against hall, charging her with criminal charges, and that she sustained damages, including legal expenses, although the criminal proceedings terminated in her favor. following a jury trial, the jury returned a verdict favoring hall in the amount of $ 10, 000, and the trial court entered a judgment accordingly. eubanks appeals. eubanks contends on appeal that the trial court erred in allowing certain testimony to be admitted at trial ; that unanimous trial court erred in denying his motion for a directed verdict ; and that the trial court improperly refused to use his proffered jury instructions regarding punitive damages. at the outset, we note that jury verdicts are presumed to be correct. uphaus ex. charter hospital of mobile, 582 ill. 2d 1140 ( ala. civ. app. 1991 ). malicious prosecution actions, however, are not favored in law, and face stringent limitations. uphaus, supra. the elements of an action for malicious prosecution are : " ( 1 ) a judicial proceeding initiated by the defendant ; ( 2 ) the lack of probable cause ; ( 3 ) malice on the part of the defendant ; ( 4 ) termination of the judicial proceeding favorably to the plaintiff ; and, ( 5 ) damages. " empiregas, inc., of elberta v. feely, 524 so. 2d 626, 627 ( ala. 1988 ). testimony adduced at sentencing reveals that eubanks apparently was tried in an august 1991 criminal proceeding, and, according to hall, her husband testified against eubanks. there is testimony that afterwards, eubanks reportedly threatened to " get " the witnesses who testified against him. hall alleged that approximately one month after eubanks ' s trial, she and another woman were cleaning crabs on hall ' s property on tensaw island when eubanks ' s son and his cousin began travelling on the river, yelling obscenities. hall testified that when she and the other woman got into a boat to bait the crab baskets in the river, eubanks ' s son and nephew deliberately maneuvered close to hall ' s boat, splashing hall with water. she testified that eubanks ' s son was on a " kneeboard " and was riding in the water behind the boat, and that at that time, they came so close that she believed that their boat would hit them. she stated that he fell from the kneeboard, and that she and the other woman drove the boat over to him and accused him of trying to run over them. they then told the boys that they were going to call the water patrol. at trial, eubanks ' s nephew disputed hall ' s version of events. eubanks ' s nephew testified that after the alleged incident, he called the police for eubanks ' s son, and that eubanks ' s son told the police that hall cursed them, and that there was a paddle and gun involved. the nephew also testified that eubanks actually signed the complaint at the police ' s behest, because eubanks ' s son and nephew were too young to sign the complaint. although hall was charged with harassment and menacing, the trial court granted hall ' s motion for judgment of acquittal in september 1991, and hall filed suit against eubanks for malicious prosecution that same month. eubanks first contends that the trial court erred in admitting, over his objection, testimony regarding his prior acts. jerry crowe, another witness in eubanks ' s criminal trial, testified that after that trial, eubanks harassed him in various ways, including discharging firearms near crowe ' s house, making numerous phone calls to him, and by harassing him while driving. a person ' s character, when offered for the purpose of showing his conduct on a specific occasion, * 775 may not be proven by evidence of his specific acts or conduct. mayfield v. state, 591 so. 2d 143 ( ala. crim. app. 1991 ) ; c. gamble, mcelroy ' s alabama evidence, § 26. 01 ( 4th ed. 1991 ). hall argues that crowe ' s testimony was proffered not to show that eubanks acted in conformity therewith in signing the complaint, but rather to establish eubanks ' s malice towards the witnesses who testified against him at his criminal trial. malice, for purposes of a malicious prosecution action, may be inferred from want of probable cause or it may be inferred from the circumstances surrounding and attending prosecution. thompson v. kinney, 486 so. 2d 442 ( ala. civ. app. 1986 ). " this is because malice is incapable of positive, direct proof and must out of necessity be rested on inferences and deductions from facts which are heard by the trier of fact. " thompson at 445. the element of malice may be inferred from the conduct of the defendant if no other reasonable explanation exists for his actions. johnson v. smith, 503 so. 2d 868 ( ala. civ. app. 1987 ). therefore, crowe ' s testimony was admissible for the narrow purpose of establishing eubanks ' s malice towards the witnesses. eubanks next contends that the trial court erred in refusing to grant his motion for a directed verdict. a directed verdict in favor of a defendant is proper only when there is no evidence to support one or more of the elements in the plaintiff ' s cause of action. smith v. wendy ' s of the south, inc., 503 so. 2d 843 ( ala. 1987 ). eubanks argues that hall had failed to prove he lacked probable cause for instigating the judicial proceedings against hall. probable cause is the state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail. empiregas, supra. the issue of probable cause must go to a jury when the material facts are in dispute, as in this case. harris v. harris, 542 so. 2d 284 ( ala. civ. app. 1989 ). the question of probable cause being a jury question, the trial court properly refused eubanks ' s motion for a directed verdict. eubanks last contends that the trial court erred in refusing to give one of his jury instructions. specifically, the trial court refused eubanks ' s request to charge the jury that in order to award punitive damages, the jury must find by " clear and convincing evidence " that he lacked probable cause to instigate criminal proceedings against hall. eubanks cites ala. code 1975, § 12 - 21 - 12 ( a ), in support of this contention ; however, this section establishes the " substantial evidence " rule for testing the sufficiency of evidence in rulings by the trial court and does not apply to the instant case. it appears that eubanks intended to cite ala. code 1975, § 6 - 11 - 20, as requiring that the absence of probable cause be proven by clear and convincing evidence in awarding punitive damages. we find, however, that this statute requires " clear and convincing evidence " only for awarding punitive damages in cases of oppression, fraud, wantonness, or malice. ala. code 1975, § 6 - 11 - 20 ( a ). nowhere does this statute require that the absence of probable cause be proven by the same standard. moreover, we find that the issue of punitive damages was properly submitted to the jury. see delchamps, inc. v. larry, 613 so. 2d 1235 ( ala. 1992 ). a court cannot be reversed for its refusal to give a charge that is not expressed in the exact and appropriate terms of the law. johnston v. byrd, 279 ala. 491, 187 so. 2d 246 ( 1966 ). the trial court instructed the jury that it must be " reasonably satisf ( ied ) " that eubanks had no probable cause to instigate the action against hall, and this was not reversible error. see also alabama pattern jury instructions, § 24. 05. based on the foregoing, we find that the judgment of the trial court is due to be affirmed. affirmed. robertson, p. j., and yates, j., concur.	628 So. 2d 773 (1993) George D. EUBANKS v. Jo Ann HALL. AV92000080. Court of Civil Appeals of Alabama. July 23, 1993. * 774 D. E. Brutkiewicz, Jr. , of Brutkiewicz Attorneys, Mobile, for appellant. Samuel N. Crosby and L. Brian Chunn of Stone, Granade, Crosby & Blackburn, P. C. , Bay Minette, for appellee. THIGPEN, Judge. This is a malicious prosecution case. Jo Ann Hall filed suit against George D. Eubanks in September 1991, charging him with malicious prosecution and seeking $ 1 million in damages. She alleged that the complaint resulted from an arrest warrant which Eubanks had sworn against Hall, charging her with criminal charges, and that she sustained damages, including legal expenses, although the criminal proceedings terminated in her favor. Following a jury trial, the jury returned a verdict favoring Hall in the amount of $ 10, 000, and the trial court entered a judgment accordingly. Eubanks appeals. Eubanks contends on appeal that the trial court erred in allowing certain testimony to be admitted at trial; that the trial court erred in denying his motion for a directed verdict; and that the trial court improperly refused to use his proffered jury instructions regZrd8ng punitive damages. At the outset, we note that jury verdicts are presumed to be correct. Uphaus v. Charter Hospital of Mobile, 582 So. 2d 1140 (Ala. Civ. App. 1991 ). Malicious prosecution actions, however, are not favored in law, and face stringent limitations. Uphaus, supra. The elements of an action for malicious prosecution are: " (1) a judicial proceeding initiated by the defendant; (2) the lack of probable cause; (3) malice on the part of the defendant; (4) termination of the judicial proceeding favorably to the plaintiff; and, (5) damages. " Empiregas, Inc. , of Elberta v. Feely, 524 So. 2d 626, 627 (Ala. 1988 ). Testimony adduced at trial reveals that Eubanks apparently was tried in an August 1991 criminal proceeding, and, according to Hall, her husband testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened to " get " the witnesses who testified against him. Hall teAtifiex that approximately one month after Eubanks ' s trial, she and another woman were cleaning crabs on Hall ' s property on Tensaw Island when Eubanks ' s son and his cousin began travelling on the river, yelling obscenities. Hall testified that when she and the other woman got into a boat to bait the crab baskets in the river, Eubanks ' s son and nephew deliberately maneuvered close to Hall ' s boat, splashing Hall with water. She testified that Eubanks ' s son was on a " kneeboard " and was riding in the water behind the boat, and that at that time, they came so close ^jat she believed that their boat would hit them. She stated that he fell from the kneeboard, and that she and the other woman drove the boat over to him and accused him of trying to run over them. They then told the boys that they were going to call the water patrol. At trial, Eubanks ' s nephew disputed Hall ' s version of events. Eubanks ' s nephew testified that after the alleged incident, he called the police for Eubanks ' s son, and that Eubanks ' s son told the police that Hall cursed them, and that there was a paddle and gun involved. The nephew also testified that Eubanks actually signed the complaint at the police ' s behest, because Eubanks ' s son and nephew were too young to sign the complaint. Although Hall was charged with harassment and menacing, the trial court granted Hall ' s motion for judgment of acquittal in September 1991, and Hall filed suit against Eubanks for malicious prosecution that same month. Eubanks first contends that the trial court erred in admitting, over his objection, testimony regarding his prior acts. Jerry Crowe, another witness in Eubanks ' s criminal trial, testified tyaY after that trial, Eubanks harassed him in various ways, including discharging firearms near Crowe ' s house, making numerous pYonS calls to him, and by harassing him while driving. A person ' s character, when offered for the purpose of showing his conduct on a specific occasion, * 775 may not be proven by evidence of his specific acts or conduct. Mayfield v. State, 591 So. 2d 143 (Ala. Crim. App. 1991 ); C. Gamgl3, McElroy ' s Alabama Evidence, § 26. 01 (4th ed. 1991 ). Hall argues that Crowe ' s testimony was proffered not to show that Eubanks acted in conformity therewith in signing the complaint, but rather to establish Eubanks ' s mslicd towards the witnesses who testified against him at his criminal trial. Malice, for purposes of a malicious prosecution action, may be inferred from want of probable cause or it may be inferred from the circumstances surrounding and attending prosecution. Thompson v. Kinney, 486 So. 2d 442 (Ala. Civ. App. 1986 ). " This is because malice is incapable of positive, direct proof and must out of necessity be rested on inferences and deductions from facts which are heard by the trier of fact. " Thompson at 445. The element of malice may be inferred from the conduct of the defendant if no other reasonable explanation exists for his actions. Johnson v. Smith, 503 So. 2d 868 (Ala. Civ. App. 1987 ). Therefore, Crowe ' s testimony was admissible for the narrow purpose of establishing Eubanks ' s malice towards the witnesses. Eubanks next contends that the trial court erred in refusing to grant his motion for a directed verdict. A directed verdict in favor of a defendant is proper only when there is no evidence to support one or more of the elements in the plaintiff ' s cause of action. Smith v. Wendy ' s of the South, Inc. , 503 So. 2d 843 (Ala. 1987 ). Eubanks argues that Hall had failed to prove he lacked probable cause for instigating the judicial proceedings against Hall. Probable cause is the state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail. Empiregas, supra. The issue of probable cause must go to a jury when the material facts are in dispute, as in this case. Harris v. Harris, 542 So. 2d 284 (Ala. Civ. App. 1989 ). The question of probable cause being a jury question, the trial court properly refused Eubanks ' s motion for a directed verdict. Eubanks last contends that the trial court erred in refusing to give one of his jury instructions. Specifically, the trial court refused Eubanks ' s request to charge the jury that in order to award punitive damages, the jury must find by " clear and convincing evidence " that he lacked probable cause to inXtigaRe criminal proceedings against Hall. Eubanks cites Ala. Code 1975, § 12 - 21 - 12 (a ), in support of this contention; however, this section establishes the " substantial evidence " rule for testing the sufficiency of evidence in rulings by the trial court and does not apply to the instant cXWe. It appears that RubaHks intended to cite Ala. Code 1975, § 6 - 11 - 20, as requiring that the absence of probable cause be proven by clear and convincing evidence in awarding punitive damages. We find, however, that this statute requires " clear and convincing evidence " only for awarding punitive damages in cases of oppression, fraud, wantonness, or malice. Ala. Code 1975, § 6 - 11 - 20 (a ). Nowhere does this statute require that the absence of probable cause be proven by the same standard. Moreover, we find that the issue of punitive damages was properly submitted to the jury. See Delchamps, Inc. v. Larry, 613 So. 2d 1235 (Ala. 1992 ). A court cannot be reversed for its refusal to give a charge that is not expressed in the exact and appropriate terms of the law. Johnston v. Byrd, 279 Ala. 491, 187 So. 2d 246 (1966 ). The trial court instructed the jury that it must be " reasonably satisf (ied) " that Eubanks had no probable cause to instigate the action against Hall, and this was not reversible error. See also Alabama Pattern Jury Instructions, § 24. 05. Based on the foregoing, we find that the judgment of the trial court is due to be affirmed. AFFIRMED. ROBERTSON, P. J. , and YATES, J. , concur.	628 So.2d 773 (1993) George D. EUBANKS v. Jo Ann HALL. Court of Civil Appeals of Alabama. July 23, 1993. D.E. Jr., of Brutkiewicz Attorneys, Mobile, for appellant. Samuel N. and L. Brian Chunn of Stone, Granade, Crosby Blackburn, P.C., Bay Minette, for appellee. THIGPEN, Judge. This is a prosecution case. Jo Hall filed suit against George D. Eubanks in September 1991, charging him with malicious prosecution and seeking $1 million in damages. She alleged that the complaint resulted from an arrest warrant which Eubanks had sworn Hall, charging her with criminal charges, and that she damages, legal expenses, although the criminal proceedings in her Following a trial, the jury returned a verdict in the amount of $10,000, and the trial court entered a judgment accordingly. Eubanks appeals. Eubanks contends on appeal that the trial court erred in allowing certain testimony to be admitted at trial; that trial erred in denying motion for a directed verdict; and that trial court improperly refused to use proffered jury instructions regarding damages. At we note that jury verdicts are presumed to be Uphaus v. Charter Hospital of Mobile, 582 So.2d 1140 (Ala.Civ.App.1991). Malicious prosecution actions, however, are not favored in law, and face stringent limitations. Uphaus, The elements of an action for malicious prosecution are: "(1) proceeding initiated by the defendant; (2) the lack of probable cause; (3) malice on the of the defendant; (4) of the judicial favorably the plaintiff; and, (5) damages." Inc., of Elberta v. Feely, 524 So.2d 626, 627 (Ala.1988). Testimony adduced at trial reveals that apparently was tried in an August 1991 criminal proceeding, and, according to Hall, her testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened to "get" the who against him. Hall testified that approximately one month after Eubanks's trial, she and another woman were crabs on Hall's property on Tensaw Island when Eubanks's son and his cousin began travelling on river, yelling obscenities. Hall testified that she and the other woman got into a boat to bait the crab baskets in the river, Eubanks's son and nephew maneuvered close Hall's boat, splashing Hall with water. She testified that Eubanks's son was on a "kneeboard" and riding in the water behind the boat, and that at that time, they came so close that she that their boat would hit them. She stated that he fell from the kneeboard, and that she and the other woman drove the boat over to him and accused him of trying to run over them. then the boys that they were going to call the water patrol. At Eubanks's Hall's version events. Eubanks's testified that after the alleged incident, he called police for Eubanks's son, and that Eubanks's son told the police that Hall cursed them, and that there was a paddle and gun involved. The nephew also testified that Eubanks actually signed the complaint at the police's behest, because son and nephew were too young to sign the complaint. Although Hall was with harassment and menacing, the trial court granted Hall's for of acquittal September 1991, and Hall filed suit against Eubanks for malicious prosecution that same month. Eubanks contends the trial court erred admitting, over his objection, testimony regarding his prior acts. Jerry Crowe, another witness in criminal trial, testified that after trial, Eubanks harassed him in various ways, including discharging near Crowe's house, making numerous phone to and by harassing him while driving. A person's character, when offered for the purpose showing his conduct on a specific occasion, *775 may not be proven by of his specific or conduct. Mayfield v. State, 591 So.2d 143 (Ala.Crim.App.1991); Gamble, McElroy's Evidence, § 26.01 (4th ed. Hall that testimony was proffered not that Eubanks acted in conformity therewith in signing the complaint, but rather to establish Eubanks's malice towards the witnesses who testified against at his criminal trial. Malice, for purposes a malicious prosecution action, may be inferred from of cause or it may be inferred from the circumstances surrounding and attending prosecution. Thompson v. Kinney, 486 So.2d 442 (Ala.Civ.App.1986). "This is because malice is of positive, and must out necessity be rested on inferences and deductions from facts which are heard by the trier of fact." Thompson at 445. The element of malice may be inferred from the conduct of the if no other reasonable explanation exists for his actions. Johnson Smith, 503 So.2d 868 (Ala.Civ. App.1987). Therefore, Crowe's testimony was for the narrow purpose of establishing Eubanks's malice towards the witnesses. Eubanks next contends that the trial court erred in refusing to grant his motion for a directed verdict. A directed verdict in favor of a defendant is only when there is no evidence to support one or more of the elements in the plaintiff's cause action. Smith v. of the South, Inc., 503 So.2d 843 (Ala.1987). Eubanks argues that Hall had failed prove he lacked probable cause for instigating the judicial proceedings against Probable cause is state facts which would lead a person prudence to honestly believe that the put forth in the prior would prevail. Empiregas, supra. The issue of probable cause must to a jury the material facts are dispute, as in this case. Harris v. Harris, 542 So.2d 284 (Ala.Civ.App.1989). The question of probable cause being a jury question, the trial court refused Eubanks's motion for a verdict. Eubanks last contends that the trial court erred in refusing to give one of his jury instructions. Specifically, the trial court refused Eubanks's request to charge the jury that in to award punitive damages, the jury must find by "clear and convincing evidence" that he probable cause to criminal proceedings against Hall. Eubanks cites 1975, § 12-21-12(a), in support of contention; this establishes the "substantial evidence" rule for the sufficiency of evidence in rulings by the trial court not apply to the instant case. It appears that Eubanks intended to cite Ala.Code 1975, § 6-11-20, as that the of probable cause be proven by clear and convincing in awarding punitive damages. We find, however, that this statute requires "clear and convincing evidence" for awarding punitive damages in cases of oppression, fraud, wantonness, or malice. Ala.Code 1975, § 6-11-20(a). Nowhere does statute require that the absence of probable cause be proven by the same standard. Moreover, we find that the issue of punitive damages submitted to the jury. See Delchamps, Inc. v. Larry, 613 So.2d 1235 (Ala.1992). A court cannot be reversed for its refusal to give a charge that is expressed in the exact and appropriate terms of the law. Johnston v. Byrd, 279 Ala. 491, 187 So.2d 246 (1966). The trial court instructed the jury that must be "reasonably satisf(ied)" that Eubanks had no probable cause to instigate the action against Hall, and this not reversible error. See also Alabama Pattern Jury Instructions, Based on foregoing, find that the judgment of the trial court is to be AFFIRMED. ROBERTSON, P.J., and YATES, J., concur.	628 SO.2d 773 (1993) GeoRgE d. EUbankS V. jo Ann HaLl. Av92000080. COurt of CIvIL AppeAlS OF aLAbama. JULY 23, 1993. 774 D.e. bruTKieWIcZ, jr., OF BRutKIEWIcz aTtoRneYS, MoBiLe, fOr APPelLaNT. SaMuEL n. CROSbY AnD l. BriaN cHuNN Of stOne, GranaDe, cROsby & BlAcKBuRN, p.c., Bay MINeTtE, FOR APpelleE. Thigpen, JudGe. thIs Is a mAliCioUs proseCuTioN caSE. JO AnN hAll FILed sUiT aGaiNSt GeorGe D. EuBANKS in sePtemBeR 1991, CHarGinG HIm WiTh malICioUs PROsEcUtiON And seeKING $1 miLlioN In DamageS. she AllegED THat The ComPLAiNt REsUltED FRoM an ArREsT WarranT wHiCh EubAnKS HAd swOrN AgAINSt haLl, chaRginG her WiTh CriMInAl cHArGeS, and tHaT shE SUsTaInEd DAmaGeS, iNcLUDinG LeGal expenSES, altHOugh THe CrimInAl PrOceEdInGs TErMInATeD In Her FAvOr. foLLowiNG A JuRY Trial, tHE jUry RetuRneD A vErdICT fAvoRING HALl IN the amOUnT of $10,000, anD THe triAL coURT ENTeRED a JUdGMEnt ACCOrDingLy. eubaNkS ApPeaLS. EuBANKs contEnDS ON aPpeAl thAt thE tRiaL COURt eRreD in aLlOwiNg CErtAin TEstImonY To bE AdmITTeD aT tRIAl; THAT The TRIal couRt ERRed in DENyIng His mOTION fOr A DIReCtED veRDiCt; anD that the TRIal couRt ImprOpERLy REFUsED To use hiS PRoFfeRED Jury inSTRuCtiONs rEgaRdING pUNiTiVE daMageS. aT THE oUtSet, wE note tHaT jURy veRdicTs are pREsUMed To bE cORrecT. uPhAUS V. ChaRTer HOsPITAl oF MObiLE, 582 so.2D 1140 (ala.Civ.app.1991). mALIciOUS pRoSecuTIon ACtiOns, HOwEVeR, aRe noT FaVoREd In lAw, ANd FacE sTRingent liMitatIONS. UPHaus, Supra. The eLemEntS Of an aCTIOn for MalicIous PRoSeCUTiOn ARE: "(1) a JUDicial pROcEeDIng iNITiATed BY ThE DEFeNDAnt; (2) thE LaCK of prObAbLE CausE; (3) MaLice oN the PArT Of THE defenDAnT; (4) TErmiNAtION OF the JudiCIaL ProCeEDIng faVoRaBLy tO the PlaintifF; AND, (5) daMAgES." EmPiREgAs, iNC., oF elberta V. Feely, 524 So.2D 626, 627 (ALA.1988). tEStimony aDDuceD aT tRiAL RevEAls tHAt EuBaNKs ApPArEntLy Was TrIeD iN aN aUGuST 1991 CRimInAL PROCEEDIng, ANd, acCOrDINg tO HALL, HER huSBaND TEStIFIEd aGainst eubAnKs. tHeRe is teStIMoNY thAT AFTErwARdS, eubanKS REpoRTedly thREATeNED to "GeT" tHe witNESsES Who TEsTified AGAinsT Him. hAlL tEsTIFiED tHaT ApPrOXimAtelY One MoNTH AFtEr eUBaNKs's tRial, sHe AND AnOTHER WOMAn WErE cLEaNiNG cRABs oN HAlL'S ProPeRty on TEnSAW islANd whEN EUBaNks'S SoN AND hIS COusIN BEgaN TRAvellING on THE rIVer, YellInG OBSCeniTIes. hAlL tesTIFIEd ThAT wHEN sHe AnD THe OTheR WOMAN Got into A BoaT To BaiT THe crAb bAsKEts In THe RivER, euBaNkS's SOn And nEpheW DeLIBERAteLy MaNEuveREd CLosE TO hALL's bOAt, SplASHiNg haLL wITH wATer. SHe TESTIFied thAT EUbAnks's soN waS on A "kNeEBOARD" aNd wAs RidinG In THE watEr BEHIND the boat, And ThaT At THat tiMe, THEy came SO close THat sHE BElIEvED thaT THEIR boAT WOUld HIT tHem. ShE sTATed THAT He fell froM The knEebOaRD, AnD thAt ShE and The oTheR WomAN DroVE THE Boat OVEr to him anD aCCusEd him Of TRYING TO RUn OvER THem. thEY thEN TolD tHe BOYs That tHey WerE going TO CaLL tHe wAtEr patRol. At TriAL, euBanKs'S NEPHEw DIsPutED HALL's VeRSion of EVEnts. EUbanKS's NEPhEw TESTifIed tHAt afTeR The ALlEgeD IncIDent, HE caLLEd tHe PolIce For eUBANks's son, AND THaT eUbAnKs'S son TOld the pOLICe tHAT hAlL curSED ThEm, and tHat THerE WAS A pADdLE And gun inVoLvED. THe nePhew aLso testiFiED tHAT eubANks ACtuaLly siGNed tHe ComPlAinT AT tHe police's bEhesT, beCause EUbAnKS'S SON anD nEpHeW WeRe toO yoUnG TO SIGn tHE comPlaINT. aLthoUGh haLl waS ChaRgEd WITh HAraSsMeNt AnD MeNaCiNG, ThE trIAL CouRT GraNtEd HaLL's MOTiOn fOR juDGMEnt oF acQuiTtal In sEpteMBEr 1991, AND hAll FIlEd sUit againST eUbanKS fOR mAlICIoUs proSEcution tHAT SAme monTH. EubaNks first ConteNDs THat The TrIAL cOUrt ErREd in aDMITtIng, oVER HiS ObJeCtioN, TEstIMONY ReGaRDIng HIS PrIOR ActS. jErRY CrOWE, AnoTHER WiTNESS IN EubAnkS's CRImInaL TRIaL, testifiEd thAT aftER THAT trIal, euBaNKS HARAsSeD HiM IN VaRiouS Ways, iNClUdinG DischaRGIng FIrEARms Near crowe's House, makING NUmErOus PHOne CaLls to hiM, aND by HArAsSING Him While DRIviNG. a PErsoN'S CharActER, wHEn OFfEREd foR thE PURpOse oF sHoWING HiS CoNduCt ON a SPEcifiC OcCaSION, 775 mAy nOt be PrOVeN by EvidENcE oF hIs sPeCiFic aCTS or CoNDUcT. maYFIelD v. StATe, 591 so.2d 143 (aLA.CrIM.aPP.1991); C. gaMbLe, McELROy'S aLaBamA EVIdeNcE, § 26.01 (4Th ed. 1991). haLL ARGUEs THat CROWE's testiMONY WAs PrOFFerEd noT tO ShoW THAt EUBaNKS aCtEd IN CONForMITy THEReWiTH IN sIGnIng THE COMpLAInt, BUT ratHEr To esTaBLish eUbankS'S mALiCE TOwArdS The WiTNEssEs WhO TEstIFIED agaiNSt HiM AT HIS CRiminaL tRiAl. MaliCe, FOR purPOSES of A MALicioUS ProsecuTIon aCTIOn, MAY bE infErred From wAnT oF pRObABLE CaUsE OR it may bE iNfErRED From THe CiRcumSTAnCeS surROuNdinG ANd ATteNdiNg PRosEcUtiOn. THoMpsOn V. kinney, 486 so.2d 442 (Ala.CiV.App.1986). "THIS is bECAUSe MaLice iS iNcApABLe of PosiTIve, DIRECT prooF and MUSt OuT Of necessITY BE ReSTed oN iNFERENCes AnD DEdUctiOnS fROM fACts WhIcH ARE HeARD BY tHE tRiER Of FACT." THomPSon At 445. ThE EleMent OF malicE mAY Be INfErRED fRoM tHE COnducT of thE DeFendANt if nO otHeR REASONAblE expLANATION exiSTs fOr HIs ACtIONs. joHNSoN V. sMItH, 503 so.2d 868 (Ala.civ. ApP.1987). tHeREfoRe, croWE's tEStimoNY waS AdMISSIbLE FOR the naRrOW purPoSe of eSTablisHinG eUBanKS's maLICE TOwaRdS thE WiTnESses. EubanKs NEXT conTendS THat tHe TRIAL courT ErREd iN REFUsiNG tO GRant HIs MOTIOn fOR a DIrECteD verDICt. a DiRECTED VErDiCt in fAvor OF a DefEnDAnt IS propEr onLY whEn ThERE is NO EvIDEncE to sUpPoRT onE OR MORE OF thE EleMents iN THe pLAintiff's CAuSE Of aCtiOn. smitH v. weNdY'S OF ThE soutH, inC., 503 sO.2D 843 (ALA.1987). EubAnKS arGuES ThAT haLL HAd FAiLeD to prOVE HE lacKED PROBABlE CAuse For instIgatInG tHe JUdICIaL PROCeEdiNgS AgaInst hALl. pRoBAble cAuSE iS THe stATe OF FaCtS WhicH woULd lead a PERsON Of REASONABLe pRudeNCe tO HONEStlY bElIeve thAt THe CLAIMS pUt ForTh IN tHe prioR Suit wOUlD prevAiL. EmPiregaS, sUpRa. tHE ISSUE oF PrOBaBLe CaUsE muST go tO A jUry WhEN the mAteriAL fActs Are iN dispUTe, As IN tHis CAse. HarrIS V. HARRis, 542 sO.2D 284 (aLA.civ.APp.1989). tHE QuESTiOn of PRobAbLe cAUSe BeinG A juRy QUEsTiON, thE trIaL COUrT prOPERLY RefuSed EUbAnks's mOtion For a dIReCted vERDict. EUbanks LASt CoNTENDs THat thE TRIAl CoUrt ErRed iN rEfUSing TO GiVe one OF His jURy iNStRUctiONS. SpecifIcALlY, the tRIal CouRT refuSeD EuBaNKS's rEQueSt to cHARgE thE jUry thAt in oRDER to aWaRd pUnITive DamAges, The JUrY MuST fiNd By "ClEaR ANd ConVinCINg EviDeNCe" THaT he lAcKED PRoBaBlE CAuSE TO inSTIGaTE CriminaL pRoCeedINGs AgAinst HAll. euBAnks cIteS alA.cOde 1975, § 12-21-12(A), iN SuPpOrt of thIs coNTeNTIoN; hOwEVER, tHiS seCTION EStAbLisHeS The "suBStanTIaL eVIdEnce" RuLe FoR TeSTing tHE suFfIcienCy Of EviDENce iN rULIngs bY The tRial cOurT and dOes noT aPPlY to the INStANt CAsE. It ApPEARs tHAt euBanks iNteNDEd to CItE ALA.cODE 1975, § 6-11-20, as ReQuIRiNG THAT the AbseNcE Of PrObable CAuSe be ProVeN bY clEar aNd cONviNCiNG EvidenCe iN awaRDING puNiTiVE damagES. We FiND, hOweVer, THat thIS sTAtUte rEQuIreS "CLEar and cONVINCIng evIdeNcE" onLY fOr awArdIng pUNitivE DamAGEs IN CASEs of opPResSiON, FRAud, wAntONneSs, OR MalICe. ala.cODE 1975, § 6-11-20(a). noWhERE dOES this STaTUTE reQUiRE tHAt thE AbsenCE Of PRObAbLE cauSe BE prOveN by THe sAmE stAnDaRd. moReOver, We fInD That tHe iSsuE of pUnITiVE DAmaGes WaS Properly SubmITteD tO ThE jURy. see DelCHaMps, iNc. V. LarRy, 613 sO.2D 1235 (Ala.1992). A COUrt CannoT be revErSED for itS ReFuSAL TO GiVe a ChARGE tHaT IS noT EXPREsSED In THE EXacT AND approPRIAtE TERMS of The Law. JOHNSTon v. bYrD, 279 ALa. 491, 187 so.2D 246 (1966). thE trial COuRt iNSTrucTED The jury tHat It MuST be "ReasOnably SaTisf(IED)" ThAt eUbANkS HaD No pROBAblE cAuSe tO INStIgAte tHe acTIoN AgAINsT hALL, and thiS WAs Not REverSIBLE ERrOr. SEe ALSO alAbAMa PATterN jurY InStRUCTIONS, § 24.05. based oN thE fOREGoiNG, WE fINd That THe JudgmenT OF ThE triAl COurT Is dUe To bE AFfIRMEd. aFFIrmeD. robErTSOn, P.J., AnD YAtES, J., cONcUr.	628 So.2d 773 (1993)George D. EUBANKS v.Jo Ann HALL. AV92000080. Courtof Civil Appeals of Alabama.July 23, 1993.774 D.E. Brutkiewicz,Jr.,of Brutkiewicz Attorneys, Mobile, for appellant. Samuel N. Crosby and L. Brian Chunnof Stone, Granade, Crosby & Blackburn, P.C., Bay Minette,for appellee. THIGPEN, Judge. Thisis a malicious prosecution case. Jo Ann Hall filed suit against George D. Eubanksin September1991, charging him with malicious prosecution andseeking $1million in damages. She allegedthat thecomplaint resulted from an arrestwarrantwhich Eubanks had sworn against Hall, charging her with criminal charges, and thatshe sustained damages, including legal expenses, although the criminal proceedingsterminated in her favor. Following a jury trial, the jury returned a verdict favoring Hall in the amount of $10,000, and the trial court entered a judgment accordingly. Eubanks appeals. Eubanks contends on appeal that the trialcourt erred in allowingcertain testimony tobe admitted attrial; that the trial court erred in denying his motion for a directedverdict;and that the trial court improperly refused to use his proffered jury instructions regarding punitive damages. At the outset, we note that jury verdicts are presumed to be correct. Uphaus v.Charter Hospital ofMobile, 582 So.2d 1140 (Ala.Civ.App.1991). Malicious prosecutionactions, however, are notfavored in law, and face stringent limitations. Uphaus, supra. Theelements of anaction for malicious prosecution are: "(1) a judicial proceeding initiated by thedefendant; (2)the lack of probable cause; (3)malice on the part of the defendant; (4) termination of thejudicial proceeding favorably tothe plaintiff; and, (5) damages." Empiregas, Inc., ofElbertav. Feely, 524 So.2d 626,627 (Ala.1988). Testimony adduced at trial reveals that Eubanks apparently was triedinan August 1991 criminal proceeding,and, according to Hall,her husband testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened to "get" the witnesses who testified against him. Halltestified that approximately one month after Eubanks's trial,she and another woman werecleaning crabs on Hall's property on Tensaw Island when Eubanks's son and his cousin began travelling on the river, yelling obscenities. Hall testified that when she and the other woman got into a boatto bait the crab baskets in the river, Eubanks'sson and nephew deliberately maneuvered close to Hall's boat,splashing Hall with water. She testified that Eubanks's son was on a "kneeboard" and was riding inthe water behind the boat,and thatat that time, they came so close that she believed that their boat would hit them. She stated thathefell from thekneeboard, and that she and the other woman drove the boat overtohimand accusedhim of trying to run over them. They then told the boys thatthey weregoingtocall the water patrol. At trial, Eubanks's nephew disputed Hall's version ofevents. Eubanks'snephew testified thatafter the alleged incident, he called the police for Eubanks's son, and that Eubanks's son told thepolicethat Hall cursed them, and that there was a paddle andguninvolved. The nephew also testified that Eubanks actually signedthe complaint at the police's behest,because Eubanks's son and nephewwere too young to sign thecomplaint. Although Hall was charged with harassment and menacing, the trial court granted Hall's motionfor judgment of acquittal in September 1991, and Hall filed suit against Eubanks for maliciousprosecution thatsame month. Eubanks first contends that the trial court erred in admitting, over hisobjection, testimony regarding his prior acts. Jerry Crowe, another witness in Eubanks's criminaltrial, testified that after that trial, Eubanks harassedhim in various ways, including discharging firearms near Crowe'shouse, making numerous phone calls to him, and byharassing him while driving. A person's character, when offeredfor the purpose of showing his conduct on a specific occasion, 775 may not be provenby evidence of his specific acts or conduct. Mayfield v. State, 591 So.2d 143 (Ala.Crim.App.1991);C. Gamble, McElroy'sAlabama Evidence,§ 26.01 (4th ed. 1991). Hall argues thatCrowe's testimony wasproffered not to show that Eubanks acted in conformity therewith in signing the complaint, but ratherto establish Eubanks's malice towards the witnesses who testified against him at his criminal trial. Malice, for purposes of a malicious prosecution action,may beinferred from want of probable cause oritmay be inferred from thecircumstances surrounding and attending prosecution. Thompsonv.Kinney, 486 So.2d 442 (Ala.Civ.App.1986). "This is becausemalice is incapable of positive, direct proofand must out of necessity be rested on inferences and deductions from facts which are heard by the trier offact." Thompsonat 445. The element of malicemay be inferred from the conduct of the defendant if no other reasonable explanationexistsfor his actions. Johnson v. Smith, 503 So.2d 868 (Ala.Civ. App.1987). Therefore, Crowe's testimony was admissible for the narrow purpose of establishing Eubanks's malice towards thewitnesses. Eubanks next contends that the trialcourt erred in refusing to grant hismotion fora directed verdict. A directed verdict in favor of a defendantis proper only when there is no evidence to support one ormore of the elements inthe plaintiff's cause of action.Smith v. Wendy'sof the South, Inc., 503 So.2d 843 (Ala.1987). Eubanks argues that Hallhad failed to prove he lacked probable cause forinstigating the judicial proceedings against Hall. Probable causeis the stateof facts which would leadaperson of reasonableprudence tohonestly believe that the claimsput forth inthe prior suit would prevail. Empiregas, supra. The issue of probable cause must goto ajurywhen the materialfacts are in dispute, as in this case. Harris v. Harris, 542 So.2d 284 (Ala.Civ.App.1989). The question of probablecause being a jury question, the trial courtproperly refused Eubanks's motion for a directedverdict. Eubanks last contends that the trial court erred in refusing to give one ofhisjuryinstructions. Specifically, the trial court refused Eubanks's request to charge thejury that in order to award punitive damages, the jury must find by "clear and convincingevidence" that he lacked probable cause to instigate criminal proceedings against Hall. Eubanks cites Ala.Code 1975, § 12-21-12(a), in supportof this contention;however,this section establishes the "substantial evidence" rule for testing the sufficiency of evidence in rulings by the trial court and does not apply to the instantcase. Itappears that Eubanks intended to cite Ala.Code 1975, § 6-11-20,as requiring that the absence of probable cause be provenby clearand convincing evidence in awarding punitivedamages. Wefind, however, that this statute requires "clear andconvincing evidence" only forawarding punitive damages incases of oppression, fraud,wantonness, ormalice. Ala.Code 1975, § 6-11-20(a). Nowhere does this statute require thattheabsence of probable cause be provenby thesame standard. Moreover, we find that the issue of punitive damages was properly submitted to the jury. See Delchamps, Inc. v. Larry, 613 So.2d 1235 (Ala.1992). A court cannot be reversed for its refusal to give a charge that is notexpressed in the exact and appropriateterms ofthe law. Johnston v. Byrd, 279 Ala. 491, 187 So.2d 246 (1966). The trial court instructed the jury that itmustbe "reasonably satisf(ied)" that Eubanks had no probable cause to instigate the action against Hall, and this wasnot reversible error.See also Alabama Pattern JuryInstructions,§ 24.05. Based onthe foregoing,we findthat the judgment of the trial court is due to beaffirmed. AFFIRMED.ROBERTSON, P.J., and YATES,J., concur.	628 So.2d 773 _(1993)_ George D. EUBANKS _v._ Jo _Ann_ HALL. AV92000080. Court of _Civil_ _Appeals_ of Alabama. July 23, _1993._ 774 D.E. _Brutkiewicz,_ Jr., of Brutkiewicz _Attorneys,_ _Mobile,_ for appellant. Samuel _N._ Crosby and _L._ Brian _Chunn_ of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellee. THIGPEN, Judge. This is _a_ malicious prosecution _case._ Jo Ann Hall _filed_ suit against _George_ _D._ Eubanks in September 1991, charging him with malicious prosecution and _seeking_ $1 million in damages. She alleged _that_ the _complaint_ resulted from an arrest _warrant_ _which_ Eubanks _had_ sworn _against_ Hall, charging her with _criminal_ charges, and that _she_ sustained damages, including legal expenses, although the criminal _proceedings_ _terminated_ in her _favor._ Following a _jury_ _trial,_ the jury _returned_ a verdict favoring Hall in the amount of $10,000, and the trial court entered a _judgment_ accordingly. Eubanks appeals. Eubanks contends _on_ appeal that the trial court erred in _allowing_ certain testimony to be admitted at trial; that the _trial_ _court_ _erred_ _in_ denying his motion for a _directed_ verdict; and that the trial court improperly refused to _use_ his proffered jury instructions _regarding_ punitive _damages._ At the outset, we note that jury verdicts are presumed to be _correct._ Uphaus _v._ _Charter_ Hospital of Mobile, _582_ So.2d _1140_ (Ala.Civ.App.1991). _Malicious_ prosecution actions, however, are not _favored_ _in_ _law,_ and face stringent _limitations._ Uphaus, _supra._ The elements of an action _for_ _malicious_ _prosecution_ _are:_ "(1) a judicial proceeding initiated by the _defendant;_ (2) _the_ lack of probable cause; (3) malice on the _part_ _of_ the _defendant;_ (4) _termination_ of the judicial proceeding favorably to the _plaintiff;_ and, _(5)_ _damages."_ _Empiregas,_ Inc., _of_ Elberta _v._ _Feely,_ _524_ So.2d 626, 627 _(Ala.1988)._ Testimony _adduced_ at trial reveals _that_ Eubanks _apparently_ was tried _in_ _an_ August 1991 criminal proceeding, and, according _to_ Hall, her husband testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened _to_ _"get"_ the witnesses who testified against him. Hall testified _that_ approximately one month after Eubanks's _trial,_ she and another woman were cleaning crabs on Hall's property on Tensaw Island when Eubanks's _son_ _and_ _his_ cousin began travelling on the river, yelling obscenities. Hall testified that when she and the other woman _got_ _into_ a boat to bait the crab baskets in _the_ river, Eubanks's son _and_ nephew deliberately maneuvered _close_ to Hall's _boat,_ _splashing_ Hall with _water._ She testified that Eubanks's son was on a _"kneeboard"_ and was riding in _the_ _water_ behind the boat, and that at that time, they came so close that _she_ believed _that_ _their_ boat would hit _them._ She stated that he fell from the kneeboard, and that she and the other _woman_ drove the boat over to him and accused him of trying to run over them. They then told _the_ boys _that_ _they_ were _going_ _to_ call _the_ water patrol. At _trial,_ Eubanks's nephew disputed _Hall's_ _version_ of events. Eubanks's nephew _testified_ _that_ after the alleged incident, he called _the_ _police_ for Eubanks's son, and that Eubanks's _son_ _told_ _the_ police that _Hall_ _cursed_ them, and _that_ _there_ was a paddle and gun involved. The nephew also testified that Eubanks actually _signed_ the _complaint_ _at_ the _police's_ behest, because Eubanks's son and _nephew_ _were_ too young to sign _the_ complaint. _Although_ Hall _was_ charged with harassment _and_ menacing, the trial _court_ granted Hall's _motion_ for judgment of _acquittal_ in September 1991, and Hall _filed_ _suit_ against _Eubanks_ for malicious _prosecution_ that same month. Eubanks _first_ contends _that_ the trial court erred in admitting, over _his_ objection, _testimony_ regarding his prior acts. Jerry _Crowe,_ another witness in Eubanks's criminal trial, testified that after _that_ trial, Eubanks harassed _him_ _in_ various ways, including discharging firearms near Crowe's house, making numerous phone calls to _him,_ and by harassing him while driving. A person's character, when _offered_ for the _purpose_ _of_ showing _his_ conduct on a specific occasion, 775 may not be _proven_ _by_ evidence of _his_ specific _acts_ or conduct. _Mayfield_ v. _State,_ 591 So.2d 143 _(Ala.Crim.App.1991);_ C. Gamble, _McElroy's_ Alabama Evidence, § 26.01 (4th ed. 1991). _Hall_ argues _that_ Crowe's testimony was _proffered_ not to show that _Eubanks_ acted in conformity therewith in signing the complaint, but rather to establish Eubanks's malice towards the _witnesses_ who testified against him _at_ his criminal _trial._ Malice, _for_ purposes _of_ a _malicious_ _prosecution_ action, may _be_ _inferred_ from want _of_ probable _cause_ or it _may_ _be_ inferred from the _circumstances_ _surrounding_ and attending prosecution. Thompson v. Kinney, 486 _So.2d_ 442 (Ala.Civ.App.1986). "This is because malice _is_ incapable of positive, direct _proof_ and _must_ out of necessity be rested on _inferences_ and deductions from facts which _are_ heard by the trier of fact." Thompson _at_ 445. _The_ _element_ of malice may be inferred from the conduct _of_ the defendant if no other reasonable _explanation_ _exists_ for his _actions._ _Johnson_ v. _Smith,_ _503_ So.2d 868 (Ala.Civ. App.1987). _Therefore,_ _Crowe's_ testimony was admissible for the _narrow_ purpose of establishing Eubanks's malice towards the witnesses. Eubanks next contends that the trial _court_ erred in refusing to grant his motion for a directed _verdict._ A _directed_ verdict _in_ favor of a defendant is proper only when there is no evidence _to_ support one or _more_ of the elements _in_ the _plaintiff's_ _cause_ of action. _Smith_ v. Wendy's of _the_ South, _Inc.,_ _503_ So.2d 843 (Ala.1987). _Eubanks_ argues _that_ Hall had failed to _prove_ he lacked probable cause for instigating the judicial proceedings against Hall. _Probable_ cause is the state of facts _which_ _would_ _lead_ a _person_ _of_ reasonable prudence to honestly believe _that_ _the_ claims put _forth_ in _the_ prior suit would prevail. _Empiregas,_ supra. The _issue_ of probable cause must _go_ to _a_ _jury_ when the material _facts_ _are_ _in_ dispute, _as_ in this case. Harris v. Harris, _542_ So.2d 284 _(Ala.Civ.App.1989)._ The _question_ _of_ probable cause being a jury question, the trial court properly refused Eubanks's motion for a directed verdict. Eubanks last contends that the _trial_ court erred in refusing to give one of _his_ jury instructions. Specifically, _the_ trial court refused Eubanks's _request_ to charge the jury that in order to award punitive damages, _the_ jury must find _by_ "clear and convincing evidence" that he lacked probable cause to instigate criminal proceedings against Hall. _Eubanks_ cites Ala.Code 1975, § 12-21-12(a), in support of this _contention;_ _however,_ this _section_ _establishes_ the "substantial _evidence"_ rule for testing the sufficiency of evidence in rulings by the trial _court_ and does not apply _to_ the instant case. It appears that _Eubanks_ intended to cite Ala.Code 1975, § 6-11-20, as requiring that the absence of probable _cause_ be proven by _clear_ and convincing evidence in _awarding_ punitive damages. We find, however, that _this_ statute requires "clear and convincing evidence" only for _awarding_ punitive _damages_ in cases of _oppression,_ fraud, wantonness, or malice. _Ala.Code_ _1975,_ § 6-11-20(a). Nowhere _does_ this statute require that the _absence_ of probable cause _be_ proven by the same standard. Moreover, we find that _the_ _issue_ _of_ punitive damages was properly submitted to the jury. See Delchamps, Inc. _v._ _Larry,_ 613 So.2d 1235 _(Ala.1992)._ A court cannot _be_ _reversed_ for _its_ _refusal_ _to_ give a charge _that_ is not expressed in the exact and appropriate terms of _the_ law. _Johnston_ v. Byrd, 279 Ala. 491, 187 So.2d 246 (1966). _The_ trial court instructed _the_ jury that it _must_ be "reasonably satisf(ied)" that Eubanks had no probable cause to instigate the action _against_ _Hall,_ _and_ this was not reversible error. See also Alabama Pattern Jury Instructions, § 24.05. Based on the _foregoing,_ we _find_ that the _judgment_ of the trial court is _due_ to be affirmed. AFFIRMED. ROBERTSON, P.J., and YATES, J., concur.
506 So.2d 66 (1987) James L. PERCIVAL, Appellant, v. STATE of Florida, Appellee. Nos. 85-2338 to 85-2345. District Court of Appeal of Florida, Second District. April 29, 1987. James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Appellant, James L. Percival, appeals the judgments and sentences entered in eight cases. We find that the trial court erred by requiring appellant's sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future by a court in another county. We, accordingly, remand with instructions to strike that requirement from the judgments and sentences, but affirm in all other respects. Appellant was originally placed on probation for two years in Hillsborough County after pleading nolo contendere to the charge of dealing in stolen property. Less than five months later, the state filed seven informations in Hillsborough County charging appellant with ten counts of robbery and one count of attempted robbery. Appellant pled nolo contendere to these charges in exchange for the trial court's agreement that he would not be sentenced to serve more than fifteen years in prison. Although the guidelines scoresheet is not contained in the record, the record reveals that the prosecutor advised the trial court at sentencing that appellant's scoresheet reflected a presumptive sentence of twelve to seventeen years. Defense counsel neither disagreed with nor objected to the prosecutor's statement. The trial court denied the state's request to depart from the presumptive sentence and, pursuant to its agreement with appellant, imposed five years imprisonment for dealing in stolen property and fifteen years imprisonment for each of the other eleven charges. All of the sentences were to be served concurrently. Over defense counsel's *67 objection, however, the trial court granted the state's request to require these sentences to be served consecutively to a sentence to be imposed at a later date on charges pending against appellant in Pinellas County. Appellant filed timely notices of appeal which have been consolidated for purposes of appeal. We reject appellant's contention that we must remand for resentencing because there is no scoresheet in the record. Appellant's sentences were entered pursuant to an agreement with the trial court. See Lawson v. State, 497 So.2d 288 (Fla. 1st DCA 1986); Rowe v. State, 496 So.2d 857 (Fla. 2d DCA 1986), petition for review granted, No. 69-606 (Fla. March 20, 1987). Additionally, the record reflects that a scoresheet was prepared, that the trial court was informed of appellant's score and presumptive sentence, and that the trial court did not depart from the presumptive sentence. The mere absence of the scoresheet in the record is, therefore, irrelevant. See Davis v. State, 461 So.2d 1361 (Fla. 2d DCA), petition for review denied, 471 So.2d 43 (Fla. 1985). We agree, however, with appellant's contention that the trial court erred in requiring his sentences to be served consecutively to a sentence which had not yet been imposed on other charges pending against him. The sentence imposed by a trial court must commence on a definite date, Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975), and may only be required to be served consecutively to an existing sentence. See Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983); Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981). In this case, the trial court did not know when, if ever, the Pinellas County sentence would be imposed or what length the sentence would be. Under these circumstances, the trial court erroneously ordered appellant's sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future. We, accordingly, remand with instructions that the trial court strike that portion of appellant's sentences which requires the sentences to run consecutively to appellant's expected Pinellas County sentence. We affirm the judgments and sentences in all other respects. Affirmed in part, reversed in part, and remanded. DANAHY, C.J., and SCHOONOVER and SANDERLIN, JJ., concur.	506 so. 2d 66 ( 1987 ) james l. percival, appellant, v. state of florida, appellee. nos. 85 - 2338 to 85 - 2345. district court of appeal of florida, second district. april 29, 1987. justice marion moorman, public defender, and d. p. chanco, asst. public defender, bartow, for appellant. robert a. butterworth, atty. gen., tallahassee, and candance m. sunderland, asst. atty. gen., tampa, for appellee. per curiam. appellant, james l. percival, summarized the judgments and sentences entered in eight cases. analysts find that the trial court erred by requiring appellant ' s sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future by a court in another county. we, accordingly, remand with instructions to strike that requirement from the judgments and sentences, but affirm in all other respects. appellant was originally placed on probation for two years in hillsborough county after pleading nolo contendere to the charge of dealing in stolen property. less than five months later, the state filed seven informations in hillsborough county charging appellant with ten counts of felony and one count of attempted robbery. appellant pled against contendere to these charges in exchange for the trial court ' s agreement that he would not be sentenced to serve more than fifteen years in prison. although the guidelines scoresheet is not contained in the record, the record reveals that the prosecutor advised the trial court at sentencing that appellant ' s scoresheet reflected a presumptive sentence of twelve to seventeen years. defense counsel neither disagreed with nor objected to the prosecutor ' s decision. the trial court denied the state ' s request to depart from the presumptive sentence because, pursuant to its agreement with appellant, imposed five years imprisonment for dealing in stolen property and fifteen years imprisonment for each of the other eleven charges. all of the sentences were to be served concurrently. over district counsel ' s * 67 objection, however, the trial court granted the state ' s request to require these sentences to be served consecutively to a sentence to be reinstated at a later date on charges pending against appellant in pinellas county. appellant filed timely notices of corrections which have been consolidated for purposes of appeal. we reject appellant ' s contention that we must remand for resentencing because there is no scoresheet in the record. appellant ' s sentences were entered pursuant to an agreement with the trial court. see lawson v. state, 497 so. 2d 288 ( fla. 1st dca 1986 ) ; rowe v. state, 496 so. 2d 857 ( fla. 2d dca 1986 ), petition for review granted, no. 69 - 606 ( fla. march 20, 1987 ). additionally, the record reflects that a scoresheet was prepared, that the trial court was informed of appellant ' s score and presumptive sentence, and that the trial court did not depart from the presumptive sentence. the mere absence of the scoresheet in the record is, therefore, irrelevant. see davis v. state, 461 so. 2d 1361 ( fla. 2d dca ), petition for review denied, 471 so. 2d 43 ( fla. 1985 ). we agree, however, with appellant ' s contention that the trial court erred in requiring his sentences to be served consecutively to a sentence which had not yet been imposed on other charges pending against him. the sentence imposed by a trial court must commence on a definite date, keel v. state, 321 so. 2d 86 ( fla. 2d dca 1975 ), and may only be required to be served consecutively to an existing sentence. see richardson v. state, 432 so. 2d 750 ( fla. 2d dca 1983 ) ; teffeteller v. state, 396 so. 2d 1171 ( fla. 5th dca 1981 ). in this case, the trial court did not know when, if ever, the pinellas county sentence would be imposed or what length the sentence would be. under these circumstances, the trial court erroneously ordered appellant ' s sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future. we, accordingly, remand with instructions that the trial court strike that portion of appellant ' s sentences which requires the sentences to run consecutively to appellant ' s expected pinellas county sentence. we affirm the judgments and sentences in all other respects. affirmed in part, reversed in part, and remanded. danahy, c. j., and schoonover and sanderlin, jj., concur.	506 So. 2d 66 (1987) James L. PERCIVAL, Appellant, v. STATE of Florida, Appellee. Nos. 85 - 2338 to 85 - 2345. District Court of Appeal of Florida, Second District. April 29, 1987. James Marion Moorman, Public Defender, and D. P. Chanco, Asst. Public Defender, Bzdtow, for appellant. Robert A. Butterworth, Atty. Gen. , Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen. , Tampa, for appellee. PER CURIAM. Appellant, James L. Percival, appeals the judgments and sentences entered in eight cases. We find that the trial court erred by requiring appellant ' s sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future by a court in another county. We, accIrding<y, remand with instructions to strike that requirement from the judgments and sentences, but affirm in all other respects. Appellant was originally placed on probation for two years in Hillsborough County after pleading nolo contendere to the charge of dealing in stolen property. Less than five months later, the state filed seven informations in HillCborouRh County charging appellant with ten counts of robbery and one count of attempted robbery. Appellant pled nolo contendere to these charges in exchange for the trial court ' s agreement that he would not be sentenced to serve more than fifteen years in prison. althugh the guidelines scoresheet is not contained in the record, the record reveals that the prosecutor advised the trial court at sentencing that appellant ' s scoresheet reflected a presumptive sentence of twelve to seventeen years. Defense counsel neither disagreed with nor objected to the prosecutor ' s statement. The trial court denied the state ' s request to depart from the presumptive sentence and, pursuant to its agreement with appellant, imposed five years imprisonment for dealing in C5olen property and fifteen years imprisonment for each of the other eleven charges. All of the sentences were to be served concurrently. Over defense coImsel ' s 67 objection, however, the trial court granted the state ' s request to require these sentences to be served consecutively to a sentence to be imposed at a later date on charges pending against appellant in Pinellas County. Appellant filed timely notices of appeal which have been consolidated for purposes of appeal. We reject appellant ' s contention that we must remand for resentencing because there is no scoresheet in the record. Appellant ' s sentences were entered pursuant to an agreement with the trial court. See Lawson v. State, 497 So. 2d 288 (Fla. 1st DCA 1986 ); Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986 ), petition for review granted, No. 69 - 606 (Fla. March 20, 1987 ). Additionally, the record reflects that a scoresheet was prepared, that the 5ria; court was informed of appellant ' s score and presumptive sentence, and that the trial court did not depart from the presumptive sentence. The mere absence of the scoresheet in the record is, therefore, irrelevant. See Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA ), petition for review denied, 471 So. 2d 43 (Fla. 1985 ). We agree, however, with appellant ' s contention that the trial court erred in requiring his sentences to be served consecutively to a sentence which had not yet been imposed on other charges pending against him. The sentence imposed by a trial court must commence on a definite date, Keel v. State, 321 So. 2d 86 (Fla. 2d DCA 1975 ), and may only be required to be served consecutively to an existing sentence. See Richardson v. State, 432 So. 2d 750 (Fla. 2d DCA 1983 ); Teffeteller v. State, 396 So. 2d 1171 (Fla. 5th DCA 2o81 ). In Hhks case, the trial court did not know when, if ever, the Pinellas County sentence would be imposed or what length the sentence would be. Under these circumstances, the trial court erroneously ordered appellant ' s sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future. We, accordingly, remand with instructions that the trial court strike that portion of appellant ' s sentences which requires the sejtenc3s to run consecutively to appellant ' s expected Pinellas County sentence. We affirm the judgments and sentences in all other respects. Affirmed in part, reversed in part, and remanded. DANAHY, C. J. , and SCHOONOVER and SANDERLIN, JJ. , concur.	506 So.2d 66 (1987) James L. PERCIVAL, Appellant, v. STATE of Appellee. Nos. District Court of Appeal of Florida, Second District. April 29, James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Appellant, James L. Percival, appeals the judgments and sentences entered in eight cases. We find that the trial court erred by requiring appellant's sentences to be served consecutively an undetermined sentence to be imposed at an undetermined time in the by a court in county. We, accordingly, remand with to strike that requirement from judgments and sentences, but affirm all other respects. Appellant was originally placed on probation for two Hillsborough after pleading nolo contendere to the charge dealing in stolen property. Less than months later, the state filed seven informations in County charging appellant with ten counts of robbery and one count of attempted robbery. pled nolo contendere to these charges in exchange for the court's that he would not be sentenced to serve more than fifteen years in prison. Although the guidelines scoresheet not contained in the record, the record reveals that prosecutor advised the trial court at sentencing appellant's scoresheet a presumptive sentence of twelve to seventeen years. Defense counsel neither with nor objected to the prosecutor's statement. The trial court denied the state's request depart from the presumptive and, pursuant to its with appellant, imposed five years for dealing in stolen property and fifteen imprisonment for each the other eleven charges. All of the were to be served concurrently. Over defense counsel's *67 objection, however, the trial court the state's request to require these sentences to be consecutively to a sentence to be imposed at a later date on charges pending against appellant in Pinellas Appellant filed timely of appeal which have been consolidated for purposes of appeal. We that we must remand for resentencing because there is no scoresheet in the Appellant's sentences were entered pursuant to an agreement with the court. See Lawson v. State, 497 So.2d 288 (Fla. 1st DCA 1986); v. State, 496 So.2d 857 (Fla. 2d DCA petition for review No. 69-606 (Fla. March 20, 1987). record reflects that a scoresheet was prepared, that the trial court was informed appellant's score and presumptive sentence, and that the trial court did not depart the presumptive sentence. The mere of the scoresheet in the record is, therefore, irrelevant. See Davis v. State, 461 So.2d 1361 (Fla. 2d DCA), petition for review denied, 471 So.2d 43 (Fla. 1985). We agree, however, with contention that the trial court erred in requiring his to served consecutively to a sentence which had not yet been imposed on other charges pending against him. The sentence imposed by a trial court must commence on a definite date, Keel v. State, 321 So.2d 2d DCA 1975), and may only be required to be served consecutively to an existing sentence. See Richardson State, 432 So.2d 750 (Fla. 2d DCA Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981). In this the trial court did not know when, if ever, the Pinellas sentence would be imposed or what length the sentence would be. Under these circumstances, the trial court ordered appellant's sentences to be served an undetermined sentence to be imposed an time in the future. We, accordingly, remand with instructions that the trial court strike that portion of appellant's sentences which requires the sentences run consecutively to appellant's expected Pinellas County sentence. affirm the judgments and sentences in all other respects. Affirmed in part, reversed in part, and remanded. DANAHY, C.J., and SCHOONOVER and SANDERLIN, concur.	506 SO.2d 66 (1987) JAMes L. PerCivAL, aPpELLAnt, v. stATE Of FLoRiDA, AppElLeE. noS. 85-2338 TO 85-2345. DistRIcT CouRt OF ApPEAL Of FlOrIda, SeCONd DisTrICt. APRIl 29, 1987. JAmES mArioN mooRmAN, PuBliC DeFeNDeR, and d.p. chAnCo, assT. PUBLiC dEFeNder, bArTOW, fOR APpELlaNT. rObErt A. BuTTeRwoRth, AttY. Gen., tallAHASSEe, and CAnDaNcE m. SUNDERlaNd, ASsT. Atty. gEN., taMPA, foR aPpELleE. per cUrIam. aPpElLaNT, jaMES L. PercIvaL, apPEals thE jUdGMENTS aND seNtEnceS eNTEREd IN eIgHt CASeS. WE FIND tHat THE TrIAl cOUrt errED bY REqUIriNg ApPellanT'S SENtenCes to be SeRveD ConSeCUtivELy tO an UNdETeRMIneD sENtEnCE To bE iMPOsED aT an uNDeteRmINed TImE in the fUTURE By a CouRT IN anOtHer coUNty. WE, ACCoRdINgLY, REMAND WiTh InSTRUcTIoNs tO strIKE thaT rEqUIREmeNT FroM tHE jUdGMeNTs AnD SeNTEnCes, But AffIrM in All OtHER rESPects. apPeLlAnt Was oRiGinally Placed ON PRoBatIoN FOr tWO YeARS In hilLsbOrougH CoUNtY AfTEr PLEadING nOLo cOntEndERE TO THe chARge OF dEALiNg in Stolen PRopErTy. leSs than FiVE MONtHS LateR, tHE StATe FILeD sEVEN iNFORMATIons in HILlSBORouGh cOUntY chARgiNG AppElLant witH ten cOunts oF RobbERY AND One couNt oF ATTeMpTed RoBBERy. APPELLaNT PlEd noLO coNTEnDere To tHESE CHARGEs In eXCHANge fOr THe tRIaL coUrt's AGrEemeNt ThAt hE wOuLd NOt bE SeNtEnCed TO SeRvE MORe THAN fIfTeEN YEars in pRisON. ALThoUgh The GUIdELInes scOReshEEt iS noT CoNTaINED In THE REcORd, tHe reCord ReVeals thAt THe proseCUtor adViSeD the TRIAl couRt AT sENtENCiNg that APpeLLANT'S sCORESHeeT reFLeCTEd a PRESUmPTIVE seNTENCe Of twElVE To SeVeNTEen yeaRs. DeFENSe cOunSeL neiTHer DiSagREEd WitH noR ObJeCted to THE pROSEcUtOr's STATEmenT. THE TrIAL couRt DENied tHe StaTE'S REQuEst TO Depart froM THE prEsuMPTiVe SENtEnce anD, pURsuant TO itS agREEmeNT WitH ApPElLaNt, iMpOseD FivE YeaRS iMprISONmeNT For DealIng In sToLEN PRopertY anD FifteEn YeArs impRisonMenT For eAch OF thE oTher ELEvEN cHARGES. AlL Of tHe seNTEnCes were to bE SeRved CONcUrReNtLy. over DEfenSe CounSEL's *67 ObJecTiOn, hOweVEr, tHE TRiAL cOURt GrAnTeD tHe stAtE'S RequEst tO requirE thESe SENTENcES tO BE serVED CONSeCUtIVelY TO A SEntEnCE TO BE IMposeD aT a later daTE ON CHArGEs PenDiNg aGainsT AppellaNt iN PInEllas couNtY. aPPelLANt FIlEd tiMEly NOtICeS Of appeaL WhIch HaVE BEen ConsolIdATEd FoR puRposeS of appEal. We rEjeCt appElLANt's coNTeNTIoN ThAT we mUSt reManD For ResenteNcinG bECAUSE tHere IS NO scOrEShEEt In tHE ReCOrD. apPellANt'S sEntENCEs WeRe EntERed PUrsuant to aN agReEMent wIth THE trIAL CourT. see lAWson v. sTATe, 497 so.2d 288 (flA. 1ST DCA 1986); roWe v. STATe, 496 So.2D 857 (FLA. 2D DcA 1986), pEtITiOn FoR ReVIeW grAnTED, no. 69-606 (FLa. MArcH 20, 1987). AddItiOnaLlY, thE REcorD reflects thAt a SCoreshEET Was PRePArED, ThaT tHe tRiAl CoURt was iNfoRMed oF ApPeLlaNt's ScOrE and PresUmpTivE SENTENCE, anD that THe TRIal COURT dId noT dePART From ThE PrESuMpTiVe sentenCe. tHe mERe AbsEnCe oF tHe ScOReshEEt in thE RecORd is, tHEREForE, IRrelevAnt. See Davis V. STatE, 461 So.2D 1361 (FlA. 2d dCA), pEtitION FOr reviEW DENIeD, 471 sO.2d 43 (flA. 1985). wE aGREE, HoweveR, WIth ApPeLlanT'S cONteNTIoN tHAT THe triaL court errEd in RequiRiNG hIs SENTenceS tO Be SeRVEd coNSeCuTIveLy to a SENtENcE wHiCH haD NOT Yet BeeN impOseD oN OTheR chARGeS PEndIng AGainst hIm. tHE sENTENcE imPOSEd By a tRIAL coUrt mUsT CoMmENCe on A DeFInitE datE, KEEL v. STAte, 321 So.2D 86 (FLA. 2D dcA 1975), aND MAY oNLy BE rEQuiRED To Be ServEd cONsECuTively to an EXIStIng SentencE. See RichArdsON v. stAte, 432 So.2d 750 (FLa. 2D DCa 1983); TEfFETeLlER v. stATE, 396 so.2d 1171 (fLA. 5TH dca 1981). in tHis cASe, THe tRIal coURt dID NoT knOW wheN, iF EveR, the PINElLAs COunTy senTeNcE WOulD BE IMpOsed OR WHat LEnGtH THe sEnTEnce WOULD Be. unDer THese cIRcUMStANceS, tHe trIal COuRT eRroNEousLY OrdERed AppelLaNT's sENTenCES TO BE seRVEd CoNsECuTiVely tO AN uNdeTerMiNeD sentEnCE To Be IMpOSeD AT An UnDETErmiNEd TimE iN tHe fUTuRe. we, aCcOrDInGlY, reMaNd WItH iNstRuCtions ThAT tHe TrIaL coURt striKE THaT POrTIOn Of APPELLAnT'S SentENcEs WhICh rEQuires the SeNtenCEs TO RuN conSecUTIVELY tO appEllanT'S ExPectEd PiNElLAs COunTy sentEnce. WE AFfIrM tHe JUDgMENTs AND seNtenceS in alL Other REsPects. AfFirmed In part, revErsEd IN PArT, aND rEmAnDeD. DANAHY, C.J., aNd scHooNovER ANd sanderlIN, jj., cONcuR.	506 So.2d 66 (1987) James L. PERCIVAL, Appellant, v. STATE of Florida,Appellee. Nos. 85-2338to 85-2345. District Court of Appeal of Florida, Second District. April 29, 1987. JamesMarion Moorman,Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, forappellant. RobertA. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen.,Tampa, for appellee. PER CURIAM. Appellant, James L.Percival, appeals the judgments and sentences enteredin eight cases. We find that the trialcourt erred by requiring appellant'ssentences tobe served consecutivelyto an undetermined sentence to be imposed at anundetermined timeinthe future by a court in anothercounty. We, accordingly, remandwith instructions to strikethat requirement from the judgmentsand sentences, but affirm in all other respects. Appellant was originally placed on probationfor two years in Hillsborough County after pleading nolo contendere to thecharge of dealing in stolen property. Less than five months later, the state filedseven informations in Hillsborough County charging appellant with ten counts of robbery and one count of attempted robbery.Appellant pled nolo contendere to thesecharges in exchange for the trial court's agreement that he would not be sentenced to servemorethan fifteen years in prison. Although theguidelines scoresheet is not contained in the record, therecord revealsthat the prosecutor advised thetrial court at sentencing that appellant's scoresheet reflected a presumptive sentence oftwelve to seventeen years. Defense counsel neitherdisagreed with nor objected to the prosecutor's statement. The trial court denied the state's request to depart from the presumptivesentence and, pursuant to its agreement with appellant, imposed five years imprisonment fordealing in stolen property and fifteen years imprisonment foreach of the other eleven charges. All of the sentenceswere to be served concurrently. Over defense counsel's *67objection,however, the trial court granted the state'srequest to require these sentencesto be served consecutively to a sentence tobe imposed ata later date on charges pending against appellant inPinellas County. Appellant filed timely notices of appeal which have been consolidated for purposes of appeal. We reject appellant's contention that wemust remand for resentencing becausethere is no scoresheetin the record. Appellant's sentences were entered pursuant to an agreementwith the trial court. See Lawson v. State, 497 So.2d 288 (Fla. 1st DCA 1986); Rowe v. State, 496So.2d 857 (Fla. 2d DCA 1986),petition for review granted, No. 69-606 (Fla. March 20, 1987). Additionally, the record reflects that a scoresheet was prepared, that the trial court was informed of appellant'sscoreand presumptivesentence,and that thetrial court did notdepart from the presumptive sentence. The mere absence of the scoresheetin the record is,therefore, irrelevant. See Davis v. State, 461 So.2d 1361 (Fla. 2d DCA), petition for review denied, 471 So.2d 43 (Fla. 1985). We agree, however, with appellant's contention that the trial court erred in requiring his sentences to beservedconsecutively to a sentence which had notyet been imposed on other charges pendingagainst him. The sentence imposed by atrial court mustcommence on a definite date,Keel v. State, 321 So.2d 86 (Fla. 2dDCA 1975), and may onlybe required to be servedconsecutivelyto anexisting sentence. See Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983);Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981). In this case, thetrial court did not know when, if ever, the PinellasCounty sentence would be imposed or what length the sentence would be. Under these circumstances, the trial courterroneously orderedappellant's sentences to be served consecutivelyto an undetermined sentence to be imposed at an undetermined timein the future. We, accordingly, remandwith instructions that the trial court strike that portion of appellant's sentences which requires the sentences torun consecutively to appellant's expected PinellasCounty sentence. We affirm the judgments and sentencesin allotherrespects.Affirmed in part,reversed in part, and remanded.DANAHY, C.J., and SCHOONOVER and SANDERLIN, JJ., concur.	506 So.2d 66 (1987) James L. PERCIVAL, _Appellant,_ v. STATE of Florida, Appellee. Nos. 85-2338 _to_ 85-2345. District Court of Appeal of Florida, Second District. April 29, 1987. James Marion _Moorman,_ Public Defender, _and_ D.P. Chanco, Asst. Public Defender, _Bartow,_ for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. _Gen.,_ Tampa, _for_ appellee. PER CURIAM. Appellant, James L. _Percival,_ _appeals_ the _judgments_ and sentences entered in eight cases. _We_ find that the trial court erred _by_ _requiring_ appellant's sentences to be served consecutively _to_ _an_ undetermined sentence to be imposed at _an_ undetermined time in _the_ _future_ by a court in _another_ county. We, accordingly, remand with instructions to _strike_ that _requirement_ _from_ the judgments and sentences, but affirm _in_ _all_ other respects. Appellant was _originally_ placed on probation _for_ two years _in_ Hillsborough County _after_ pleading nolo contendere to the charge of _dealing_ in stolen property. _Less_ than five months later, the _state_ filed seven informations in Hillsborough County _charging_ appellant with _ten_ counts of robbery and one count _of_ attempted _robbery._ Appellant _pled_ nolo contendere to these charges in exchange for the trial court's agreement that he would _not_ _be_ sentenced to serve more _than_ fifteen years in prison. Although the guidelines scoresheet is not contained in the record, the record _reveals_ that the _prosecutor_ advised the trial court at _sentencing_ that appellant's _scoresheet_ _reflected_ a presumptive _sentence_ of twelve to seventeen years. Defense counsel neither _disagreed_ with nor _objected_ to _the_ prosecutor's statement. _The_ trial court _denied_ _the_ state's _request_ to depart _from_ _the_ presumptive _sentence_ _and,_ pursuant to _its_ _agreement_ with appellant, imposed five years imprisonment _for_ dealing in _stolen_ _property_ and fifteen years imprisonment for each of _the_ _other_ _eleven_ charges. All of the sentences _were_ to be served _concurrently._ _Over_ _defense_ counsel's *67 objection, however, the trial court granted the state's request to require these sentences to _be_ served consecutively to _a_ sentence to be imposed at a later date on charges pending _against_ appellant in Pinellas County. Appellant filed timely _notices_ of _appeal_ which have been consolidated for purposes _of_ appeal. We reject appellant's contention _that_ we _must_ remand for _resentencing_ _because_ there is no scoresheet in the _record._ Appellant's sentences _were_ _entered_ pursuant to an agreement with the _trial_ court. See Lawson v. State, _497_ So.2d 288 (Fla. 1st DCA 1986); Rowe v. State, 496 _So.2d_ 857 (Fla. 2d DCA 1986), petition for review granted, No. 69-606 (Fla. March 20, 1987). Additionally, the record _reflects_ that a scoresheet was prepared, that the trial court was informed of appellant's score _and_ _presumptive_ sentence, and _that_ _the_ trial _court_ did not _depart_ from _the_ presumptive sentence. The mere _absence_ of the scoresheet in the record is, _therefore,_ _irrelevant._ _See_ _Davis_ v. State, _461_ So.2d 1361 _(Fla._ 2d DCA), _petition_ for review denied, 471 So.2d 43 (Fla. 1985). We agree, however, _with_ appellant's contention that the trial court erred in _requiring_ his _sentences_ to be served consecutively _to_ _a_ sentence _which_ had _not_ _yet_ been _imposed_ _on_ other charges pending against him. The sentence imposed by a _trial_ court must commence on a definite _date,_ Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975), and may only be _required_ to be _served_ consecutively to an existing sentence. See Richardson v. State, _432_ So.2d _750_ (Fla. 2d DCA _1983);_ Teffeteller v. _State,_ 396 So.2d 1171 (Fla. _5th_ DCA 1981). In this case, the trial court _did_ not know when, _if_ _ever,_ the Pinellas County _sentence_ would be _imposed_ or _what_ length _the_ _sentence_ _would_ be. _Under_ these circumstances, _the_ trial court erroneously ordered _appellant's_ sentences to be _served_ consecutively to an undetermined sentence _to_ be imposed at an undetermined time in the _future._ We, _accordingly,_ _remand_ with _instructions_ that the trial court strike _that_ portion of _appellant's_ sentences which requires the _sentences_ to run consecutively to appellant's expected Pinellas County sentence. _We_ affirm _the_ judgments and sentences in all other _respects._ _Affirmed_ _in_ part, reversed in part, and remanded. DANAHY, _C.J.,_ and SCHOONOVER and SANDERLIN, JJ., concur.
Case: 11-30209 Document: 00511890671 Page: 1 Date Filed: 06/18/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 18, 2012 No. 11-30209 Summary Calendar Lyle W. Cayce Clerk SEAN C. WALKER, Plaintiff-Appellant v. JEFFREY TRAVIS, Warden, Rayburn Correctional Center; BESSIE CARTER, Director of Nursing at B.B. Sixty Rayburn Correctional Center; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Secretary, Defendants-Appellees Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CV-4361 Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges. PER CURIAM:* Sean C. Walker, Louisiana prisoner # 126912, appeals the dismissal of his 42 U.S.C. § 1983 complaint against numerous defendants, including the head of administration of B.B. Sixty Rayburn Correctional Center (the head of administration). Walker asserted that the defendants were deliberately indifferent to his safety and to his medical needs after he was attacked and * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-30209 Document: 00511890671 Page: 2 Date Filed: 06/18/2012 No. 11-30209 injured by his cellmate. The district court dismissed Walker’s complaint as frivolous and/or for failure to state a claim upon which relief could be granted; however, the judgment failed to mention Walker’s claims against the head of administration, although it specifically dismissed Walker’s claims against the other defendants. Under 28 U.S.C. § 1291, federal appellate courts have jurisdiction to hear appeals from “‘final decisions’” of district courts. Witherspoon v. White, 111 F.3d 399, 401 (5th Cir. 1997). Generally, a judgment adjudicating the rights of fewer than all of the parties is not a final decision in the absence of a Federal Rule of Civil Procedure 54(b) certification directing entry of final judgment as to those parties. Federal Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471 (5th Cir. 1990). In circumstances in which a court order is ambiguous as to what parties and claims are being disposed of and “the district court clearly intend[ed] to effect a final dismissal of a claim, we will construe [the district court’s] order accordingly, despite ambiguous language that might indicate otherwise.” Picco v. Global Marine Drilling Co., 900 F.2d 846, 849 n. 4 (5th Cir.1990). The head of administration was served with Walker’s complaint and amended complaint; thus, he was a party to the suit. See Nagle v. Lee, 807 F.2d 435, 440 (5th Cir. 1987). Although the district court’s judgment was silent regarding Walker’s claims against the head of administration, the court might have intended that the judgment be final in light of the fact that the district court also denied Walker’s motion for leave to amend the complaint to substitute Robert C. Tanner as the head of administration because Walker had failed to state a claim against Tanner. See Picco, 900 F.2d at 849 n. 4. We conclude that we should order a limited remand to allow the district court to indicate whether the judgment of February 2, 2011, was intended to be the final judgment in this case, and if not, for the court to determine whether or not it now will enter a final judgment. 2 Case: 11-30209 Document: 00511890671 Page: 3 Date Filed: 06/18/2012 No. 11-30209 IT IS ORDERED that a limited remand occur for the district court to enter an order or judgment as indicated. Proceedings on this appeal are stayed pending the receipt of the district court’s order or other response. 3	case : 11 - 30209 document : 00511890671 page : 1 date filed : 06 / 18 / 2012 from the united states court of appeals for the fifth circuit united states court of appeals fifth circuit filed june 18, 2012 no. 11 - 30209 summary calendar lyle w. cayce clerk sean c. harris, plaintiff - appellant v. jeffrey travis, warden, rayburn correctional center ; bessie carter, director of nursing at b. b. sixty rayburn correctional center ; louisiana court of public safety and corrections, secretary, defendants - appellees appeal from the united states district court for the eastern district of louisiana usdc no. 11 : 09 - cv - 4361 before higginbotham, garza, and thomas, circuit judges. per curiam : * sean c. walker, defendants prisoner # 126912, appeals the dismissal of his 42 u. s. c. § 1983 complaint against numerous defendants, including the head of administration of b. b. sixty rayburn correctional center ( the head of administration ). walker asserted that the defendants were deliberately indifferent to his safety and to his medical needs after he was attacked and * pursuant to 5th cir. r. 47. 5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th cir. r. 47. 5. 4. case : 11 - 30209 document : 00511890671 page : 2 date filed : 06 / 18 / 2012 no. 11 - 30209 injured by his cellmate. the division court dismissed walker ’ s complaint as frivolous and / or for failure to state a claim upon which relief could be granted ; however, the judgment failed to mention walker ’ s claims against the head of administration, although it specifically dismissed walker ’ s claims against several other defendants. under 28 u. s. c. § 1291, federal appellate courts have jurisdiction to hear appeals from “ ‘ final decisions ’ ” of district courts. witherspoon v. white, 111 f. 3d 399, 401 ( 5th cir. 1997 ). generally, a judgment adjudicating the rights defendant fewer than all of the parties is not a final decision in the absence of a federal rule of civil procedure 54 ( b ) certification directing entry of final judgment as to those parties. federal loans. & loan ins. corp. v. tullo ##s - pierremont, 894 f. 2d 1469, 1471 ( 5th cir. 1990 ). in circumstances in which a court order is ambiguous as to what parties and claims are being disposed of and “ the district court clearly intend [ ed ] to effect a final dismissal of a claim, we will construe [ the district court ’ s ] order accordingly, despite ambiguous language that might indicate otherwise. ” picco v. global marine drilling co., 900 f. 2d 846, 849 n. 4 ( 5th cir. 1990 ). the head of administration was served with walker ’ s complaint and amended complaint ; thus, he was a party to the suit. see nagle v. lee, 807 f. 2d 435, 440 ( 5th cir. 1987 ). although the district court ’ s judgment was silent regarding walker ’ s claims against the head of administration, the court might have intended that the judgment be final in light of the fact that the district court also denied walker ’ s motion for leave to amend the complaint to substitute robert c. tanner as the head of administration because walker had failed to state a claim against tanner. see picco, 900 f. 2d at 849 n. 4. we conclude that we should order a limited remand to allow the district court to indicate whether the judgment of february 2, 2011, was intended to be the final judgment in this case, and if not, for the court to determine whether or not it now will enter a final judgment. 2 case : 11 - 30209 document : 00511890671 page : 3 date filed : 06 / 18 / 2012 no. 11 - 30209 it is ordered that a limited remand occur for the district court to enter an order or judgment as indicated. proceedings on this appeal are stayed pending the receipt of the district court ’ s order or other response. 3	Case: 11 - 30209 Document: 00511890671 Page: 1 Date Filed: 06 / 18 / 2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED J8Me 18, 2012 No. 11 - 30209 Summary Calendar Lyle W. Cayce Clerk SEAN C. WALKER, Plaintiff - Appellant v. JEFFREY TRAVIS, Warden, Rayburn Correctional Center; BESSIE CARTER, Director of Nursing at B. B. Sixty Rayburn Correctional Center; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Secretary, Defendants - Appellees Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2: 09 - CV - 4361 Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges. PER CURIAM: * Sean C. Walker, Louisiana prisoner # 126912, appeals the dismissal of his 42 U. S. C. § 1983 complaint against numerous defendants, including the head of administration of B. B. Sixty Rayburn Correctional Center (the head of administration ). WSlkDr asserted that the defendants were deliberately indifferent to his safety and to his medical needs after he was attacked and * Pursuant to 5TH CIR. R. 47. 5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47. 5. 4. Case: 11 - 30209 Document: 00511890671 Page: 2 Date Filed: 06 / 18 / 2012 No. 11 - 30209 injured by his cellmate. The district court dismissed Walker ’ s complaint as frivolous and / or for failure to state a claim upon which relief could be granted; however, the judgment failed to mention Walker ’ s claims against the head of administration, although it specifically dismissed Walker ’ s claims against the otGfr defendants. Under 28 U. S. C. § 1291, federal appellate cojrtd have jurisdiction to uDar appeals from “ ‘ final decisions ’ ” of district courts. Witherspoon v. White, 111 F. 3d 399, 401 (5th Cir. 1997 ). Generally, a judgment adjudicating the rights of fewer tuwn all of the parties is not a final decision in the absence of a Federal Rule of Civil Procedure 54 (b) certification directing entry of final judgment as to those 0a%ties. Federal Sav. & Loan Ins. Corp. v. Tullos - Pierremont, 894 F. 2d 1469, 1471 (5th Cir. 1990 ). In circumstances in which a court order is ambiguous as to what pArtles and claims are being disposed of and “ the district court DleaEly intend [ed] to effect a final dismissal of a claim, we will construe [the district court ’ s] order accordingly, despite ambiguous language that might indicate otherwise. ” Picco v. Global Marine Drilling Co. , 900 F. 2d 846, 849 n. 4 (5th Cir. 1990 ). The head of administration was served with Walker ’ s complaint and amended complaint; thus, he was a party to the suit. See Nagle v. Lee, 807 F. 2d 435, 440 (5th Cir. 1987 ). Although the district court ’ s judgment was silent regarding Walker ’ s claims against the head of administration, the court might have intended rhXt the judgment be final in light of the fact that the district court also denied Walker ’ s motion for leave to amend the complaint to substitute Robert C. Tanner as the head of administration because Walker had failed to state a claim against Tanner. See Picco, 900 F. 2d at 849 n. 4. We conclude that we should order a limited remand to allow the district court to indicate whether the judgment of February 2, 2011, was intended to be the final judgment in this case, and if not, for the court to determine whether or not it now will enter a final judgment. 2 Case: 11 - 30209 Document: 00511890671 Page: 3 Date Filed: 06 / 18 / 2012 No. 11 - 30209 IT IS ORDERED that a limited remand occur for the district court to enter an order or judgment as indicated. Proceedings on this appeal are stayed pending the receipt of the district court ’ s order or other response. 3	Case: 11-30209 Document: 00511890671 Page: 1 Date Filed: 06/18/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 18, 2012 11-30209 Summary Calendar W. Cayce Clerk SEAN C. WALKER, v. JEFFREY TRAVIS, Warden, Rayburn Correctional Center; BESSIE CARTER, Director of Nursing B.B. Sixty Rayburn Correctional Center; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Secretary, Defendants-Appellees Appeal from the United States District Court for the Eastern District Louisiana USDC No. 2:09-CV-4361 Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges. PER CURIAM:* Sean C. Walker, Louisiana # 126912, the dismissal his 42 U.S.C. § 1983 against numerous defendants, including the head of administration of B.B. Sixty Rayburn Correctional Center (the head of Walker asserted that the defendants were deliberately indifferent to his safety and to his medical needs after was attacked and Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. Case: Document: 00511890671 Page: 2 Date Filed: 06/18/2012 No. 11-30209 by his cellmate. The district court Walker’s complaint as and/or for failure to state a claim upon which relief could be granted; however, the judgment failed to Walker’s claims against the head of administration, although it specifically dismissed Walker’s claims against the other defendants. Under 28 U.S.C. § 1291, courts have jurisdiction hear from “‘final decisions’” of district courts. Witherspoon v. White, 111 F.3d 401 (5th Cir. 1997). a judgment adjudicating the rights of fewer than all of the parties is not a final decision in the absence of a Federal Rule of Civil Procedure 54(b) certification directing entry of final judgment to those parties. Federal & Loan Ins. Corp. v. Tullos-Pierremont, 894 1469, 1471 (5th Cir. 1990). In which a court is ambiguous as to what parties and are being disposed of “the district court clearly intend[ed] to effect a final dismissal of a claim, we construe [the district court’s] order accordingly, despite ambiguous might indicate otherwise.” Picco v. Global Marine Co., 900 F.2d 846, 849 n. 4 (5th Cir.1990). The head of administration was served with Walker’s complaint and amended complaint; he party to the suit. See Nagle Lee, 807 F.2d 435, 440 (5th Cir. 1987). Although the district judgment was silent regarding Walker’s claims against the head of administration, court might have intended that the judgment be final in light of the fact that the court Walker’s motion for leave to amend the complaint to Robert C. Tanner as the head administration because Walker had failed to state a claim against Tanner. See Picco, F.2d at 849 n. 4. We conclude that we should order a limited remand to allow district to indicate whether the judgment of February 2, 2011, was intended to be the final judgment in this case, and if not, for the court to determine whether or not now will enter a judgment. 2 Case: Document: 00511890671 Page: 3 Date Filed: 06/18/2012 No. 11-30209 IT IS ORDERED that a limited remand occur the district court to enter an order or judgment indicated. Proceedings on appeal stayed pending the receipt of the district court’s order other response. 3	CAse: 11-30209 documeNt: 00511890671 page: 1 date fIlEd: 06/18/2012 In THe UnITed sTaTEs CoUrT OF AppEaLs For tHe FIfTh circUIt uNITEd STaTES CoURT of aPpeALS fifTh ciRCUiT Filed JuNE 18, 2012 no. 11-30209 sUmMARY cAlendaR lYLe W. CaYcE CLERk sEAn C. wAlKeR, PlAinTiFf-apPellAnt v. JEffReY trAVis, WaRDen, rAybuRn CORrecTiONAL ceNtER; BeSsIE CaRtEr, DIRecTor OF NURsIng aT B.b. sIXTy rAyBuRn coRrEcTioNaL cEnter; LoUISiaNA DePARTMEnT OF pUbLiC sAFeTY anD corrECtIons, secRETARY, DEFENDAnts-apPElLEEs aPpEaL FRoM tHE UnITed STatEs districT CoURt fOr the eAStErn diStrICT oF LOUISiaNa UsDc No. 2:09-cV-4361 beFore hIgGiNbotham, gArzA, And elroD, cIrcuIT JUDGES. PeR cUriaM:* SeaN C. WaLker, lOUiSiana PrISONeR # 126912, aPPEALS THe dismissal OF HiS 42 U.s.C. § 1983 CoMplaiNt AgAInST NUmErOuS defEnDants, INCLuDing tHE heAd of ADmiNIstRATIon Of b.B. SIxtY RAYbUrN cORRecTiONal CEnTER (THE HeaD OF adMiNiStrAtIoN). WalKer asserTED thAT thE defendaNts WeRE DELiBeRAteLY INdIfferENT tO his SaFEty AnD tO his mEDIcAl NeeDs AftER HE WAS atTackED And * puRsuANt tO 5tH Cir. r. 47.5, THe COUrT hAs DEtERmineD tHAt this opInIon ShoULd NoT Be PUBlisheD AnD IS not prECEdeNT excePt UnDEr tHE LIMITEd CIRCumStAnceS SET FoRtH In 5th cir. r. 47.5.4. Case: 11-30209 docuMeNt: 00511890671 pAgE: 2 daTE FiLED: 06/18/2012 NO. 11-30209 InJUREd bY hiS CElLMatE. THe disTrICt Court DisMisSED WALker’s COmPLaINT As FRivoLous aND/or FoR fAiLURe TO STatE a claIM UPoN wHIcH relIef cOULD be GRANtED; HowevER, THe JUDGmENt faIlEd tO MENTIOn wALKEr’s clAimS AgaInsT THe HEad of aDMINIStRation, alThoUGH IT spECiFicAllY dISmISSed WalkeR’S CLAIms AgAINST ThE oTHeR deFeNdanTs. unDEr 28 u.S.C. § 1291, fedeRal apPEllATe COurTS Have JURISdICTIoN tO HEaR AppeALs fROm “‘finAl decISIoNS’” oF DIsTRict courtS. WitHERSPOon v. wHIte, 111 f.3d 399, 401 (5TH CIr. 1997). GeneRAlLY, A jUDGMenT AdJuDIcAtINg ThE RIghts oF fEWER than alL OF THE pARTIES is nOt A FInaL DEcISiOn iN tHe abSeNCe oF A FeDeRAL rule oF cIVil procEdURE 54(b) CeRtifiCATion DIREcTINg EnTrY Of fInAL JUDgMeNt As To tHOsE pArTIeS. FEDeRAl sav. & lOAn inS. cORP. v. TuLLos-PieRreMOnt, 894 f.2D 1469, 1471 (5tH cir. 1990). In CiRcumStaNCes in wHich a cOURt orDER IS aMbiGuoUs as to what pArtiEs AND CLAims aRE BeINg diSpOSEd Of aND “tHe DIsTRICT CoURt cLEARLY intENd[ED] TO efFeCT A FiNaL DismIsSAl oF A cLaIM, we wiLL cONStRuE [thE distrICT COURT’s] ordeR AcCORDInglY, desPITe ambIGUouS LanguaGE THaT mIgHT iNdIcate OtHeRWiSe.” pICCO v. globAL mariNe dRIllInG CO., 900 f.2d 846, 849 n. 4 (5th cIr.1990). the Head of admINISTRaTion wAs ServeD WiTh WAlkER’S cOmPLAinT aNd AmendEd coMpLaInt; THUs, he waS a PaRty tO tHE suit. SEe NAGLE v. LeE, 807 f.2d 435, 440 (5th cIr. 1987). alTHOUgh ThE diSTRiCt COuRT’s JudGmeNt WAS sIlent RegaRDIng walkEr’s CLaiMs AGaInst THe heaD OF ADmiNIsTraTioN, ThE coUrt miGht hAVE INTendeD tHaT tHE JUdgMEnt BE finAL IN liGHt of tHe fAcT tHAT ThE dIsTRICT coURt AlSo dEnieD WalKeR’s MotIOn fOR leAVE To aMeNd The COmplAInT to sUBStItUTe roBerT C. TanNEr As thE HEAD of aDMiNIstRAtiOn becAUsE WalKer HaD failED To STatE A ClaIM agaiNst taNneR. seE PicCO, 900 f.2d aT 849 n. 4. we cONcLUDe That We shouLd ORDer A LImIted REMANd tO ALLOW thE distRIct coUrt To INdIcatE WHETher tHE JUdGMENT Of FEBRuARY 2, 2011, WAS iNTEndED tO bE the finAl judgmenT iN This case, anD IF noT, foR THE courT tO DeterMIne wHeTHER OR nOt It NOW wiLl enTER a FiNal JudGmeNt. 2 CASE: 11-30209 DoCuMENT: 00511890671 PaGe: 3 DAte Filed: 06/18/2012 nO. 11-30209 IT is OrdERed thAT A lImiTEd REMAnD occUr for THe dIsTRiCt CourT To eNtEr AN ORdER or judGMEnT As iNDICaTEd. pRoCeEDiNGs ON This aPpeal ARE STaYeD peNDINg THE RecEIpT Of THe distRIct cOURT’S oRDer OR oTHeR RESPOnse. 3	Case: 11-30209Document: 00511890671 Page: 1 Date Filed: 06/18/2012 IN THE UNITED STATESCOURT OF APPEALS FOR THE FIFTHCIRCUITUnited States Court of Appeals Fifth Circuit FILED June 18, 2012 No.11-30209 Summary Calendar Lyle W.CayceClerk SEAN C. WALKER, Plaintiff-Appellant v. JEFFREYTRAVIS, Warden, Rayburn Correctional Center;BESSIE CARTER, Director of Nursing at B.B. Sixty Rayburn CorrectionalCenter; LOUISIANA DEPARTMENTOF PUBLIC SAFETY ANDCORRECTIONS,Secretary, Defendants-Appellees Appeal from the United States District Court for the Eastern District of LouisianaUSDC No. 2:09-CV-4361 Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges. PER CURIAM:* Sean C. Walker,Louisiana prisoner # 126912, appeals the dismissal of his 42 U.S.C. § 1983 complaint against numerous defendants, including the head of administration of B.B. Sixty Rayburn Correctional Center (thehead of administration).Walker asserted that the defendants were deliberately indifferent to his safety and to his medical needs afterhe was attacked and * Pursuant to 5TH CIR. R. 47.5, the court has determined thatthis opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-30209 Document: 00511890671 Page: 2 Date Filed: 06/18/2012 No. 11-30209 injured by hiscellmate.The district court dismissed Walker’s complaintas frivolous and/or for failure to state aclaim uponwhich reliefcouldbe granted; however,thejudgment failed to mention Walker’s claims against thehead of administration, although it specifically dismissed Walker’s claimsagainst the other defendants. Under 28 U.S.C. § 1291, federalappellate courts have jurisdiction to hearappeals from“‘final decisions’” of district courts.Witherspoonv. White, 111 F.3d 399, 401 (5th Cir. 1997). Generally, a judgment adjudicating the rights of fewer thanall of the parties is not a final decision in the absenceof a Federal Rule of Civil Procedure 54(b)certification directing entry of final judgment as to those parties. Federal Sav. & Loan Ins.Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471 (5th Cir. 1990). In circumstances in whicha court order is ambiguous as to what parties and claims are being disposed of and “the district court clearly intend[ed] to effecta final dismissal of a claim, we will construe [the district court’s] order accordingly, despite ambiguous language that might indicate otherwise.”Picco v. Global Marine Drilling Co., 900F.2d 846, 849 n. 4 (5th Cir.1990). The head of administration was served with Walker’s complaint and amended complaint; thus, he was a partyto the suit. See Nagle v. Lee, 807 F.2d 435,440 (5th Cir. 1987). Although the district court’s judgment was silent regarding Walker’s claimsagainst the head of administration, the court mighthave intended that thejudgmentbe final in light of the fact that the district courtalso denied Walker’s motion for leave to amend the complaint to substitute Robert C. Tanner as the head of administration because Walker had failed to state a claim against Tanner. See Picco, 900F.2dat849 n. 4.We conclude that we should order a limited remand toallow thedistrict court to indicate whether the judgment ofFebruary2, 2011, was intended to be the final judgment in this case,and if not,forthe court to determine whether or not it now willenter a final judgment.2 Case: 11-30209 Document: 00511890671 Page: 3 Date Filed:06/18/2012No. 11-30209 IT IS ORDERED that a limited remand occur for the districtcourt to enter an order or judgment as indicated. Proceedings on thisappeal are stayed pending thereceipt of the district court’s orderor other response. 3	_Case:_ 11-30209 Document: 00511890671 Page: 1 Date Filed: 06/18/2012 IN _THE_ UNITED STATES _COURT_ OF APPEALS FOR THE FIFTH CIRCUIT United States _Court_ of _Appeals_ Fifth Circuit FILED June 18, 2012 No. 11-30209 _Summary_ _Calendar_ Lyle W. _Cayce_ Clerk SEAN _C._ WALKER, Plaintiff-Appellant _v._ JEFFREY TRAVIS, Warden, Rayburn Correctional Center; _BESSIE_ _CARTER,_ Director of Nursing at _B.B._ Sixty Rayburn Correctional Center; LOUISIANA DEPARTMENT OF PUBLIC SAFETY _AND_ CORRECTIONS, _Secretary,_ Defendants-Appellees _Appeal_ _from_ _the_ United States District Court for the Eastern District of _Louisiana_ USDC _No._ 2:09-CV-4361 Before _HIGGINBOTHAM,_ GARZA, _and_ ELROD, Circuit Judges. PER CURIAM:* _Sean_ C. Walker, Louisiana _prisoner_ # 126912, appeals the dismissal of his 42 _U.S.C._ _§_ 1983 complaint against numerous defendants, including the head of administration of _B.B._ Sixty _Rayburn_ _Correctional_ Center _(the_ head of administration). Walker asserted that the defendants were deliberately _indifferent_ to his safety and to his medical needs after he _was_ attacked and * Pursuant to _5TH_ CIR. R. _47.5,_ _the_ court has determined _that_ this opinion should not be published and is not precedent except under the limited circumstances _set_ forth in 5TH CIR. R. 47.5.4. Case: 11-30209 Document: _00511890671_ _Page:_ 2 Date Filed: 06/18/2012 _No._ 11-30209 injured by his cellmate. The district court dismissed Walker’s complaint as _frivolous_ _and/or_ for failure to state a claim _upon_ which relief could be granted; however, the judgment _failed_ to mention Walker’s claims against the head of administration, although _it_ specifically _dismissed_ _Walker’s_ _claims_ against the _other_ defendants. Under _28_ U.S.C. _§_ 1291, federal appellate courts have jurisdiction _to_ hear _appeals_ from “‘final decisions’” of district courts. _Witherspoon_ v. _White,_ 111 F.3d 399, 401 (5th Cir. 1997). _Generally,_ a judgment adjudicating _the_ rights of fewer than all of _the_ parties _is_ not a final decision in the _absence_ of a Federal _Rule_ of _Civil_ Procedure _54(b)_ certification directing entry _of_ final judgment as to those parties. Federal Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471 (5th Cir. _1990)._ In circumstances in which a _court_ order is ambiguous as _to_ what parties _and_ claims are being disposed of and “the district court clearly intend[ed] to effect a final dismissal of a claim, we will construe _[the_ district court’s] order accordingly, despite ambiguous _language_ _that_ might indicate otherwise.” _Picco_ v. _Global_ Marine Drilling Co., _900_ _F.2d_ 846, 849 n. 4 (5th Cir.1990). The head of administration was served with _Walker’s_ complaint and amended complaint; _thus,_ he was a _party_ to the suit. See _Nagle_ v. Lee, _807_ F.2d 435, 440 (5th Cir. 1987). Although the district court’s _judgment_ was silent regarding Walker’s claims against the head of administration, _the_ court might _have_ intended that the judgment be final in light of the fact that the _district_ _court_ also _denied_ _Walker’s_ motion for leave to amend _the_ complaint to substitute Robert _C._ Tanner _as_ the _head_ of administration because Walker _had_ failed to state _a_ claim against Tanner. See _Picco,_ _900_ F.2d at 849 n. 4. We _conclude_ that we should order a limited remand to allow _the_ district _court_ to indicate whether the judgment of February 2, 2011, was intended to _be_ the final judgment in _this_ case, and if not, for the court to _determine_ whether or _not_ it _now_ _will_ enter a final judgment. 2 Case: 11-30209 Document: 00511890671 _Page:_ 3 Date Filed: 06/18/2012 _No._ 11-30209 IT IS ORDERED that _a_ _limited_ remand occur for _the_ district court to enter an order _or_ judgment as _indicated._ Proceedings on this appeal _are_ _stayed_ pending the receipt _of_ _the_ district court’s order or other response. 3
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 2, 2006 No. 05-11420 THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 97-00238-CR-DLG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORIO MACHADO, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2006) Before TJOFLAT and CARNES, Circuit Judges and HODGES,* District Judge. CARNES, Circuit Judge: * Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation. I. In March 1997 a grand jury indicted Gregorio Machado on thirteen counts of conspiracy to launder drug proceeds. The indictment included a forfeiture count pursuant to 18 U.S.C. § 982. After reaching a plea agreement with the government, Machado entered a guilty plea in May 1997. The written plea agreement contained an appeal waiver provision and a detailed forfeiture provision through which Machado pledged “to fully and unreservedly cooperate and assist the United States in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located.” That provision included a detailed list of all the money and items that were to be forfeited. Machado says that the value of those listed items was approximately $12 million at the time of the indictment. On July 28, 1997, the district court sentenced Machado to 51 months imprisonment. At sentencing, the Assistant United States Attorney representing the government moved to dismiss eleven of the thirteen counts of the indictment in accordance with the plea agreement, and stated that “[t]he United States has not dismissed Count I or the forfeiture count at the very end.” The court responded, “Count II through XI[I] are dismissed. Count I and the forfeiture count remain in full force and effect.” The formal judgment in the case, which was entered on July 2 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder money, and sentenced him to a term of 51 months. The only mention of forfeiture in the judgment entry is this sentence: “A separate Forfeiture order shall be entered in this cause.” On March 11, 1998, about seven months later the government filed a motion for an order of forfeiture. The following day the district court granted the motion and entered a preliminary order of forfeiture. On the government’s motion, the district court on April 24, 1998 entered an amended order to include additional property. A final order of forfeiture was entered on July 14, 1998, nearly a year after sentencing. Machado did not attempt to appeal any of those orders, including the final order of forfeiture. Instead, on September 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to Fed. R. Cr. P. 41(e), requesting a return of “all documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [forfeiture] actions.” In that motion Machado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. At a hearing on January 20, 1999, the district court ordered the documents returned to 3 Machado. The government could not fully comply because some of the original documents were destroyed, but it ultimately returned others to Machado. Machado filed a pro se motion for sanctions which was ultimately denied. On April 23, 2003, three months shy of five years after entry of the final order of forfeiture, Machado filed under Rule 60(b)(4) a pro se motion for relief from that order “in light of this Circuit’s decision in United States v. Petrie, 302 F.3d 1280, 1284–85 (11th Cir. 2002).” Machado contended that because the district court had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for that reason the order must be vacated. Because the district court had previously issued an order prohibiting the parties from filing any new motions until all pending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60(b)(4) motion on that ground was not an abuse of discretion. We never reached the merits of Machado’s claim. On May 17, 2004, Machado filed pursuant to Rule 60(b) another motion to vacate the forfeiture order. After the district court denied that motion a week later, we affirmed on November 17, 2004, explaining that Rule 60(b) cannot be used to challenge criminal forfeiture orders. Again, we did not reach the merits of Machado’s claim. 4 On December 17, 2004, which was six years and five months after the final order of forfeiture was entered, Machado filed yet another pro se motion seeking return of the forfeited property. This one asserted that he was proceeding under Fed. R. Cr. P. 41(g) and the All Writs Act, 28 U.S.C. § 1651(a). In February 2005 the district court denied the motion in a three-sentence order: “This cause came before the Court upon Defendant’s Motion for Return of Property Pursuant to Fed. R. Crim. P. Rule 41(e) . . . filed December 17, 2004. The Court having reviewed the pertinent portions of the record, and being otherwise fully advised in the premises, it is ordered and adjudged that Defendant’s Motion for Return of Property is Denied. Done and ordered in Chambers, at Miami, Florida this 7th Day of February, 2005.” Thereafter Machado filed his notice of appeal, and we appointed counsel to represent him. II. At the heart of all Machado’s arguments and efforts is his contention that the district court lacked subject matter jurisdiction to enter the final order of forfeiture nearly a full year after the judgment incorporating the sentence had been entered. Federal Rule of Criminal Procedure 32(d)(2), which was in effect when Machado was sentenced, stated that: “At sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment.” Fed. R. Cr. P. 32(d)(2) (1997). 5 Machado contends that the district court’s failure to comply with Rule 32(d)(2) when it sentenced him on July 28, 1997 means that the court lost jurisdiction to enter a forfeiture order, and did not have the power to do so when it attempted to enter the order of forfeiture on July 14, 1998. The government’s position is that Rule 32(d)(2) is not jurisdictional, and instead is a claim-processing rule that can be forfeited if the party waits too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U.S. ____, ____, 126 S. Ct. 403, 405-07 (2005). We lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal litigant who makes an appeal as of right to file a notice of appeal “within 10 days after the later of . . . the entry of either the judgment or the order being appealed . . . .” Fed. R. App. P. 4(b)(1)(A)(i). Under that rule the district court may extend that ten day period by up to thirty days if a party shows excusable neglect. Fed. R. App. P. 4(b)(4). Even if there is excusable neglect the latest a defendant may wait before appealing a final order in a criminal case is forty days after it was entered. See id. Filing a timely notice of appeal is “mandatory and jurisdictional” and if a defendant fails to do so, a court of appeals is “without jurisdiction to review the decision on the merits.” See Budinich v. Becton Dickinson and Co., 486 U.S. 196, 6 203, 108 S. Ct.	[ publish ] in the northern states court of appeals for the eleventh circuit filed _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ u. s. court of appeals eleventh circuit october 2, 2006 no. 05 - 11420 thomas k. kahn _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ clerk d. c. docket no. 97 - 00238 - cr - dlg united states of america, case - appellee, versus gregorio machado, defendant - appellant. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ appeal from the confederate states district court for the southern district of florida _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ( october 2, 2006 ) before tjoflat and carnes, circuit judges and hodges, * district judge. carnes, circuit judge : * honorable william terrell hodges, united states district judge for the middle district of florida, sitting by designation. i. in march 1997 a grand jury indicted gregorio machado on thirteen counts of conspiracy to launder drug purchases. the indictment included a forfeiture sentence pursuant to 18 u. s. c. § 982. before reaching a plea agreement within the government, machado entered a guilty plea in may 1997. the written plea agreement contained an appeal waiver provision and a monetary forfeiture provision through which machado pledged “ to fully and unreservedly cooperate and assist the united states in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located. ” that provision included a detailed list of all the money and items that were to be forfeited. machado says that the value of those listed items was approximately $ 12 million at the time of the indictment. on july 28, 1997, the district court sentenced machado to 51 months imprisonment. at sentencing, a assistant united states attorney representing the government moved to dismiss eleven of the thirteen sides of the indictment in accordance with the plea agreement, and stated that “ [ t ] he united states has not dismissed count i or the forfeiture count at the very end. ” the court responded, “ count ii through xi [ i ] are dismissed. count i and the forfeiture count remain in full force and effect. ” the formal judgment in the case, which was entered on july 2 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to count 1, and accordingly adjudged him guilty of conspiracy to launder money, and sentenced him to a term of 51 months. the only mention of forfeiture in the judgment entry is this sentence : “ a separate forfeiture order shall be entered in this cause. ” on march 11, 1998, about seven months later the government filed a motion for an order of forfeiture. the following day the district court granted the motion and entered a preliminary order of forfeiture. on the government ’ s motion, the district court on april 24, 1998 entered an amended order to include additional property. a final order of forfeiture was entered on july 14, 1998, nearly a year after sentencing. machado did not attempt to appeal any of those orders, including the final order of forfeiture. instead, on september 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to fed. r. cr. p. 41 ( e ), requesting a return of “ all documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [ forfeiture ] actions. ” in that motion machado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. at a hearing on january 20, 1999, the district court ordered the documents returned to 3 machado. the government could not fully comply because some of the original documents were destroyed, but it ultimately returned others to machado. machado filed a pro se motion for sanctions which was ultimately denied. on april 23, 2003, three months shy of five years after entry of the final order of forfeiture, machado filed under rule 60 ( b ) ( 4 ) a pro se motion for relief from that order “ in light of this circuit ’ s decision in united states v. petrie, 302 f. 3d 1280, 1284 – 85 ( 11th cir. 2002 ). ” machado contended that because the district court had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for that reason the order must be vacated. because the district court had previously issued an order prohibiting the parties from filing any new motions until all pending motions were resolved, the district court denied that motion. machado appealed, but we affirmed after concluding that the denial of his rule 60 ( b ) ( 4 ) motion on that ground was not an abuse of discretion. we never reached the merits of machado ’ s claim. on may 17, 2004, machado filed pursuant to rule 60 ( b ) another motion to vacate the forfeiture order. after the district court denied that motion a week later, we affirmed on november 17, 2004, explaining that rule 60 ( b ) cannot be used to challenge criminal forfeiture orders. again, we did not reach the merits of machado ’ s claim. 4 on december 17, 2004, which was six years and five months after the final order of forfeiture was entered, machado filed yet another pro se motion seeking return of the forfeited property. this one asserted that he was proceeding under fed. r. cr. p. 41 ( g ) and the all writs act, 28 u. s. c. § 1651 ( a ). in february 2005 the district court denied the motion in a three - sentence order : “ this cause came before the court upon defendant ’ s motion for return of property pursuant to fed. r. crim. p. rule 41 ( e )... filed december 17, 2004. the court having reviewed the pertinent portions of the record, and being otherwise fully advised in the premises, it is ordered and adjudged that defendant ’ s motion for return of property is denied. done and ordered in chambers, at miami, florida this 7th day of february, 2005. ” thereafter machado filed his notice of appeal, and we appointed counsel to represent him. ii. at the heart of all machado ’ s arguments and efforts is his contention that the district court lacked subject matter jurisdiction to enter the final order of forfeiture nearly a full year after the judgment incorporating the sentence had been entered. federal rule of criminal procedure 32 ( d ) ( 2 ), which was in effect when machado was sentenced, stated that : “ at sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment. ” fed. r. cr. p. 32 ( d ) ( 2 ) ( 1997 ). 5 machado contends that the district court ’ s failure to comply with rule 32 ( d ) ( 2 ) when it sentenced him on july 28, 1997 means that the court lost jurisdiction to enter a forfeiture order, and did not have the power to do so when it attempted to enter the order of forfeiture on july 14, 1998. the government ’ s position is that rule 32 ( d ) ( 2 ) is not jurisdictional, and instead is a claim - processing rule that can be forfeited if the party waits too long to raise the argument, as machado did. see united states v. eberhart, _ _ _ _ _ u. s. _ _ _ _, _ _ _ _, 126 s. ct. 403, 405 - 07 ( 2005 ). we lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. federal rule of appellate procedure 4 requires a criminal litigant who makes an appeal as of right to file a notice of appeal “ within 10 days after the later of... the entry of either the judgment or the order being appealed.... ” fed. r. app. p. 4 ( b ) ( 1 ) ( a ) ( i ). under that rule the district court may extend that ten day period by up to thirty days if a party shows excusable neglect. fed. r. app. p. 4 ( b ) ( 4 ). even if there is excusable neglect the latest a defendant may wait before appealing a final order in a criminal case is forty days after it was entered. see id. filing a timely notice of appeal is “ mandatory and jurisdictional ” and if a defendant fails to do so, a court of appeals is “ without jurisdiction to review the decision on the merits. ” see budinich v. becton dickinson and co., 486 u. s. 196, 6 203, 108 s. ct.	[ PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U. S. COURT OF APPEALS ELEVENTH CIRCUIT October 2, 2006 No. 05 - 11420 THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 97 - 00238 - CR - DLG UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GREGORIO MACHADO, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2006) Before TJOFLAT and CARNES, Circuit Judges and HODGES, * District Judge. CARNES, Circuit Judge: * Honorable William Terrell Hodges, United States District Judge for the Middle District of FllridA, sitting by designation. I. In March 1997 a grand jury indicted Gregorio Machado on thirteen counts of conspiracy to launder drug proceeds. The indictment included a forfeiture count pursuant to 18 U. S. C. § 982. After reaching a plea agreement with the government, Machado entered a guilty plea in May 1997. The written plea agreement contained an appeal waiver provision and a detailed forfeiture provision through which Machado pledged “ to fully and unreservedly cooperate and assist the United Dtatee in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located. ” That provision included a detailed list of all the money and items that were to be forfeited. Machado says that the value of those listed items was approximately $ 12 million at the time of the indictment. On July 28, 1997, the district court sentenced Machado to 51 months imprisonment. At sentencing, the Assistant United States Attorney representing the government moved to dismiss eleven of the thirteen counts of the indictment in accordance with the plea agreement, and stated that “ [t] he United States has not dismissed Count I or the forfeiture count at the very end. ” The co*rR responded, “ Count II through XI [I] are dismissed. Count I and the forfeiture count remain in full force and effect. ” The formal judgment in the case, which was entered on July 2 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder money, and sentenced him to a term of 51 months. The only mention of forfeiture in the judgment entry is this sentence: “ A separate Forfeiture order shall be entered in this cause. ” On March 11, 1998, about seven months later the government filed a motion for an order of forfeiture. The following day the district court granted the motion and entered a preliminary order of forfeiture. On the government ’ s motion, the district court on April 24, 1998 entered an amended order to include additional property. A final order of forfeiture was entered on July 14, 1998, nearly a year after sentencing. Machado did not attempt to appeal any of those orders, including the final order of forfeiture. Instead, on September 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to Fed. R. Cr. P. 41 (e ), requesting a return of “ all documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [forfeiture] actions. ” In that motion Machado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. At a hearing on January 20, 1999, the district court ordered the documents returned to 3 Machado. The government could not fully comply because some of the original documents were destroyed, but it ultimately returned others to Machado. Machado filed a pro se motion for sanctions which was ultimately denied. On April 23, 2003, three months shy of five years after entry of the final order of forfeiture, Machado filed under Rule 60 (b) (4) a pro se motion for relief from that order “ in light of this Circuit ’ s decision in United States v. Petrie, 302 F. 3d 1280, 1284 – 85 (11th Cir. 2002 ). ” MaVhxdo contended that because the district c0ur$ had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for that reason the order must be vacated. Because the district court had previously issued an order prohibiting the parties from filing any new motions until all pending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60 (b) (4) motion on that ground was not an abuse of discretion. We never reached the merits of Machado ’ s claim. On May 17, 2004, Machado filed pursuant to Rule 60 (b) another motion to vacate the forfeiture order. After the district court denied that motion a week later, we affirmed on November 17, 2004, explaining that Rule 60 (b) cannot be used to challenge criminal forfeiture orders. Again, we did not reach the merits of Machado ’ s claim. 4 On December 17, 2004, which was six years and five months after the final order of forfeiture was entered, Machado filed yet another pro se motion seeking return of the forfeited property. This one asserted that he was proceeding under Fed. R. Cr. P. 41 (g) and the All Writs Act, 28 U. S. C. § 1651 (a ). In February 2005 the district court denied the motion in a three - sentence order: “ This cause came before the Court upon Defendant ’ s Motion for Return of Property Pursuant to Fed. R. Crim. P. Rule 41 (e ). .. filed December 17, 2004. The Court having reviewed the pertinent portiojQ of the record, and being otherwise fully advised in the premises, it is ordered and adjudged that Defendant ’ s Motion for Return of Property is Denied. Done and ordered in Chambers, at Miami, Florida this 7th Day of February, 2005. ” Thereafter Machado filed his notice of appeal, and we appointed counsel to represent him. II. At the heart of all Machado ’ s arguments and efforts is his contention that the district court lacked Eubjec% matter jurisdiction to enter the final order of forfeiture nearly a full year after the judgment incorporating the sentence had been entered. Federal Rule of Criminal Procedure 32 (d) (2 ), which was in effect when Machado was sentenced, stated that: “ At sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment. ” Fed. R. Cr. P. 32 (d) (2) (1997 ). 5 Machado xintends that the district court ’ s TailKre to comply with Rule 32 (d) (2) when it sentenced him on July 28, @p97 means that the court lost jurisdiction to enter a forfeiture order, and did not have the power to do so when it attempted to enter the order of forfeiture on July 14, 1998. The government ’ s position is that Rule 32 (d) (2) is not jurisdictional, and instead is a claim - processing rule that can be forfeited if the party waits too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U. S. ____, ____, 126 S. Ct. 403, 405 - 07 (2005 ). We lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal litigant who makes an appeal as of right to file a notice of appeal “ within 10 days after the later of. .. the entry of either the judgment or the order being appealed. .. . ” Fed. R. App. P. 4 (b) (1) (A) (i ). Under that rule the district court may extend that ten day period by up to thirty days if a party shows excusable neglect. Fed. R. App. P. 4 (b) (4 ). Even if there is excusable neglect the latest a defendant may wait before appealing a final order in a criminal case is forty days after it was entered. See id. Filing a timely notice of appeal is “ mandatory and jurisdictional ” and if a defendant fails to do so, a court of appeals is “ without jurisdiction to review the decision on the merits. ” See Budinich v. Becton Dickinson and Co. , 486 U. S. 196, 6 203, 108 S. Ct.	[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS CIRCUIT October 2, No. 05-11420 THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 97-00238-CR-DLG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORIO Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2006) Before TJOFLAT and CARNES, Circuit and HODGES,* District Judge. CARNES, Judge: * Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation. I. In March 1997 a grand jury indicted Machado on thirteen counts conspiracy to launder drug proceeds. The indictment included a forfeiture count to 18 U.S.C. 982. After reaching a agreement with the Machado entered a guilty plea in May 1997. The written plea agreement contained an appeal waiver and a detailed forfeiture provision through which Machado pledged “to fully and unreservedly cooperate and assist the United States in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes located.” That provision included a detailed list of all money and items that to be forfeited. says that the value of those listed items was approximately $12 million at the time of the On July 1997, the district court sentenced Machado to 51 months imprisonment. At sentencing, Assistant States Attorney representing the moved to eleven of the thirteen counts of the indictment in accordance the plea agreement, and stated “[t]he United States has not Count I or forfeiture count the end.” The court responded, “Count II through are Count the forfeiture count remain in full force and effect.” The formal judgment in the case, which was entered on July 2 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder and sentenced him to a term of 51 months. The only mention of forfeiture in the judgment entry is this sentence: “A separate Forfeiture order shall entered in this cause.” On March 11, 1998, seven months later the government filed a motion for an order of forfeiture. The following day the district court granted motion and entered a preliminary order of forfeiture. the government’s motion, the court on April 1998 entered order include additional property. A final order of forfeiture was entered on July 14, 1998, a year after sentencing. Machado did not attempt to appeal any of those orders, including the final on September 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to R. Cr. P. 41(e), requesting a return of documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [forfeiture] actions.” In that motion Machado claimed that the documents he would reveal that of his property had been improperly forfeited. At a hearing on January 20, 1999, the district court ordered the documents to 3 Machado. The government could comply because some of the original documents were destroyed, but it ultimately returned others to Machado. Machado filed pro se motion for sanctions which was ultimately denied. On April 23, three months shy of five years after entry the final order of Machado filed under Rule 60(b)(4) a pro se motion for relief from that order “in of this decision in United States v. Petrie, 302 F.3d 1280, 1284–85 (11th Cir. 2002).” Machado contended that because the district court had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for reason the order must vacated. Because the district court had previously issued an order prohibiting the parties from filing new motions all pending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60(b)(4) motion on that ground was an abuse of We never reached the merits of Machado’s claim. On May 2004, Machado pursuant to 60(b) another motion to vacate forfeiture order. After the district court denied that motion a later, we affirmed on November 17, 2004, explaining that Rule 60(b) cannot used to challenge criminal forfeiture orders. Again, we did reach the merits Machado’s claim. 4 On December 17, 2004, which was six years and five months the final order of forfeiture was entered, Machado filed yet another pro se motion seeking return of forfeited property. one asserted that he was proceeding under Fed. R. Cr. P. 41(g) and All Writs 28 U.S.C. § 1651(a). In February 2005 the district denied the motion in a three-sentence order: “This cause came before the Court upon Motion for Return of Property to Fed. R. Crim. Rule . . . filed December 17, 2004. Court having reviewed the pertinent portions of record, and being otherwise advised in the premises, it is adjudged that Defendant’s for Return of Property is Done and ordered in Chambers, at Miami, Florida this Day of February, 2005.” Thereafter Machado filed his notice of appeal, and we appointed counsel to represent II. At the heart of Machado’s arguments and efforts his contention that the district court lacked subject matter jurisdiction to enter the final order of forfeiture nearly full year after the judgment incorporating the sentence had entered. Federal Rule of Criminal Procedure 32(d)(2), which in effect when Machado was sentenced, stated that: “At a final order of forfeiture shall be made part of the sentence and included in the Fed. R. Cr. P. 32(d)(2) (1997). 5 Machado that the district court’s failure to comply with 32(d)(2) when it sentenced him on 1997 means that the court lost jurisdiction to enter forfeiture order, and did have the power to do so when it to enter the order of forfeiture on July 14, 1998. The position is that Rule 32(d)(2) is not jurisdictional, and instead is a claim-processing rule that can be forfeited if the party waits too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U.S. ____, S. Ct. 405-07 We lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal who makes an appeal as of right to file a notice of appeal “within 10 days after the later of . . . the entry of either the judgment or the order being appealed . . .” Fed. R. App. P. 4(b)(1)(A)(i). Under that the district court extend that ten day period by to thirty days party shows excusable neglect. Fed. R. App. P. 4(b)(4). Even if there is excusable neglect the latest a defendant may wait appealing final order in a criminal case is forty days it was See id. Filing a timely notice of appeal is “mandatory and and if defendant fails to do so, a court of appeals is “without jurisdiction to the decision on the merits.” See Dickinson and Co., 486 U.S. 6 203, S. Ct.	[pUBlisH] In ThE UNitEd STATEs Court Of AppealS FOr the EleVENTH circuit FILed ________________________ u.S. cOURt oF aPpeALS ELEVenTH ciRCUIt OcTOBEr 2, 2006 NO. 05-11420 thOmaS K. KahN ________________________ cLERk D. C. DOckEt nO. 97-00238-Cr-Dlg UNItEd stATes OF aMEriCa, PLAInTIfF-aPPEllEE, vErsuS GRegorio MaCHAdo, DeFEndaNT-apPEllANt. ________________________ APpeal FroM tHe uNITeD STAtes DIsTrIcT CoURT FOR tHe sOuTheRN DISTRICT OF FLoridA _________________________ (OCtober 2, 2006) BefORE tJOFLaT aNd caRNEs, CIrcUit jUDgEs and HodGeS,* distRiCt juDGe. cArnES, ciRCuIt JUdGE: * hONOrABlE wIlLIAM TErrEll hodGES, uniTeD STATeS DiSTrICT judgE for ThE MiDdLe DisTRIct Of fLoriDA, siTtinG bY DESIGNAtIon. I. In March 1997 a GRANd JURy INDiCTed GREGORIo MaChado ON thirTEEN cOUnTS oF cONspIRaCY tO LaUNder druG PROcEEDS. ThE INDictMENT InCludEd a forFEITurE CoUnT pURsUANt tO 18 u.s.c. § 982. aFtEr ReacHINg A plEa AgreEMeNT WiTH thE goVernMent, MaChaDo EnterEd A guiLty pLEa In mAy 1997. tHE WrittEn PLea agReeMent COnTAinEd An aPPeaL wAIvEr ProviSIon ANd a DEtailed FoRfEITURE PrOVISION ThrouGH WHIch MAcHAdo pleDgED “tO FUlLy AND uNReserveDLy coOperAtE aNd aSSIsT THE uniTed StateS IN the fOrFeItuRE AnD rEcOVeRY OF The forfeITed AsseTS, portIOns THErEoF, Or ThEIr SubSTITuTEs wHErEVeR loCateD.” ThAT ProVIsiOn iNCLUDEd A DEtaiLeD liST of alL THE mONEy AND ITeMS thAt WERe tO be FOrFeITed. mAchaDO SAys ThaT the VAlue OF thOse LiSted ItEms Was APPROxIMatElY $12 MIlLIon AT The tIMe oF the indICtMENT. ON jUly 28, 1997, ThE DISTrIcT court SENTENceD MaCHaDO to 51 moNthS iMPrisONMenT. aT senTenCiNG, the aSSISTAnT uniTed STATes ATtornEy RepRESeNting tHe gOveRNMEnt moVED tO dIsmisS ElEven Of tHE thirTeen cOUNTS of THe iNDiCtMeNT In accoRDance WIth tHe pLEA agrEEMENT, ANd StatEd tHaT “[t]HE UnItED stAtes has not dIsMissed CoUnT i Or ThE FOrFEiTuRe coUNt at THe Very eNd.” ThE cOuRt ReSpOnDED, “COUnt Ii THROugH XI[i] ArE dIsmiSsEd. cOUNT I aND thE FoRfEITUrE coUnT RemAIn in FuLL FORce and efFECt.” tHe FoRmAL jUdGmENT in ThE casE, WHICh was enTeRed On juLY 2 30, 1997, REciTEd ThE NUMbErs oF tHe couNTS thAt had beeN dismISSED, StAtEd that THe DEfeNdANT haD pLeAdeD GUIlty To CouNt 1, aNd ACCORdinGLy adJuDGED hIM gUiLTY OF coNSPiraCy to LAuNDER MoneY, AnD SeNtencED hIM To a TERM oF 51 mONTHs. thE oNlY MeNTiOn Of FOrfEituRE IN thE jUDgmENt eNtRy Is tHIS sENTence: “A SepArAte ForfeiTURe oRder ShaLL Be ENtEREd in THIS CAuSE.” ON mARcH 11, 1998, aBOut seVEn moNThs lAter THE GOVErNmENt fIleD A MOTIOn for an ordEr OF FOrfEiTuRE. THe FOlloWInG dAY the DiStrICT COuRt GrAntEd THE moTIOn AnD EnTereD a PrELIMiNArY Order oF fORFeITure. on The goveRNMenT’s MotiOn, the DiStRicT cOuRT On APRIl 24, 1998 entEreD AN ameNded oRder To INCLUde AdditIOnaL pRopERTY. A FiNal oRDER oF FOrFeiTUre wAS ENtERed oN JUly 14, 1998, Nearly a year aFter SeNTENcInG. MACHaDo DID noT AtTempT tO aPpeaL AnY of those ordERs, INcLUDING thE FInAl oRDer oF ForfEiTurE. INsteAd, On SEptembER 4, 1998, ABout sIx weEKS AfTer enTRY of The fINAl orDER, HE FiLEd A pro se moTiON fOR RETUrN Of pRopeRTy PUrSUant tO fEd. R. Cr. p. 41(E), REQUesTiNg A rETuRN oF “ALL DOCumeNtS aND RecorDS seiZEd or TaKeN FrOM thE movAnt, hiS buSinEsses, AnD RESIDEnCE tHaT WERe uSeD AS EvIDENCe In THe CRimInAl and [FoRFEitUre] aCtiOnS.” iN THAt moTIoN maCHado clAiMED THAT the dOCUments hE soUGHT wouLd ReVeAL That SOme of hiS propeRtY hAD BEeN IMpRoperly forFEiTeD. At a HEaRING on JanuARy 20, 1999, the distriCt CoUrT oRDEreD The dOcUMENTs RetUrNed To 3 mAcHADo. the GoveRNMEnT CoULd NOt fULly CoMPlY beCaUsE sOme Of The oRIgInaL DOCUmENtS were DEStRoyeD, BUt iT UltImaTELy rEtUrned oThERS TO mAcHADo. MACHADo fiLEd A Pro sE motioN foR sANCtIons WHICh waS ULtIMATely deNIed. On APrIL 23, 2003, tHRee mONtHS shy of FiVE YEARS AFtEr EnTRY oF tHe fiNAl oRDer OF FOrFEituRe, MACHaDo fileD uNDeR RuLE 60(B)(4) A PRO SE MoTIoN FoR reLIEf frOm ThAt ORDER “In LiGht OF tHIs cIRCUit’s DeCIsioN In uNItEd STATES V. PEtrIE, 302 F.3D 1280, 1284–85 (11TH cIr. 2002).” MAChaDo coNteNdED THAT beCAusE thE DIsTriCt cOUrt HAd Not ENtEReD tHE fiNAl ORder OF FORfeItuRE uNTiL TwElVE monthS AFTEr He WAS SenTeNCED, It lAckEd JUrIsdIctION tO Do sO, AnD FOR that REASON thE ORdER MUsT be VaCAtED. bECAUse tHe DisTrIcT court Had PrEviouSlY ISsUED An orDeR PrOhibItING THE partiEs FRoM fIliNg aNY nEW moTIOnS unTIL all PeNDiNg motIoNS WeRE rEsOlVeD, THe distRicT coUrt DEnIed thaT mOTIon. MacHAdo aPPEAlEd, buT wE aFfiRMEd AFTER COncludIng THAT tHe deniaL oF hiS RuLe 60(b)(4) MOTIOn on that GroUND wAs nOt aN AbUSE OF disCrETion. wE NeVeR rEACHEd thE MeRITS OF maCHAdo’S clAim. ON maY 17, 2004, mAchAdo FiLeD PURsuANT TO rULe 60(b) aNOthEr moTIoN tO VaCate THE forfEiture ordeR. afTEr The DiSTRICt coUrt DenieD tHaT mOTioN a wEeK lATeR, we AFFiRmed oN nOVeMBEr 17, 2004, ExPLaiNiNG tHAt rUlE 60(B) cAnNoT be uSeD TO cHAlLENge CRimiNal FoRfeituRe ordERS. aGAiN, WE DID NOT reaCh the MerITs Of macHADO’s claIm. 4 oN decembeR 17, 2004, WhICH was six YEaRs And five mOntHs AFTER The FiNaL ORder oF FOrfeItUrE waS entered, mAcHadO FILed YeT ANoTHEr PRO Se mOTION SEEKINg ReTurN of The forfEiteD PROpErtY. This ONE aSseRTeD tHAt HE wAs PrOCEEdINg uNder feD. R. Cr. p. 41(g) anD thE aLL wRiTS Act, 28 u.s.C. § 1651(A). in FEBRuary 2005 ThE dIStrICt COURt DEniEd thE MOTiON In A THreE-SENtEnCE ORdEr: “thIS cAUSe caMe BeFOrE tHE CoUrt UPOn dEFendAnt’S MoTioN FOr RetUrN of ProPeRtY pURsUaNT TO FEd. R. cRIM. p. ruLE 41(E) . . . filed DecEMbEr 17, 2004. THe cOurt HAVInG rEviEwED The PERTINeNT PoRTIONS of THE RECoRD, ANd beInG otheRWise fuLlY ADVIsed iN The pREMIsEs, It is orderEd AnD adjUDGed tHaT dEfEnDAnT’s moTioN FoR ReTuRN of pROpErTY IS denIeD. DONE anD OrdereD in cHAmBers, AT mIamI, FLOrida ThIS 7th Day of FEbRuaRy, 2005.” THeReafteR machaDo fileD hIs NoTICE OF aPPEal, aNd WE ApPoinTEd cOunSeL tO rEprEsEnT Him. ii. AT ThE Heart Of ALL macHaDO’s ARguMenTs anD EffOrTs iS HiS conTeNTIOn thaT THE diSTrict COuRT LAcKEd SubJeCT maTter juRIsDIctIoN to ENTeR THe finaL ORdER OF fORfEiTUre nearLy A Full YEAr aftER tHE JudGMENT iNCORpoRatInG THe seNTENcE hAd BEen ENTERed. feDErAL RUlE OF CRiMInal proCeduRe 32(d)(2), WHicH wAS in efFecT wHEN mAchado WAs SEnTEnced, sTaTEd THaT: “aT sEnTencInG, A Final OrdEr Of ForfEiTure ShAll BE mAdE ParT oF THe SenTENce anD iNClUdEd IN tHE JuDGmEnt.” fEd. r. cR. P. 32(d)(2) (1997). 5 MAcHADo cONTENdS THAt thE diStricT Court’S fAILurE TO coMpLY WIth rULe 32(d)(2) WheN IT sENtenced hiM On jULy 28, 1997 mEans That the COUrT LOST JUrIsDICTIOn To EnTer A ForfEiTURe order, and DID not Have the POwEr tO Do so whEn it aTteMPTEd to EnTer ThE oRdER of foRFEItURe On juLy 14, 1998. The GOVERNMENT’s positIOn Is thAt rule 32(D)(2) IS NoT JUrIsdiCtIONal, ANd INSTEaD IS A ClaIm-ProCesSiNg RulE that can Be FORfEiteD IF The paRTY waiTs TOO Long To rAiSE ThE ARguMenT, aS MACHaDo Did. sEe UnitEd StaTEs V. eBErhART, _____ u.S. ____, ____, 126 s. ct. 403, 405-07 (2005). We laCK JuRISdicTIOn to DEcIdE the issuE oF whETheR tHE DiStriCT cOUrT had JurisDiCTioN TO BElaTEdlY eNTeR thE fInal OrdeR of fOrFeiTURE. FEDerAl RULe of APPElLatE proCeDuRE 4 ReQUiRes A CrImINaL LiTigANt WhO makEs aN ApPEaL AS of rIghT To file A nOtiCE of aPPeaL “WItHIN 10 dAys AFter tHE lATer Of . . . the ENTry OF EithER tHE JuDGmEnT OR The oRdEr BEING ApPeaLed . . . .” FED. R. apP. P. 4(b)(1)(A)(i). under THat rUlE the disTRICT CouRT maY ExTend ThAt tEN daY pERIOd By uP tO ThIrTy days If a PArtY ShOWS EXCUsABLE NEGlECT. feD. R. apP. P. 4(B)(4). eVEn If TherE Is exCUSABLe neGLecT tHe Latest A DeFeNdAnT maY wAit BEFoRE aPPeALING A FINal orDER in a CrIMiNaL cAsE iS fOrTy daYS After It wAs enteRED. see ID. fIlINg a tIMely NoTiCE OF APPeal is “ManDAtory ANd JURIsDiCTioNAl” aNd iF a deFeNDaNt FaiLS To do so, a couRt of AppeALS IS “witHOuT juriSDICTIon To review ThE decisION ON tHE meriTs.” see buDIniCh v. BEcTon dICkINsON And co., 486 u.s. 196, 6 203, 108 s. Ct.	[PUBLISH] IN THE UNITED STATES COURT OFAPPEALS FORTHEELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTHCIRCUITOctober 2, 2006 No. 05-11420 THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 97-00238-CR-DLGUNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORIO MACHADO, Defendant-Appellant.________________________ Appeal from theUnitedStates District Court for the Southern District of Florida _________________________ (October 2, 2006) Before TJOFLAT andCARNES, Circuit Judges and HODGES,* DistrictJudge. CARNES, Circuit Judge: * Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation. I. In March 1997 a grand jury indicted Gregorio Machado on thirteencounts of conspiracy to launder drug proceeds. The indictment included a forfeiture count pursuantto 18U.S.C. § 982. After reaching aplea agreement with the government, Machado entered a guilty plea in May 1997. Thewritten plea agreement contained an appeal waiver provision and adetailed forfeiture provision through which Machado pledged“to fully and unreservedly cooperate and assisttheUnited States in theforfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located.”That provision included adetailedlist ofall the money anditemsthat were to beforfeited. Machado says that thevalue of those listed itemswasapproximately$12 millionat the time of the indictment. On July 28, 1997, the district court sentenced Machado to 51 months imprisonment.At sentencing, the Assistant United States Attorney representing the government moved to dismiss eleven of the thirteen counts of the indictment in accordancewith the plea agreement, and stated that “[t]he United States hasnot dismissed Count I or the forfeiture countat the very end.” The court responded, “Count II through XI[I] are dismissed. Count I and the forfeiture countremain in full forceandeffect.” Theformal judgment in the case, which was entered on July 2 30, 1997, recited the numbers ofthe counts that had been dismissed,stated that the defendant hadpleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder money, and sentencedhim to a term of 51 months. The only mention of forfeiture in the judgment entry isthis sentence: “A separate Forfeiture order shall be entered in this cause.” On March 11, 1998, about seven months laterthe government filed a motion for an orderof forfeiture. The following day thedistrict court granted the motion and entered a preliminary order of forfeiture. On the government’s motion, the district court on April 24, 1998enteredan amended order to includeadditional property. A finalorder offorfeiture was entered on July 14, 1998, nearlya year after sentencing. Machado did not attempt to appealany ofthose orders, including the finalorder of forfeiture. Instead, on September4, 1998, about sixweeks after entry ofthe final order, he filed a prose motion for return of propertypursuant to Fed. R. Cr.P. 41(e), requesting a return of“all documents and records seized or taken from the movant, his businesses,and residence that were used as evidence in the criminal and [forfeiture] actions.” In that motionMachado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. At a hearing on January 20, 1999, the districtcourt ordered the documents returned to 3 Machado. The government could not fully complybecause someof the original documentsweredestroyed, but itultimately returned others to Machado. Machadofiled a pro se motion for sanctions which was ultimately denied. On April 23,2003, three months shy of five years after entry of the final order of forfeiture, Machado filed under Rule 60(b)(4) a pro se motion for relieffrom that order “in lightofthis Circuit’s decision in UnitedStates v. Petrie, 302F.3d1280, 1284–85 (11th Cir. 2002).” Machado contended that becausethedistrict court had not entered the finalorder of forfeiture untiltwelve months after he wassentenced, it lacked jurisdiction to do so, and for that reasonthe order must be vacated. Because the district court hadpreviously issued an order prohibiting the parties from filing any new motions until allpending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60(b)(4)motion on that ground was not an abuse of discretion. We never reached the merits of Machado’s claim. On May 17,2004, Machado filed pursuant to Rule 60(b) another motion to vacate the forfeiture order. After the district court denied that motion a week later, we affirmed on November 17,2004, explaining that Rule 60(b) cannot be usedto challenge criminal forfeiture orders. Again, we did not reach the merits of Machado’s claim. 4 On December 17, 2004, which was six yearsand five monthsafter the final order of forfeiture was entered, Machado filed yet anotherpro semotion seeking return ofthe forfeited property. This one asserted that he was proceeding under Fed. R.Cr. P.41(g) and the AllWrits Act, 28 U.S.C. § 1651(a). In February 2005 the district court denied the motion ina three-sentence order: “This cause came before theCourt upon Defendant’s Motion for Return ofProperty Pursuant to Fed. R. Crim. P. Rule 41(e) . . . filedDecember 17, 2004. The Court having reviewed the pertinent portions of therecord, and being otherwise fully advisedin thepremises, it is orderedand adjudged that Defendant’s Motionfor Return ofProperty isDenied. Done and ordered in Chambers,at Miami, Floridathis 7th Day of February, 2005.” Thereafter Machadofiled his notice of appeal, and we appointed counselto represent him. II. At the heartof allMachado’s arguments and effortsishis contention thatthe district court lacked subject matter jurisdiction to enter the final order offorfeiture nearly a full year after the judgment incorporating the sentence had been entered. Federal Rule of CriminalProcedure 32(d)(2), which wasin effect when Machado wassentenced, stated that: “At sentencing, a final orderof forfeiture shall be made part of thesentence and included in the judgment.” Fed. R. Cr. P. 32(d)(2) (1997). 5 Machado contendsthat the district court’s failure to comply with Rule 32(d)(2) when it sentenced him on July 28, 1997 means that thecourt lost jurisdiction to enter a forfeiture order,and didnot have the power to do sowhen it attempted to enter theorder of forfeiture on July 14, 1998. The government’s positionisthat Rule 32(d)(2) is not jurisdictional, and instead is a claim-processing rule that canbe forfeitedifthe party waits too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U.S. ____,____, 126 S. Ct. 403, 405-07(2005). We lack jurisdiction to decide the issueof whether the district courthad jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal litigant who makes an appeal as of right to file a notice of appeal “within 10 days after the later of . . . theentry of either the judgment or the order being appealed . . . .” Fed.R. App. P. 4(b)(1)(A)(i). Under that rule the district court may extend that tenday period by upto thirty days ifaparty shows excusable neglect.Fed.R.App. P. 4(b)(4). Even if there is excusable neglect the latest a defendant may wait beforeappealinga final order in a criminal case is forty days after it was entered. See id.Filing a timely noticeof appealis “mandatory and jurisdictional” and if a defendant fails to do so, a court of appeals is “without jurisdiction to review thedecision on the merits.”See Budinichv. Becton Dickinson and Co., 486 U.S.196, 6 203, 108 S. Ct.	_[PUBLISH]_ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS _ELEVENTH_ CIRCUIT October 2, _2006_ _No._ 05-11420 _THOMAS_ _K._ KAHN __________________________ CLERK D. C. _Docket_ No. 97-00238-CR-DLG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORIO MACHADO, _Defendant-Appellant._ ________________________ Appeal from the United States District Court _for_ the Southern District _of_ Florida _________________________ _(October_ 2, 2006) Before _TJOFLAT_ and CARNES, Circuit Judges _and_ HODGES,* District _Judge._ _CARNES,_ Circuit Judge: * _Honorable_ William Terrell Hodges, United States District Judge for the Middle District _of_ _Florida,_ sitting _by_ designation. I. In March _1997_ a grand jury _indicted_ Gregorio Machado _on_ thirteen counts of _conspiracy_ to _launder_ drug _proceeds._ The _indictment_ included a forfeiture count pursuant to 18 _U.S.C._ § 982. After reaching a _plea_ agreement _with_ the government, Machado _entered_ _a_ _guilty_ plea in May 1997. The written plea agreement contained an appeal waiver provision and _a_ detailed forfeiture provision through which Machado pledged “to _fully_ and _unreservedly_ _cooperate_ _and_ assist _the_ United States _in_ the forfeiture and recovery of the _forfeited_ assets, portions thereof, or their substitutes wherever located.” _That_ provision included a detailed list of all the money and _items_ that were to be forfeited. Machado says _that_ the value of those listed items was approximately $12 million at the time of the _indictment._ On _July_ _28,_ 1997, the district court _sentenced_ _Machado_ to _51_ months _imprisonment._ At sentencing, the Assistant United States Attorney representing the _government_ moved to dismiss eleven _of_ _the_ thirteen counts of _the_ _indictment_ in _accordance_ with the plea agreement, _and_ stated that “[t]he United States has not dismissed Count I or _the_ forfeiture count at the very end.” The court responded, _“Count_ II through XI[I] are _dismissed._ _Count_ _I_ and the forfeiture count remain in full force and effect.” The _formal_ judgment in the case, which was entered on July 2 30, 1997, recited the _numbers_ of the counts _that_ had been dismissed, _stated_ _that_ _the_ defendant had pleaded guilty to Count _1,_ and _accordingly_ adjudged him guilty of conspiracy to launder money, and sentenced _him_ _to_ a term of _51_ months. The _only_ mention of forfeiture in the judgment entry is this sentence: _“A_ separate Forfeiture order shall be entered in this _cause.”_ _On_ March 11, _1998,_ about seven _months_ later the government _filed_ a _motion_ for an order of forfeiture. The following day the district court granted the motion and _entered_ a _preliminary_ order of forfeiture. _On_ the government’s motion, the district court _on_ April 24, 1998 entered an amended order to include additional property. A final order of _forfeiture_ was entered on July 14, 1998, nearly _a_ _year_ _after_ sentencing. Machado did _not_ attempt _to_ appeal any of those orders, _including_ the _final_ order of forfeiture. Instead, on _September_ 4, 1998, about six weeks after entry _of_ the final order, _he_ filed a pro _se_ motion _for_ return of property pursuant _to_ Fed. R. Cr. P. 41(e), _requesting_ a _return_ of “all documents _and_ _records_ seized or taken from the movant, his businesses, and residence _that_ were used as evidence in the criminal and _[forfeiture]_ _actions.”_ In _that_ motion Machado claimed that the documents _he_ sought would reveal that some of his property had been _improperly_ _forfeited._ At a hearing _on_ _January_ 20, 1999, _the_ district court ordered the _documents_ returned to 3 _Machado._ The government could _not_ _fully_ comply because some of the original documents were destroyed, but it ultimately _returned_ others to Machado. _Machado_ filed a _pro_ _se_ _motion_ for sanctions which was ultimately denied. On April 23, 2003, three months shy of five years _after_ entry of the final order of _forfeiture,_ Machado filed _under_ Rule 60(b)(4) a pro se motion for _relief_ _from_ that order “in light of this Circuit’s _decision_ in United States v. Petrie, _302_ _F.3d_ _1280,_ 1284–85 (11th Cir. 2002).” Machado _contended_ that _because_ _the_ district court had not entered the final order of forfeiture until twelve _months_ after he was sentenced, it lacked jurisdiction to do so, and _for_ that reason the order must be vacated. _Because_ the district court had previously issued an order prohibiting the parties from filing any new motions _until_ all pending motions were resolved, _the_ district court denied that motion. Machado appealed, _but_ we affirmed after concluding that the denial of his _Rule_ 60(b)(4) motion on that ground was not an abuse of _discretion._ We never reached the merits of Machado’s claim. On May _17,_ _2004,_ Machado filed pursuant to Rule 60(b) another motion to _vacate_ the forfeiture order. After the district court denied that motion a week later, we affirmed _on_ _November_ 17, 2004, explaining that Rule 60(b) _cannot_ be used to _challenge_ criminal forfeiture _orders._ Again, we _did_ _not_ reach _the_ merits of Machado’s claim. _4_ _On_ December 17, 2004, _which_ was six years and five months after the final _order_ of forfeiture was entered, Machado filed yet another pro se motion seeking _return_ of _the_ forfeited property. This one _asserted_ _that_ he was proceeding _under_ Fed. R. Cr. P. 41(g) and the _All_ Writs _Act,_ _28_ U.S.C. § 1651(a). In February 2005 the district court denied the motion in a three-sentence _order:_ “This cause came before the _Court_ upon _Defendant’s_ Motion for Return of _Property_ Pursuant to Fed. R. Crim. P. Rule 41(e) . . . filed December 17, 2004. _The_ Court having reviewed the pertinent portions _of_ the record, _and_ being otherwise fully advised in the premises, _it_ is ordered and adjudged _that_ Defendant’s Motion for Return _of_ _Property_ is _Denied._ Done and ordered in Chambers, at Miami, Florida this 7th _Day_ of February, 2005.” Thereafter Machado filed his notice of appeal, and we _appointed_ counsel to represent him. II. At the heart of all _Machado’s_ arguments and efforts is his contention that the district court _lacked_ _subject_ _matter_ _jurisdiction_ to enter the final order of forfeiture nearly _a_ full year after _the_ judgment incorporating the sentence had been entered. Federal Rule of Criminal Procedure _32(d)(2),_ which was in effect when Machado was _sentenced,_ _stated_ that: “At sentencing, a final order of forfeiture shall be made part of the _sentence_ _and_ included in the judgment.” Fed. R. Cr. P. _32(d)(2)_ (1997). 5 Machado contends that the district court’s failure to _comply_ with Rule 32(d)(2) when it _sentenced_ him on July 28, 1997 _means_ that _the_ court lost jurisdiction to enter _a_ forfeiture order, _and_ did not have _the_ power to do so when it attempted to _enter_ the order of forfeiture on July 14, _1998._ The government’s position is that Rule 32(d)(2) is not jurisdictional, _and_ instead is a claim-processing _rule_ that can be forfeited if the party _waits_ too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U.S. _____,_ ____, _126_ S. Ct. 403, 405-07 (2005). We lack jurisdiction _to_ _decide_ _the_ issue of _whether_ the district court had _jurisdiction_ to belatedly enter the final order of forfeiture. Federal Rule of _Appellate_ Procedure 4 requires a _criminal_ litigant _who_ makes an appeal as of _right_ to file a _notice_ _of_ appeal “within 10 days after _the_ later _of_ . . . _the_ _entry_ _of_ either the judgment or the order being _appealed_ _._ _._ . .” Fed. R. App. P. 4(b)(1)(A)(i). _Under_ that rule the district _court_ _may_ extend that ten day period by _up_ to thirty _days_ if a party shows excusable neglect. Fed. R. App. P. _4(b)(4)._ Even if there is excusable neglect the latest _a_ defendant may wait before appealing _a_ final order in a criminal case is forty _days_ _after_ _it_ was entered. See _id._ Filing _a_ timely notice _of_ appeal is “mandatory and jurisdictional” _and_ if a defendant fails to do so, a _court_ _of_ _appeals_ is “without jurisdiction _to_ review the _decision_ on the _merits.”_ _See_ Budinich _v._ _Becton_ Dickinson and _Co.,_ 486 _U.S._ 196, 6 203, 108 S. Ct.
206 Ga. 477 (1950) 57 S.E.2d 578 CAPITOL DISTRIBUTING COMPANY et al v. REDWINE, Revenue Commissioner; et vice versa. 16887, 16901. Supreme Court of Georgia. January 12, 1950. Rehearing Denied February 17, 24, 1950. 483 MacDougald, Troutman, Sams & Schroder, and Dan MacDougald Jr., for plaintiffs. Eugene Cook, Attorney-General, and M. H. Blackshear Jr., Assistant Attorney-General, for defendant. CANDLER, Justice. (After stating the foregoing facts.) 1. There is set out above a copy of the enrolled act as attached to and made a part of the petition as amended. As enrolled the act shows on its face that taxation on wines is included in the title and in the body. The plaintiffs in error contend that there were irregularities during the process of the legislation such as to controvert any valid reference to wines in the title. A portion of the petition as amended alleges in substance that the words, "to increase the excise taxes upon domestic wines, foreign wines, and domestic and foreign fortified wines," were neither read before nor voted on by the legislature nor did they appear in the title when the bill was before the legislature. Instead, it is contended that those words were composed and inserted by some agency or method other than the joint action of the two houses after the bill was voted on and passed. Further, it is contended that the words, "and that the caption be amended accordingly," were written underneath the body of the amendment, but that the same were not constitutionally sufficient to authorize the first above-quoted words which were written into the title. The petition as amended attempts to show the facts relied on by photostatic copies of the bill, its amendment during process of passage, and Legislative Journal entries. Involved in these contentions there are several provisions of the 484 State Constitution, alleged to be violated, as follows: article III, section 1, paragraph 1 (Code, Ann. § 2-1301), reading: "The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives," the contention being that the alleged new matter inserted in the manner alleged constitutes an unlawful delegation of legislative authority in violation thereof; article III, section VII, paragraph VII (Code, Ann. § 2-1907), reading: "Every bill, before it shall pass, shall be read three times, and on three separate days, in each House, unless in cases of actual invasion, or insurrection, but the first and second reading of each local bill, shall consist of the reading of the title only, unless said bill is ordered to be engrossed," it being contended that, the entire act not being read, this clause was violated; article III, section VII, paragraph VII (Code, Ann. § 2-1908), reading: "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof," the contention in this connection being that the act having made reference in the body to wines, without having reference to the same in the title, is in violation of this provision; and article I, section I, paragraph III (Code, Ann. § 2-103), reading: "No person shall be deprived of life, liberty, or property, except by due process of law," it being contended that the legislature undertook to have the caption changed after the act passed and did so in terms so vague, uncertain, and indefinite as not to apprise anyone thereof. Before a determination of the questions above presented, it is obvious that consideration must be given to the effect thereon of the decisions of this court on the principle commonly known as the conclusive presumption of an enrolled act. In Atlantic Coast Line R. Co. v. State, 135 Ga. 545 (69 S. E. 725), it was held: "A duly enrolled act properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements; and it is not permissible to show, by the legislative journals or other records, that it did not receive on its passage a majority vote of all the members elected to each house, or that there was 485 any irregularity in its enactment." See also DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708), and Williams v. MacFeeley, 186 Ga. 145 (197 S. E. 225). A case cited and relied on by the plaintiffs in error is Solomon v. Commissioners of Cartersville, 41 Ga. 157. It held that an act of the General Assembly signed by Rufus B. Bullock, Governor, May 26, 1869, was invalid because it was not signed within the time prescribed by the Constitution. The Solomon case, supra, was cited in DeLoach v. Newton, supra, and the court, after discussing the possible uses of the legislative journals, said: "A possible use for them might arise on the construction of an act. In Solomon v. Commissioners of Cartersville, 41 Ga. 157, the journals of the General Assembly were consulted to ascertain when the legislature adjourned. In Gormley v. Taylor, 44 Ga. 76, a query was put on this subject." Evidently the court in DeLoach v. Newton, supra, did not consider the case of Solomon v. Commissioners of Cartersville, supra, any obstacle to reaching its decision. Neither do we, in this case, find anything in it to prevent us from following DeLoach v. Newton, Atlantic Coast Line R. Co. v. State, and Williams v. MacFeeley (supra), in circumstances where, as in the present case, the attempt is to impeach a legislative act in reference to matters alleged to have transpired before the signing of the bill by the Governor, and where the issue is not whether or not the Governor did actually sign the bill within the time required by the Constitution. The plaintiffs in error argue that the decided cases in this State on the question of conclusive presumption of an enrolled act do not, as to any of them, embrace a situation exactly like that presented by the facts in the instant case. If not in exact detail with the facts here involved, the principles in the cited cases upholding the conclusive presumption doctrine are sufficiently controlling for us to adhere to the same rule in this case. Thus, we reach the conclusion that where, as in this case, a copy of an enrolled act purporting to contain the signatures of the Speaker of the House, Clerk of the House, President of the Senate, Secretary of the Senate, and the Governor, is set out and made a part of the amended petition, which seeks to show invalidity upon the contention that a portion of the title was composed and inserted by some method or agency in an irregular manner during the process of its passage, neither the 486 legislative journals nor photostatic copies of the bill are permissible to impeach the act, because of the conclusive presumption against any irregularity in its enactment; and, accordingly, this court cannot consider violations of the State Constitution that are dependent on being so shown. 2. The act is assailed as being in violation of article III, section VII, paragraph VIII of the State Constitution (Code, Ann. § 2-1908), particularly the portion thereof reading, "No law shall pass which refers to more than one subject matter," because, as the plaintiffs in error contend, it embraces legislation on "malt beverages" and "wines." Specifically it is contended that the regulation, control, and taxation of malt beverages is a separate subject-matter from that of wines. Seeking to illustrate, it is insisted that they have been dealt with as a separate series of legislation; that in certain court decisions the term "malt beverages" has been held not to include "wines"; that legislative declarations in the wine act of 1935, to the effect that the same was to promote temperance and prosperity of the people of Georgia and foster the growing of grapes, fruits, and berries on Georgia farms, indicate that wines are recognized by the legislature as being in a different subject-matter category from that of malt beverages; and that executive and administrative treatment has recognized them as separate. The "subject" of an act, within the meaning of the constitutional provision that no act shall contain more than one subject, is regarded as the matter or thing forming the groundwork of the act. Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37); 50 Am. Jr. 172, § 191; Mayes v. Daniel, 186 Ga. 345, 353 (198 S. E. 535). In Whitley v. State, 134 Ga. 758 (68 S. E. 716), involving an act of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or drinks, the dual subject-matter provision of the State Constitution was invoked and held not to be applicable, it being pointed out that "all these things were germane to and formed a part of the general purpose of the act. They were not so entirely distinct and different as to constitute different subject-matters within the meaning of the paragraph of the constitution." See also Carroll v. Wright, 131 Ga. 728 (63 S. E. 260). Looking to the language of the act in the instant case, the general purpose is illustrated by words and figures *487 that unmistakably stand out as indicating that an increase in excise taxes is the thing chiefly sought. Whatever may have been the reasons prompting the legislature in the year 1935 to	206 ga. 477 ( 1950 ) 57 s. e. 2d 578 capitol distributing company et al v. redwine, revenue commissioner ; 102 vice versa. 16887, 16901. supreme court of georgia. january 12, 1950. rehearing denied february 17, 24, 1950. * 483 macdougald, troutman, sams & schroder, and dan macdougald jr., for plaintiffs. eugene cook, attorney - general, and m. h. blackshear jr., assistant attorney - general, for defendant. candler, justice. ( after stating the foregoing facts. ) 1. there is set out above a copy of the enrolled act as attached to and made a part of the petition as amended. as enrolled taxation act shows on its face that taxation on wines is included in the title and in the body. the plaintiffs in error contend that there were irregularities during the process modifying the legislation such as to controvert any valid reference to wines in the title. a portion of the petition as amended alleges in substance that the words, " to increase the excise taxes upon domestic wines, foreign wines, and domestic and foreign fortified wines, " were neither read before nor voted on by the legislature nor did they appear in the title when the bill was before the legislature. instead, it is contended that those words were composed and inserted by some agency or method other than the joint action of the two houses after the bill was voted on and passed. further, it instead contended that the words, " and that the caption be amended accordingly, " were written underneath the body of the amendment, but that the same were not constitutionally sufficient to authorize the first above - quoted words which were written into the title. the petition as an attempts to show the facts relied on by photostatic copies of the bill, each amendment during process without passage, and legislative journal entries. involved in these contentions there are several provisions of the * 484 state constitution, alleged to be violated, as follows : article iii, section 1, paragraph 1 ( rule, ann. § 2 - 34 ), reading : " the legislative jurisdiction of the state shall be vested in a general assembly which shall consist of a senate and house of representatives, " the contention being that the alleged new matter inserted in the manner alleged constitutes an unlawful delegation of legislative authority in violation thereof ; article iii, section vii, paragraph vii ( code, ann . § 2 - 1907 ), reading : " every bill, before it shall pass, shall be read three times, and on three separate days, in each house, unless in cases of actual invasion, or insurrection, but the first and second reading of each local bill, shall consist of the reading of the title only, unless said bill is ordered to be engrossed, " it being contended that, the entire act not being read, this clause was violated ; article iii, section vii, paragraph vii ( code, ann. § 2 - 1908 ), reading : " no law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof, " the contention in this connection being that the act having made reference in the body to wines, without having reference to the same in the title, is in violation of this provision ; and article i, section i, paragraph iii ( code, ann. § 2 - 103 ), reading : " no person shall be deprived of life, liberty, or property, except by due process of law, " it being contended that the legislature undertook to have the caption changed after the act passed and did so in terms so vague, uncertain, and indefinite as not to apprise anyone thereof. before a determination of the questions above presented, it is obvious that consideration must be given to the effect thereon of the decisions of this court on the principle commonly known as the conclusive presumption of an enrolled act. in atlantic coast line r. co. v. state, 135 ga. 545 ( 69 s. e. 725 ), it was held : " a duly enrolled act properly authenticated by the regular presiding officers of both houses of the general assembly, approved by the governor, and deposited with the secretary of state as an existing law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements ; and it is not permissible to show, by the legislative journals or other records, that it did not receive on its passage a majority vote of all the members elected to each house, or that there was * 485 any irregularity in its enactment. " see also deloach v. newton, 134 ga. 739 ( 68 s. e. 708 ), and williams v. macfeeley, 186 ga. 145 ( 197 s. e. 225 ). a case cited and relied on by the plaintiffs in error is solomon v. commissioners of cartersville, 41 ga. 157. it held that an act of the general assembly signed by rufus b. bullock, governor, may 26, 1869, was invalid because it was not signed within the time prescribed by the constitution. the solomon case, supra, was cited in deloach v. newton, supra, and the court, after discussing the possible uses of the legislative journals, said : " a possible use for them might arise on the construction of an act. in solomon v. commissioners of cartersville, 41 ga. 157, the journals of the general assembly were consulted to ascertain when the legislature adjourned. in gormley v. taylor, 44 ga. 76, a query was put on this subject. " evidently the court in deloach v. newton, supra, did not consider the case of solomon v. commissioners of cartersville, supra, any obstacle to reaching its decision. neither do we, in this case, find anything in it to prevent us from following deloach v. newton, atlantic coast line r. co. v. state, and williams v. macfeeley ( supra ), in circumstances where, as in the present case, the attempt is to impeach a legislative act in reference to matters alleged to have transpired before the signing of the bill by the governor, and where the issue is not whether or not the governor did actually sign the bill within the time required by the constitution. the plaintiffs in error argue that the decided cases in this state on the question of conclusive presumption of an enrolled act do not, as to any of them, embrace a situation exactly like that presented by the facts in the instant case. if not in exact detail with the facts here involved, the principles in the cited cases upholding the conclusive presumption doctrine are sufficiently controlling for us to adhere to the same rule in this case. thus, we reach the conclusion that where, as in this case, a copy of an enrolled act purporting to contain the signatures of the speaker of the house, clerk of the house, president of the senate, secretary of the senate, and the governor, is set out and made a part of the amended petition, which seeks to show invalidity upon the contention that a portion of the title was composed and inserted by some method or agency in an irregular manner during the process of its passage, neither the * 486 legislative journals nor photostatic copies of the bill are permissible to impeach the act, because of the conclusive presumption against any irregularity in its enactment ; and, accordingly, this court cannot consider violations of the state constitution that are dependent on being so shown. 2. the act is assailed as being in violation of article iii, section vii, paragraph viii of the state constitution ( code, ann. § 2 - 1908 ), particularly the portion thereof reading, " no law shall pass which refers to more than one subject matter, " because, as the plaintiffs in error contend, it embraces legislation on " malt beverages " and " wines. " specifically it is contended that the regulation, control, and taxation of malt beverages is a separate subject - matter from that of wines. seeking to illustrate, it is insisted that they have been dealt with as a separate series of legislation ; that in certain court decisions the term " malt beverages " has been held not to include " wines " ; that legislative declarations in the wine act of 1935, to the effect that the same was to promote temperance and prosperity of the people of georgia and foster the growing of grapes, fruits, and berries on georgia farms, indicate that wines are recognized by the legislature as being in a different subject - matter category from that of malt beverages ; and that executive and administrative treatment has recognized them as separate. the " subject " of an act, within the meaning of the constitutional provision that no act shall contain more than one subject, is regarded as the matter or thing forming the groundwork of the act. lloyd v. richardson, 158 ga. 633 ( 124 s. e. 37 ) ; 50 am. jr. 172, § 191 ; mayes v. daniel, 186 ga. 345, 353 ( 198 s. e. 535 ). in whitley v. state, 134 ga. 758 ( 68 s. e. 716 ), involving an act of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or drinks, the dual subject - matter provision of the state constitution was invoked and held not to be applicable, it being pointed out that " all these things were germane to and formed a part of the general purpose of the act. they were not so entirely distinct and different as to constitute different subject - matters within the meaning of the paragraph of the constitution. " see also carroll v. wright, 131 ga. 728 ( 63 s. e. 260 ). looking to the language of the act in the instant case, the general purpose is illustrated by words and figures * 487 that unmistakably stand out as indicating that an increase in excise taxes is the thing chiefly sought. whatever may have been the reasons prompting the legislature in the year 1935 to	206 Ga. 477 (1950) 57 S. E. 2d 578 CAPITOL DISTRIBUTING COMPANY et al v. REDWINE, Revenue Commissioner; et vice versa. 16887, 16901. Supreme Court of Georgia. January 12, 1950. Rehearing Denied February 17, 24, 1950. * 483 MacDougald, Troutman, Sams & Schroder, and Dan MacDougald Jr. , for plaintiffs. Eugene Cook, Attorney - General, and M. H. Blackshear Jr. , Assistant Attorney - General, for defendant. CANDLER, Justice. (After stating the foregoing fqsts.) 1. There is set out above a copy of the enrolled act as attached to and made a part of the petition as amended. As enrolled the act shows on its face that taxation on wines is included in the title and in the body. The plaintiffs in error contend that there were irregularities during the process of the l3Rislation such as to controvert any valid reference to wines in the title. A portion of the petition as amended alleges in substance that the words, " to increase the excise taxes upon domestic wines, foreign wines, and domestic and foreign fortified wines, " were neither read before nor voted on by the legislature nor did they appear in the title when the bill was before the legislature. Instead, it is contended that those words were composed and inserted by some agency or method other than the joint action of the two houses after the bill was voted on and passed. Further, it is contended that the words, " and that the caption be amended accordingly, " were written underneath the body of the amendment, but that the same were not constitutionally sufficient to authorize the first above - quoted words which were written into the title. The petition as amended attempts to dhod the facts relied on by photostatic copies of the bill, its amendment during process of passage, and Legislative Journal entries. Involved in these contentions there are several provisions of the * 484 State Constitution, alleged to be violated, as follows: article III, section 1, paragraph 1 (Code, Ann. § 2 - 1301 ), reading: " The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives, " the contention being that the alleged new matter inserted in the manner alleged constitutes an unlawful delegation of legislative authority in violation thereof; article III, section VII, paragraph VII (Code, Ann. § 2 - 1907 ), reading: " Every bill, before it shall pass, shall be read three times, and on three separate days, in each House, unless in cases of actual invasion, or insurrection, but the first and second reading of each local bill, shall consist of the reading of the title only, unless said bill is ordered to be engrossed, " it being contended that, the entire act not being read, this clause was violated; article III, section VII, paragraph VII (Code, Ann. § 2 - 1908 ), reading: " No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof, " the contention in this connection being that the act having made reference in the body to wines, without having reference to the same in the title, is in violation of this provision; and article I, section I, paragraph III (Code, Ann. § 2 - 103 ), reading: " No person shall be deprived of life, liberty, or property, except by due process of law, " it being contended that the legislature undertook to have the caption changed after the act passed and did so in terms so vague, uncertain, and indefinite as not to apprise anyone thereof. Before a determination of the questions above presented, it is obvious that consideration must be given to the effect thereon of the decisions of this court on the principle commonly known as the conclusive presumption of an enrolled act. In Atlantic Coast Line R. Co. v. State, 135 Ga. 545 (69 S. E. 725 ), it was held: " A duly enrolled act properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements; and it is not permissible to show, by the legislative journals or other records, that it did not receive on its passage a majority vote of all the members elected to each house, or that there was * 485 any irregularity in its enactment. " See also DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708 ), and Williams v. MaXFeel$y, 186 Ga. 145 (197 S. E. 225 ). A case cited and relied on by the plaintiffs in error is Solomon v. Commissioners of Cartersville, 41 Ga. 157. It held that an act of the General Assembly signed by Rufus B. Bullock, Governor, May 26, 1869, was invalid because it was not signed within the time prescribed by the Constitution. The Solomon case, supra, was cited in DeLoach v. Newton, supra, and the court, after discussing the possible uses of the legislative journals, said: " A possible use for them might arise on the construction of an act. In Solomon v. Commissioners of Cartersville, 41 Ga. 157, the journals of the General Assembly were consulted to ascertain when the legislature adjourned. In Gormley v. Taylor, 44 Ga. 76, a query was put on this subject. " Evidently the court in DeLoach v. Newton, supra, did not consider the case of Solomon v. Commissioners of Cartersville, supra, any obstacle to reaching its decision. Neither do we, in this case, find anything in it to prevent us from following DeLoach v. Newton, Atlantic Coast Line R. Co. v. State, and Williams v. MacFeeley (supra ), in circumstances where, as in the present case, the attempt is to impeach a legislative act in reference to matters alleged to have transpired before the signing of the bill by the Governor, and where the issue is not whether or not the Governor did actually sign the bill within the time required by the Constitution. The plaintiffs in error argue that the decided cases in this Stqt@ on the question of conclusive presumption of an enrolled act do not, as to any of them, embrace a situation exactly like that presented by the facts in the instant case. If not in exact detail with the facts here involved, the principles in the cited cases upholding the conclusive presumption doctrine are sufficiently controlling for us to adhere to the same rule in this case. Thus, we reach the concluZioj that where, as in this case, a copy of an enrolled act purporting to contain the signatures of the Speaker of the House, Clerk of the House, President of the Senate, Secretary of the Senate, and the Governor, is set out and made a part of the amended petition, which seeks to show invalidity upon the contention that a portion of the title was composed and inserted by s0Ke method or agency in an irregular manner during the process of its passage, neither the * 486 legislative journals nor photostatic copies of the bill are permissible to impeach the act, because of the conclusive presumption against any irregularity in its enactment; and, accordingly, this court cannot consider violations of the State Constitution that are dependent on being so shown. 2. The act is assailed as being in violation of article III, section VII, paragraph VIII of the State Constitution (Code, Ann. § 2 - 1908 ), particularly the portion thereof reading, " No law shall pass which refers to more than one subject matter, " because, as the plaintiffs in error contend, it embraces legislation on " malt beverages " and " wines. " Specifically it is contended that the regulation, control, and taxation of malt beverages is a separate subject - matter from that of wines. Seeking to illustrate, it is insisted that they have been dealt with as a separate series of legislation; that in certain co tr4 decisions the term " malt beverages " has been held not to include " wines "; that legislative declarations in the wine act of 1935, to the effect that the same was to promote temperance and prsp4rity of the people of Georgia and foster the growing of grapes, fruits, and berries on Georgia farms, indicate that wines are recognized by the legislature as being in a different subject - matter category from that of malt beverages; and that executive and administrative treatment has recognized them as separate. The " subject " of an act, within the meaning of the constitutional provision that no act shall contain more than one subject, is regarded as the matter or thing forming the groundwork of the act. Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37 ); 50 Am. Jr. 172, § 191; Mayes v. Daniel, 186 Ga. 345, 353 (198 S. E. 535 ). In Whitley v. State, 134 Ga. 758 (68 S. E. 716 ), involving an act of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or drinks, the dual subject - matter provision of the State Constitution was invoked and held not to be applicable, it being pointed out that " all these things were germane to and formed a part of the general purpose of the act. They were not so entirely distinct and different as to constitute different subject - matters witYln the meaning of the paragraph of the constitution. " See also Carroll v. Wright, 131 Ga. 728 (63 S. E. 260 ). Looking to the language of the act in the instant case, the general purpose is illustrated by words and figures 487 that unmistakably stand out as indicating that an increase in excise taxes is the thing chiefly sought. Whatever may have been the reasons prompting the legislature in the year 1935 to	206 Ga. 477 (1950) 57 S.E.2d 578 CAPITOL DISTRIBUTING COMPANY et al REDWINE, Revenue Commissioner; vice versa. 16887, 16901. Supreme Court of Georgia. January 12, 1950. February 17, 24, 1950. 483 MacDougald, Troutman, Sams & and Dan Jr., plaintiffs. Eugene Cook, Attorney-General, and M. H. Blackshear Jr., Assistant Attorney-General, for CANDLER, Justice. (After stating the foregoing 1. There is set out above a copy of the act as attached to and made a part the petition as amended. As enrolled the act shows on face that taxation on wines is included in the title and in the body. The plaintiffs in error contend that there were irregularities during the process of the legislation such to controvert any valid reference to wines in the title. A portion of the petition as amended alleges in substance that the words, "to increase the excise taxes upon domestic wines, foreign wines, domestic and foreign fortified wines," were neither read before nor voted on by the legislature nor did they appear in the title when the bill was before the legislature. it is contended that those words were composed and inserted by some agency or other than the joint action of the houses after the bill voted on and passed. it is contended that the words, "and that the caption be amended accordingly," were written underneath the body of the amendment, but that the same were constitutionally sufficient authorize the above-quoted words which were written the title. The petition as amended attempts to show the facts on by photostatic copies of the bill, amendment process of passage, and Legislative Journal entries. Involved in these contentions there are several provisions of the 484 State Constitution, alleged to be violated, as follows: article III, section 1, 1 (Code, Ann. § 2-1301), reading: "The legislative power the State shall be vested in a Assembly which shall consist of Senate and House of Representatives," the contention being the alleged new matter inserted in the alleged constitutes an unlawful delegation of legislative authority in violation article III, section VII, VII (Code, Ann. § 2-1907), reading: "Every bill, before it shall shall be read three times, and on three separate days, in each unless in cases of actual insurrection, but the first and second reading of each local bill, consist of the reading of the title only, unless said bill is ordered to be engrossed," it being contended the entire act not being this clause was article III, section VII, VII (Code, Ann. § 2-1908), law shall pass which refers to more one subject matter, or contains matter different from what is expressed in the title thereof," the contention in this connection being that the act having made reference the body to wines, without having reference the same in the title, in of this provision; and I, section I, paragraph III (Code, Ann. § 2-103), reading: "No person shall be deprived of life, liberty, property, except by due process of law," it being contended that the legislature undertook to have the caption changed after the act passed and did in terms so vague, and indefinite not to anyone thereof. Before a determination the questions above presented, it is obvious that consideration must be given to the effect of the decisions of this court on the principle commonly known as the conclusive presumption of an enrolled act. In Atlantic Coast Line R. Co. v. State, 135 Ga. 545 S. E. 725), it was held: "A duly enrolled act properly authenticated by the presiding officers of both of the Assembly, by the Governor, and deposited with the Secretary of State as an law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements; and is not permissible to show, by the legislative journals or other that it did not receive on its passage a vote of all the members elected to each house, or that there was 485 any irregularity in its enactment." also DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708), and Williams v. MacFeeley, 186 Ga. (197 S. E. 225). case cited and relied on by the plaintiffs is Solomon v. of Cartersville, 41 Ga. 157. It an act of the General Assembly signed by Rufus Bullock, Governor, 26, 1869, was it was not signed within the time prescribed by the Constitution. The Solomon case, was cited in DeLoach v. Newton, supra, and court, the possible uses of the legislative journals, said: "A possible use for them might arise on the construction of an act. Solomon v. Commissioners of Cartersville, 41 Ga. 157, journals the General were consulted ascertain when the legislature adjourned. In v. Taylor, 44 Ga. 76, a was put on subject." Evidently the court in DeLoach v. Newton, supra, did not consider the case of Solomon v. Commissioners of Cartersville, supra, obstacle to reaching its decision. Neither do in this case, anything in it to prevent us from following DeLoach v. Newton, Atlantic Coast Line R. Co. v. State, and v. (supra), in circumstances where, as in the present case, the attempt is to impeach a act in reference alleged to have transpired before the signing of the bill by the Governor, and where the issue is not whether or not the Governor did sign the bill within the time required by the The plaintiffs in error argue that the decided cases in this State on the question conclusive presumption of an enrolled act do not, as of them, embrace a situation exactly like that presented by the facts in the instant case. If not in exact detail with the facts here involved, principles in the cited cases upholding the conclusive presumption doctrine are sufficiently for us to adhere the same rule in this case. Thus, we reach the conclusion that as in this case, a copy of an enrolled act purporting to contain the signatures of the Speaker of the House, Clerk of the House, President of the Senate, Secretary of the Senate, and the Governor, is set out and made a the amended petition, which seeks to show invalidity the contention that a of title was composed and inserted some or agency in an irregular manner during the process of its passage, neither the 486 journals nor copies of the bill permissible to impeach the act, because of the conclusive presumption against any irregularity in its enactment; and, accordingly, this court cannot consider violations of the State Constitution that are dependent on being so shown. 2. The act as in violation of article III, section VII, paragraph VIII of the State Constitution (Code, Ann. § 2-1908), particularly the portion thereof reading, "No law shall pass which refers to more than one because, as plaintiffs in contend, it embraces legislation on "malt beverages" and "wines." Specifically it is contended that the regulation, control, and of malt beverages is a separate subject-matter from that of wines. Seeking to illustrate, is insisted that they have been dealt with as a separate series of legislation; that in certain court the term "malt beverages" has held not to include "wines"; legislative declarations in the wine act of to the effect that same was to promote temperance and of the people of Georgia and foster of grapes, fruits, and berries on Georgia farms, indicate that wines are recognized by the legislature being in a different subject-matter category from that of malt beverages; and that executive and administrative treatment has recognized them as of an act, within the meaning of the constitutional provision that shall contain more than one subject, is regarded as the matter or thing forming the groundwork of the Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37); Am. Jr. 172, 191; Mayes Daniel, 186 Ga. 345, 353 (198 S. E. 535). In Whitley v. State, 134 Ga. 758 S. E. 716), involving an of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or the dual subject-matter provision of the State Constitution was invoked and held not to be applicable, it being pointed that "all these things were germane to and formed a of the general purpose of the They were not so entirely distinct and different as to constitute different subject-matters within the meaning of paragraph of the constitution." See also Carroll v. Wright, 131 Ga. (63 S. E. Looking to the language of the act the instant case, the purpose is illustrated by words and figures *487 that unmistakably stand as indicating that an increase in excise taxes is thing chiefly sought. Whatever may been the reasons prompting the legislature in the year 1935 to	206 Ga. 477 (1950) 57 S.e.2d 578 caPiToL DISTributIng COmPANY eT Al V. ReDWINE, RevenUE ComMISSIoNEr; eT viCe VERSa. 16887, 16901. SuprEMe coUrt of geOrGIA. jANUary 12, 1950. reHEaRINg dENiED feBRUarY 17, 24, 1950. 483 MaCdoUgAlD, TROUtMaN, sAMS & SChrOdER, AND Dan mACDoUgALd Jr., fOr pLaINTifFs. eUGEne cOok, AttoRnEy-GeNerAL, AND m. H. BlacKsheAr Jr., AssIStAnT ATTORneY-geneRal, FoR deFENdAnT. CANDleR, JustiCe. (aftEr StATinG tHe foREgoiNg fACTs.) 1. thERE iS set oUt aBovE a COpY of tHe EnRolLed aCT as aTTAChED To anD MAdE A PaRT Of ThE PETItioN aS AmEnDeD. AS EnRoLLED the ACt shoWs oN ITS facE THAt tAxAtIoN oN WINES Is iNcLUDEd iN ThE tiTlE AND iN THe bodY. thE PlAInTIFFS iN ErrOR cONtEnd tHaT tHERE wErE IrrEGUlAritIes dURINg the proCESS Of thE leGisLatIon Such aS to CONtrOvert Any vaLId ReFEREnce tO WINEs IN tHe tITLe. A PoRTIoN of THE pEtITIon as aMenDeD ALlEGEs In SUBStaNcE ThAT The WORdS, "tO inCREAsE the EXCIsE tAXES UpoN doMEstIC WiNEs, foREiGN winEs, anD dOMESTIC and ForEIGN FORtiFiED wInES," Were NEitheR rEAD befOrE Nor vOTed ON BY ThE lEGISlaTURE nOr DID they appEar in thE TItLE wHEN thE bilL WAs BEforE the LEGIslAtuRE. iNsteAd, iT Is COnTeNded thAt tHosE WOrds were COMpOsed ANd inSErTEd bY sOmE agency oR MeThoD otHeR ThaN tHE JoiNT AcTIon OF thE TwO hOUsEs AFtEr THe BilL waS VOTed oN And PASSeD. FuRther, it Is CONTendEd thaT thE WOrds, "anD ThAT The cAPTioN BE aMeNDed ACcoRDinglY," were wriTTen undErNEATH the BODY oF thE amEnDMEnT, bUT THaT THe saME WerE nOt conSTITutionaLLy sUFFicIEnt to AuTHorIZe The FIrst AbOVE-QUotEd wOrDs wHiCh wERe wRitTeN INtO the TItLE. thE pETITIon aS AMeNdED ATtEMPTs To shOW thE faCTS reLied On by PHoToSTatIC CopiES Of THE bilL, its amEndmenT duRiNg PRoCESS oF pASsaGe, ANd LeGIsLATIVe jOUrnAl eNtrIes. iNvolVeD in ThEse CONtenTIonS TheRe are sEveraL PROVisIOnS of THe 484 STate cOnStiTuTIoN, aLlegEd TO Be VioLatED, As fOLLOWs: articLe IIi, sEctiON 1, ParAGrApH 1 (coDE, aNN. § 2-1301), reaDIng: "thE lEGISLAtivE poWER of THe sTAtE sHall Be VEStEd iN a GeNERAl AssEmBLy whICH shall CONsIsT OF a SenAte And HoUse oF REPrEsenTatIves," thE cOnTEntION bEiNg thAT ThE ALlEgeD nEW Matter InSerTed In the mAnnER aLLEged CoNStItUtES AN UnlawFUl DEleGation of lEGislaTivE auTHOrITy In vIolatioN ThEreoF; aRtiCle IiI, SecTion viI, pARaGraPh Vii (codE, AnN. § 2-1907), rEADiNg: "EVeRy bILl, BEfORe iT shaLL pAss, ShaLL Be ReAd THRee TiMeS, And on ThReE sePARatE dayS, In eaCh HoUSE, uNLESS iN CAsES oF ACTUaL INvasION, or inSurRecTIon, BUt thE FIRST anD seCond reaDIng of EacH LoCAL bilL, SHAlL cONSIsT OF ThE reading of ThE title onLY, UnlESS sAID Bill IS oRDERed tO BE enGrOSSed," IT beiNg ContEnDED THaT, ThE eNtIrE ACt not bEinG rEAD, thiS claUSe Was VIOlATed; artiCLE iii, SEctiON VII, PaRAgrapH viI (COdE, aNn. § 2-1908), rEADing: "No Law SHalL pasS whICh refErS To mOrE THAn One suBJECt Matter, oR ContAiNS mAtTeR DIfFerENT froM WHaT Is ExPREsSed in The tITle THeReof," ThE CoNTeNTIoN in This ConNEcTioN bEINg thAt tHe Act havIng mAde REfeREnCE in tHE bODy TO WinEs, WithoUT hAVING reFEreNCE to ThE SAme In the title, IS IN VIOLATiOn oF thiS pRoVISiOn; aNd ArTiCle I, SEctIOn i, ParAgrapH IiI (Code, Ann. § 2-103), reAdING: "No pErSon sHaLL Be dePRIVED oF LifE, lIBeRTY, Or pRopERtY, ExCEpt by dUe PRoCEsS oF LaW," It beinG CONteNdEd tHAt thE LEGisLaTUre UndErtoOk TO hAvE the cAPTiON CHANGeD afTeR THE aCt paSsEd AnD DiD SO IN TErms sO Vague, UNCErTaIn, AnD InDefiniTe AS NOT TO ApPRIsE anYOnE THEREoF. BEfOrE a DEtErMiNaTion oF the QueStiONS ABovE PrEseNTed, it is obviOus ThAt CONSidErATIoN Must Be GivEn tO the EfFeCt thEREon oF THE dEciSions of THIs COUrT On THe PriNcIPle COMMONLy kNOwN AS ThE ConCLUSIvE PrESumPTIoN oF An eNroLLED AcT. In AtLanTiC COast lINE r. co. V. sTate, 135 ga. 545 (69 s. e. 725), It wAs heLd: "a DULY ENRoLLEd acT PropeRly aUTHENTicAted BY ThE reGuLAR preSIdING OFfIcErS of BoTH HoUsEs OF tHE gEneral ASsEmbly, aPPROVEd By tHe goVernoR, ANd dePOsITeD WitH THE SEcrETArY Of STATE aS an eXISTiNg Law, WIll bE concluSively PRESumeD To hAvE Been enACTED iN aCCoRdAnce With the COnStitUTiONaL RequIRemEnTs; and it is NOT pErMisSiBlE TO shOw, By thE lEGISLATIVE joUrnAls Or OTHer rEcorDs, tHAt It DId nOt RecEiVE On its PaSSaGE a mAjorITY voTe Of AlL ThE MEmBERs ElECtEd tO eAcH HOUse, Or ThAT theRE WAS 485 anY IRrEGulAriTY In ItS ENAcTmEnT." SEe aLSo dELOaCh V. NeWton, 134 ga. 739 (68 S. E. 708), ANd wilLiAMs v. mACfEeLeY, 186 gA. 145 (197 s. E. 225). A Case citEd ANd RELIed On BY ThE plaiNTIffS IN ErRor IS SolOMOn V. COMmiSsIOneRS Of cARTERSvIllE, 41 GA. 157. IT hElD That AN aCT OF THe gENeral AsSEMBlY SiGned bY RuFUs B. Bullock, GovERnoR, MAY 26, 1869, WAS iNVAlid BeCAuse It wAS NOT SIgneD WIthIn tHe TIMe PREsCRIBED by tHe coNStItUTION. tHe soLOmon cASe, suPRa, Was CiteD In DeloAcH V. NeWtON, supra, and tHE COurT, aFter DIsCuSSing the POSsIBle uSeS Of THe LEgiSLaTiVe JourNaLs, sAId: "A PosSIbLE use FOr thEm mIGht aRisE ON thE cOnStrUcTiON OF aN ACT. in soLoMon V. COMMIssIoneRS of cArtErSVILLe, 41 Ga. 157, tHe joUrNaLS of The gENErAl AsSeMBly WEre coNSuLteD TO ascerTain When THe LegisLATurE aDjOUrNEd. in GORmLeY V. taylOr, 44 ga. 76, a QUery WaS pUt On this SuBjeCt." eVideNTLy ThE cOurT IN DEloaCh V. nEwtoN, sUpRA, DId NoT cONSidER the CaSe Of sOLoMoN v. CoMMiSsionerS Of CaRTErSviLlE, SUPRa, ANY ObstACle To rEachiNG ItS DeCiSIoN. nEiThEr Do wE, in THIS CasE, FiNd ANythIng In IT To PreVENT uS FrOm FoLLOWInG DeloAcH v. nEWtON, AtLaNTIc Coast liNE R. cO. V. STatE, AND wILlIams V. mACFeElEy (SuPRA), in CiRcUmStaNCEs wHEre, aS in the pRESEnT caSE, the attempT IS to IMPeaCH A LEGISlATivE ACT In refereNCE To MATteRs AlleGEd TO HAve tRAnspIreD BEfORe THe sIGnInG of tHe BILl By tHe GOVERnOR, ANd WheRe The issuE iS NOT whETHeR OR noT thE GoVErNoR DiD aCTuALlY sIgn tHE bILl wiTHiN THe TiMe rEqUiReD BY The conStiTUtioN. ThE pLaINTifFS IN ERror aRGuE tHAt thE decIdEd cASeS iN THis sTAtE oN tHE qUEStIOn oF coNcLUsIvE pREsUMPTioN Of AN ENrOlled aCt Do noT, AS tO aNY of THeM, EMBRacE A sITuatioN eXActlY lIkE THAt PREseNTEd By tHe fACTs In tHe insTaNT case. IF noT in eXaCt dETAIL WitH the fAcTs Here iNVOLVED, thE PriNciPles in tHe CITeD CaseS uPholdiNG THE ConCLuSIvE preSUMptiON docTrInE Are SufFiciENTly conTrolLING For uS TO ADhERE TO THE samE RUle IN tHIs CaSe. tHUs, We ReacH THe conClUsIoN tHAt wHERe, as in ThiS case, A COpy oF aN EnRoLlED acT PURPortinG To conTain thE sIgNatUREs of ThE SpEaKer Of The hOuSE, CLErK OF tHE houSE, prEsIDEnT of THE seNATe, sEcretary OF The sENAte, anD THe gOVernor, IS set OUt and maDE A pArT Of ThE AMeNDEd PEtiTIOn, wHiCh sEeKs To Show InVaLidiTy upon the COnteNTIoN thaT A PORtION Of tHe titLe WAS cOMposED AND insErTED By SOME mEthOD OR AgeNcY iN An IRREGULAR MaNNER dUriNG ThE PRoCesS oF iTs paSSagE, NeITher ThE 486 LeGIsLAtive JouRnALS Nor PhotosTATIc coPies OF the BiLl ARE PerMISSIbLe To iMPEAch tHE aCt, BecAuSE of The cONCLUsIVe pReSUMptiON AgaINsT aNy IrrEgulArIty IN itS enACTmeNt; AND, acCOrdinGlY, This cOURT cANNot CONSiDEr VIOLationS oF The StAte cOnsTiTUtiON tHat Are depeNDEnT oN beING SO SHOWN. 2. The aCT IS aSsaILEd aS beINg IN VIolAtIoN Of aRTiCLE Iii, sectIon vii, ParagraPH viII oF tHe stAte CoNsTITUtIOn (cODe, aNN. § 2-1908), parTiCuLArLY tHe POrtion tHErEOF ReaDing, "No LaW Shall PaSs whIcH REFeRs to MorE THaN onE suBJeCT MAtTEr," becAUSE, as tHe plaIntiFFS iN eRror coNtEND, IT EmbrAceS legislaTion oN "MAlt bEVErAGes" aNd "wINeS." SpEcIfically iT Is coNTEndeD thAT THE RegulATIon, COnTRoL, aND tAxATioN of MAlt BEVerAgES iS A SEparATe SUBJeCT-mAttER FrOm ThAt of wIneS. sEEKINg To IllUstRaTE, iT iS InSisteD THAt They haVe been dealT WIth as A sEPArATe seRies OF lEGislatioN; THaT iN cERtAin cOuRt deCIsiONS The TeRm "mALt BeVErageS" Has bEEN HELD NOT TO iNcLuDE "WiNEs"; THAT lEgiSLAtive deClAratIoNs in tHE WinE Act Of 1935, To the eFFeCt ThaT tHe samE wAs to PrOMoTe teMPeRANCE ANd prOSPerITY of ThE peopLE oF GEorgIa anD fOsTeR THe growInG oF grAPEs, FRuItS, anD bERriEs oN geOrGIa faRms, INdicaTe ThAt wInEs ARe ReCOgnizED By thE lEGislATURe as beiNg in A diFFeReNt SubjecT-matTER CAtegOrY FRom ThaT oF mAlt BeverAgeS; AnD ThAT eXECuTIVE and AdmINiStRAtIvE TrEaTMent HAs rEcOgNIzed TheM aS SEpARATe. ThE "sUBJECT" OF aN AcT, witHiN The MEanINg oF tHe cOnStituTional PRovISioN THaT NO act SHAlL coNtAiN MORE THAN OnE sUbjeCt, IS ReGaRDED as ThE MatTER OR thING ForMiNg ThE gRouNdwOrk Of ThE ACT. LLoyd V. richArdsoN, 158 GA. 633 (124 s. e. 37); 50 am. JR. 172, § 191; mAyES v. DAniEl, 186 Ga. 345, 353 (198 s. E. 535). in WhItLEY V. STate, 134 Ga. 758 (68 s. E. 716), iNvolVing AN aCt oF 1907 tO PrOhIbiT ThE MAnuFacTUrE, SALe, AND othER tHings ReLatInG tO vArIouS nAMED fORMs OF alcohOLIC liQUORs or DrinKs, tHE DUaL subJECt-mATTer pRoviSioN oF THE stATE cOnStitUTIOn wAS invOKEd ANd HeLd not TO bE APpLicaBLe, It bEInG poiNTED OUT That "aLL these THiNGs WERE GeRmANE To and forMed A PaRt of tHE GeneRal PurpOse oF The Act. THEY WEre nOt SO eNtIrEly DIsTIncT aND dIFfErenT as To CONstiTUTe DiffereNT SUBJeCt-mATTers wiThIN The MEAnING of tHE PARaGRAph Of ThE coNStituTiON." See aLSO CARROlL V. WRIGHT, 131 ga. 728 (63 S. e. 260). LoOKIng tO THE LanguAgE Of tHe aCt in the inSTANT caSE, thE GeNERAL PUrposE IS IlLuSTRatEd by wORds And fiGuREs *487 tHaT unmIstAkably staNd OuT as INdIcATInG thAT An INcrEASE in ExcIsE tAXES iS THE tHing cHIEFLY SOughT. WHatevEr mAy HAVe Been ThE ReAsonS PRomPtinG ThE LEgiSLATUre in The YEar 1935 TO	206 Ga. 477 (1950) 57 S.E.2d 578 CAPITOL DISTRIBUTINGCOMPANY et al v. REDWINE, RevenueCommissioner; etvice versa. 16887, 16901.Supreme Court of Georgia. January 12,1950. Rehearing Denied February 17, 24, 1950.483 MacDougald, Troutman, Sams & Schroder, and Dan MacDougald Jr., for plaintiffs. Eugene Cook, Attorney-General, and M. H.Blackshear Jr., Assistant Attorney-General, for defendant. CANDLER, Justice. (After stating the foregoing facts.) 1. There is set outabove a copy of the enrolled act as attached toand made a part of the petition as amended. As enrolled the act shows on its facethat taxation onwines is included in the title and in the body.Theplaintiffs in error contend that there were irregularities during the processof the legislation such as to controvert any valid reference to wines in the title. A portion of the petition as amended alleges in substance that the words, "to increase the excise taxes upon domestic wines, foreign wines, and domestic and foreign fortified wines," were neither read before nor votedon by the legislaturenor did they appear inthe title when the bill was before the legislature. Instead, it is contended thatthose words were composed and insertedby some agency or methodother than the joint action of the two housesafter the bill wasvoted on and passed. Further, it is contended that the words, "and that the caption be amended accordingly," were written underneath the bodyof theamendment, butthat the same were not constitutionallysufficient to authorize the first above-quotedwordswhich were written into the title. The petition as amended attempts to show the factsrelied onbyphotostatic copies of the bill,its amendmentduring process of passage, and Legislative Journal entries. Involved in these contentions there are several provisions of the 484 StateConstitution, alleged to be violated, asfollows: article III, section 1, paragraph 1 (Code, Ann. §2-1301), reading: "The legislative power ofthe State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives," the contention being that the alleged new matter inserted in the manneralleged constitutesan unlawful delegation of legislative authorityinviolation thereof; article III, section VII, paragraph VII (Code,Ann. § 2-1907), reading: "Everybill, before it shall pass, shall be read threetimes, and on three separate days, in each House, unless incases ofactual invasion, or insurrection, but the first and second reading of each local bill, shall consist ofthereading of the title only,unless saidbill is orderedto beengrossed," it being contended that,theentire act notbeing read,thisclause was violated; article III, section VII, paragraph VII(Code, Ann. § 2-1908),reading: "Nolaw shall pass which refers to more than one subject matter,or contains matter different from what is expressedinthe titlethereof," the contention in this connection being that the act having made reference in the body to wines, without having reference tothe same in the title, is in violation of this provision; and article I, section I, paragraphIII (Code,Ann. § 2-103), reading:"No personshall be deprived of life, liberty,or property, except by due process of law," it being contendedthat the legislature undertook tohave the caption changed after the act passedand did so in terms so vague,uncertain, and indefinite as not to appriseanyone thereof. Before a determinationof the questions abovepresented, it is obvious that consideration must be given to the effectthereon of the decisions of this court onthe principle commonly known as the conclusive presumption of an enrolled act. In Atlantic Coast LineR. Co. v. State, 135 Ga. 545 (69 S.E. 725), it was held:"Aduly enrolled act properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existinglaw, will beconclusively presumed tohave been enacted inaccordance with the constitutional requirements; and it is not permissible to show, by the legislativejournalsor other records, that it did not receive on its passage amajority voteof all the members elected to each house, orthattherewas 485 any irregularity in its enactment." See also DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708), and Williams v. MacFeeley, 186 Ga. 145 (197 S.E. 225). A case cited and relied on by the plaintiffs in error is Solomonv. CommissionersofCartersville, 41 Ga. 157. It held that anact ofthe General Assembly signed by RufusB. Bullock, Governor, May 26, 1869, was invalid because itwas notsigned withinthe time prescribed by the Constitution. TheSolomon case, supra,was citedin DeLoachv. Newton, supra, and the court, after discussing the possible uses of the legislativejournals, said: "A possible use for them might arise on the construction of an act. In Solomon v. Commissionersof Cartersville, 41 Ga. 157, thejournals of theGeneral Assembly were consulted to ascertain when the legislature adjourned. In Gormley v. Taylor,44 Ga. 76, aquery was puton this subject." Evidently the court inDeLoach v. Newton, supra, did not consider the case of Solomon v. Commissioners ofCartersville, supra, any obstacle toreaching its decision. Neither do we, in thiscase, find anything init to prevent us from following DeLoach v. Newton, Atlantic CoastLine R. Co. v. State, andWilliams v.MacFeeley(supra), in circumstances where, as in the present case, the attempt is to impeach a legislative act in reference to matters alleged to have transpired before the signing of the bill by the Governor, and where theissue is notwhether or not the Governor did actuallysign the bill within thetime required by the Constitution. The plaintiffs in error argue that the decided cases in this Stateon thequestion of conclusive presumptionof anenrolled act do not, as to any of them, embrace a situation exactly like that presented by the facts in the instant case. If not in exact detail withthe facts here involved, the principlesin the cited cases upholding the conclusive presumption doctrine are sufficiently controllingfor us toadhere to the same rule in this case. Thus, we reach the conclusionthat where, as in this case, a copy ofan enrolled act purporting to contain thesignatures of the Speaker of theHouse,Clerk of the House, President of the Senate,Secretary ofthe Senate, and the Governor, is set out and made a part of the amended petition, which seeks to show invalidity upon the contentionthat a portionof the title was composed andinserted by some method or agency in anirregular manner during the process of its passage, neither the 486 legislative journals nor photostatic copiesof the bill are permissible toimpeachtheact, because of the conclusive presumption against any irregularity inits enactment; and, accordingly, this court cannot consider violations of the State Constitutionthat are dependent onbeing so shown. 2. The act is assailedas being in violation of article III,section VII, paragraph VIIIofthe State Constitution (Code, Ann. § 2-1908), particularly the portion thereof reading, "Nolaw shall pass which refers to more than onesubject matter,"because, asthe plaintiffs in error contend, it embraces legislation on "malt beverages"and "wines." Specificallyit is contended that the regulation,control, andtaxation of maltbeverages is a separatesubject-matter from that of wines. Seeking toillustrate, it is insisted that they have been dealt with as a separate seriesof legislation; thatin certain courtdecisions the term "malt beverages" has been held not toinclude "wines";that legislativedeclarations in the wine act of 1935, to the effect that the samewas to promote temperance and prosperity of the people of Georgia and foster the growing of grapes, fruits, andberries on Georgia farms, indicate that wines are recognizedby the legislature as being in a different subject-matter categoryfrom that of malt beverages; andthat executive and administrative treatment hasrecognized them as separate. The "subject" of an act, within the meaningof the constitutional provision that no act shall contain more than one subject, is regarded as the matter or thing forming the groundworkof the act. Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37); 50 Am.Jr.172,§ 191; Mayes v. Daniel, 186 Ga. 345, 353 (198 S.E. 535). In Whitley v. State,134 Ga. 758 (68 S. E. 716), involving an act of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or drinks, the dual subject-matter provision of the State Constitution was invoked and held not to be applicable, it being pointed outthat "allthesethings were germane to and formed a part of the general purpose of the act.They werenot so entirely distinct and different as to constitute different subject-matters within the meaning of the paragraphof the constitution." See also Carroll v.Wright, 131 Ga. 728 (63S. E. 260). Looking to the language of the act in the instant case, thegeneral purposeis illustrated by words and figures*487 that unmistakably standout as indicating that an increase in excise taxes is the thing chiefly sought. Whatever may have beenthe reasons prompting the legislature in theyear 1935 to	206 Ga. _477_ (1950) 57 S.E.2d 578 CAPITOL DISTRIBUTING COMPANY et _al_ v. REDWINE, Revenue Commissioner; et vice versa. 16887, 16901. _Supreme_ Court of _Georgia._ January 12, _1950._ Rehearing Denied February 17, 24, 1950. 483 _MacDougald,_ Troutman, _Sams_ & Schroder, _and_ Dan MacDougald Jr., for plaintiffs. _Eugene_ Cook, Attorney-General, and _M._ H. Blackshear Jr., _Assistant_ Attorney-General, _for_ defendant. CANDLER, Justice. (After stating _the_ foregoing facts.) 1. There is set out _above_ a copy of the enrolled _act_ as attached to and made _a_ _part_ of _the_ petition as _amended._ As enrolled the act shows on _its_ _face_ that _taxation_ on wines is included in _the_ title and in the body. The plaintiffs _in_ _error_ _contend_ that _there_ _were_ irregularities during _the_ _process_ _of_ the legislation such _as_ to controvert any valid reference to _wines_ in _the_ title. _A_ _portion_ of the petition as amended alleges in substance that the _words,_ "to increase _the_ excise taxes upon domestic wines, foreign _wines,_ and domestic and foreign fortified wines," _were_ neither read before nor voted on by the legislature _nor_ did they appear in the title when the bill _was_ before the legislature. _Instead,_ it is contended _that_ _those_ words were composed and inserted by some agency or method other than the joint action _of_ the _two_ _houses_ after the _bill_ was _voted_ on _and_ _passed._ Further, it _is_ _contended_ that the _words,_ "and that the _caption_ be amended accordingly," _were_ written underneath the _body_ of the amendment, _but_ that _the_ same were not _constitutionally_ sufficient to _authorize_ the first above-quoted words _which_ _were_ written _into_ the title. The petition as amended attempts to show the facts relied on by _photostatic_ copies of the bill, its amendment _during_ process _of_ passage, and Legislative Journal _entries._ Involved _in_ these contentions there are several _provisions_ of _the_ 484 State Constitution, alleged to _be_ violated, as follows: article _III,_ section 1, paragraph 1 _(Code,_ Ann. § _2-1301),_ reading: "The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate _and_ _House_ of Representatives," the contention being _that_ the _alleged_ new matter _inserted_ in _the_ manner alleged constitutes an unlawful delegation of legislative authority in _violation_ thereof; article III, section VII, paragraph VII (Code, Ann. § 2-1907), reading: "Every bill, before it _shall_ pass, shall _be_ read three times, and on three separate days, in each House, unless in cases of actual _invasion,_ or insurrection, but the _first_ _and_ second reading of each local bill, shall consist _of_ _the_ _reading_ of the title _only,_ unless said bill _is_ ordered to _be_ engrossed," it being contended _that,_ the entire act not being read, this clause was violated; article III, section VII, paragraph _VII_ (Code, _Ann._ § 2-1908), reading: _"No_ _law_ shall pass which refers _to_ more than one _subject_ matter, _or_ contains matter _different_ from what is expressed in the title thereof," the contention in this _connection_ being that the act having made reference in the body to wines, without having reference to the same in the _title,_ is in violation of _this_ provision; and article I, section I, paragraph III _(Code,_ Ann. § 2-103), reading: "No person shall be deprived of life, _liberty,_ or property, except _by_ due _process_ _of_ law," it _being_ contended that the legislature undertook to have the caption changed after the act passed and did so _in_ terms so vague, uncertain, and indefinite as not _to_ _apprise_ anyone thereof. Before a determination of the questions above presented, _it_ is obvious that consideration must _be_ given to the effect thereon of the decisions of this court on the principle commonly _known_ as the conclusive presumption of an enrolled act. In _Atlantic_ Coast _Line_ R. Co. v. State, _135_ Ga. 545 (69 S. E. 725), it _was_ held: "A duly enrolled act properly authenticated by the regular _presiding_ officers of both houses of the General _Assembly,_ approved by the Governor, and deposited with the _Secretary_ of State as _an_ existing law, _will_ be conclusively _presumed_ to have been enacted in accordance with the _constitutional_ _requirements;_ and it is not permissible to _show,_ by the _legislative_ _journals_ _or_ other records, that _it_ did _not_ receive on its _passage_ _a_ majority vote of all the members elected to each _house,_ or that there was 485 any irregularity in its _enactment."_ See also DeLoach _v._ Newton, 134 Ga. 739 _(68_ S. E. 708), and Williams v. MacFeeley, _186_ Ga. 145 (197 S. E. 225). A case cited and relied on by the _plaintiffs_ in _error_ is Solomon v. Commissioners of Cartersville, 41 Ga. 157. _It_ held that an act of _the_ _General_ Assembly signed by Rufus _B._ _Bullock,_ Governor, _May_ 26, _1869,_ was _invalid_ because _it_ was not signed _within_ the time prescribed _by_ the Constitution. _The_ Solomon case, supra, was cited in _DeLoach_ _v._ Newton, supra, and the court, _after_ discussing the possible uses of the legislative journals, said: "A _possible_ _use_ for them might arise _on_ the construction of an act. _In_ Solomon v. Commissioners of Cartersville, 41 Ga. 157, the journals of the General _Assembly_ were _consulted_ _to_ ascertain when _the_ _legislature_ _adjourned._ In Gormley v. _Taylor,_ _44_ Ga. 76, _a_ _query_ was put on _this_ subject." _Evidently_ the court in DeLoach v. Newton, _supra,_ did not _consider_ the case of _Solomon_ v. Commissioners _of_ Cartersville, supra, _any_ _obstacle_ _to_ reaching its decision. Neither do we, in this case, _find_ anything in it to _prevent_ us from following _DeLoach_ v. Newton, Atlantic Coast Line R. Co. _v._ State, and Williams v. MacFeeley (supra), in _circumstances_ where, as in the present case, _the_ attempt _is_ to impeach a legislative act in _reference_ _to_ matters alleged to have transpired before the signing _of_ the bill by the Governor, _and_ _where_ the issue is not whether or not the _Governor_ _did_ actually sign the _bill_ within the time required by _the_ Constitution. The plaintiffs in error argue that the decided cases in this State on the question of conclusive presumption of an enrolled _act_ _do_ _not,_ as to _any_ of them, embrace a situation exactly like that presented by _the_ facts in the instant _case._ If not in exact detail with _the_ _facts_ here involved, the principles in _the_ cited cases upholding the conclusive presumption doctrine are sufficiently controlling for us to adhere to _the_ same rule in this _case._ Thus, we reach the _conclusion_ that _where,_ as in _this_ case, a copy of _an_ enrolled _act_ purporting to _contain_ the signatures of the _Speaker_ of the House, _Clerk_ of the House, President of _the_ Senate, _Secretary_ of _the_ Senate, and the Governor, _is_ set out and made a part of the amended petition, which seeks _to_ show _invalidity_ upon the _contention_ that a portion of _the_ title was _composed_ and inserted by some _method_ or agency _in_ an irregular manner _during_ _the_ process of its passage, _neither_ the 486 _legislative_ journals nor photostatic copies of the bill are permissible to impeach the act, because of the conclusive presumption against any irregularity in _its_ enactment; and, accordingly, this court cannot consider violations of the State Constitution _that_ are dependent on being so _shown._ 2. _The_ act is assailed as being in _violation_ of article _III,_ section VII, paragraph _VIII_ of the State _Constitution_ _(Code,_ Ann. _§_ 2-1908), particularly the portion thereof reading, "No law shall pass _which_ refers _to_ more than one subject matter," because, as the plaintiffs _in_ error contend, it embraces legislation on "malt beverages" and "wines." _Specifically_ it _is_ contended that the regulation, control, and taxation of malt beverages is a _separate_ subject-matter _from_ _that_ _of_ wines. _Seeking_ to illustrate, _it_ is insisted that they have _been_ dealt _with_ as a separate series of legislation; that in _certain_ court _decisions_ the term "malt beverages" has been held not to include "wines"; that legislative _declarations_ in _the_ wine _act_ of 1935, to the _effect_ that the same was _to_ _promote_ temperance and prosperity of the people of Georgia and foster _the_ _growing_ of grapes, fruits, and _berries_ on Georgia farms, indicate that wines _are_ recognized by the legislature as being in a _different_ subject-matter category _from_ that of _malt_ beverages; and that executive and administrative _treatment_ has _recognized_ them _as_ separate. The _"subject"_ _of_ an act, within the meaning _of_ the constitutional provision that no act shall _contain_ more than one subject, is regarded as the matter or thing _forming_ the groundwork _of_ the act. Lloyd v. Richardson, _158_ Ga. _633_ _(124_ _S._ _E._ 37); 50 _Am._ Jr. 172, § 191; Mayes v. Daniel, 186 Ga. 345, 353 _(198_ S. E. 535). In Whitley v. _State,_ 134 _Ga._ _758_ (68 _S._ E. 716), involving an act of 1907 to prohibit the manufacture, sale, _and_ _other_ things relating to various named _forms_ of alcoholic liquors _or_ drinks, the dual _subject-matter_ provision of the State Constitution was invoked and _held_ _not_ to be applicable, it being pointed out that "all these _things_ were germane to and _formed_ a _part_ _of_ _the_ general purpose _of_ the act. They were not so entirely _distinct_ and _different_ as to constitute different subject-matters within the meaning of the paragraph of the constitution." See _also_ Carroll v. Wright, 131 Ga. _728_ (63 S. _E._ 260). Looking to the _language_ _of_ _the_ act _in_ the instant case, _the_ general purpose is illustrated _by_ words and _figures_ *487 _that_ unmistakably stand out _as_ indicating that an _increase_ in excise taxes is the _thing_ _chiefly_ sought. _Whatever_ may _have_ been the reasons prompting the _legislature_ in the _year_ _1935_ to
278 U.S. 282 (1929) BOTANY WORSTED MILLS v. UNITED STATES. No. 31. Supreme Court of United States. Submitted April 23, 1928. Argued November 20, 1928. Decided January 2, 1929. CERTIORARI TO THE COURT OF CLAIMS. 283 Mr. Nathan A. Smyth for petitioner. Solicitor General Mitchell for the United States. 284 A brief on behalf of Mr. A.G. Lacy, as amicus curiae, was filed by special leave of Court on motion of the Solicitor General. MR. JUSTICE SANFORD delivered the opinion of the Court. The Botany Worsted Mills, a New Jersey corporation engaged in the manufactured of woolen and worsted fabrics, made a return of its net income for the taxable year 1917 under the Revenue Act of 1916[1] and the War Revenue Act of 1917.[2] By § 12(a) of the Revenue Act it was provided that in ascertaining the net income of a corporation organized in the United States there should be deducted from its gross income all "the ordinary and necessary expenses paid within the year in the maintenance and operation of its business and properties." Under this provision the Mills deducted amounts aggregating $1,565,739.39 paid as compensation to the members of its board of directors, in addition to salaries of $9,000 each. It paid an income tax computed in accordance with this return. Thereafter, in 1920, the Commissioner of Internal Revenue assessed an additional income tax against it. Of this, $450,994.06 was attributable to his disallowance of $783,656.06 of the deduction claimed as compensation paid to the directors, on the ground that the total amount paid as compensation was unreasonable and the remainder of the deduction as allowed represented fair and reasonable compensation. The Mills, after paying the additional tax, filed a claim for refund of this $450,994.06. The claim was disallowed; and the Mills thereafter, in September 1924, by a petition in the Court of Claims sought to recover this sum from the United States, with 285 interest alleging that the disallowance of part of the compensation paid the directors was illegal.[3] After a hearing on the merits the court, upon its findings of fact, dismissed the petition upon the ground that the additional tax was imposed under an agreement of settlement which prevented a recovery. 63 C. Cls. 405. And this writ of certiorari was granted. The first question presented is whether the Mills is precluded from recovering the amount claimed by reason of a settlement. Sec. 3229 of the Revised Statutes,[4] provides that: "The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil or criminal case arising under the internal-revenue laws instead of commencing suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney-General, he may compromise any such case after a suit thereon has been commenced. Whenever a compromise is made in any case there shall be placed on file in the office of the Commissioner the opinion of the Solicitor of Internal Revenue, . . . with his reasons therefor, with a statement of 286 the amount of tax assessed, . . . and the amount actually paid in accordance with the terms of the compromise."[5] The Government did not claim that there had been a compromise under this statute, but contended in the Court of Claims that, irrespective thereof, an agreement of settlement had been entered into between the Mills and the Commissioner under which the Mills had accepted the partial disallowance as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of which it still enjoyed, and was therefore estopped from seeking a recovery. As to this matter the findings of fact show that after the Mills had paid the amount of the tax shown by its original return, an investigation of its books disclosed to the Commissioner the necessity of making an additional assessment, to be determined by the settlement of questions relating to the compensation (or, as it was termed, bonus) paid to the directors, depreciation charged off on its books, and reserves charged to expenses. After much correspondence and numerous conferences extending over several months between the attorney and assistant treasurer of the Mills and the chief of the special audit section of the Bureau of Internal Revenue and other of his official associates, a compromise was agreed to as to all the differences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciation were agreed upon, and the claim as to reserve was allowed. Thereupon the Mills prepared and filed an amended return based upon the figures agreed upon in the conferences, with documentary evidence which it had 287 agreed to furnish; and the additional assessment was made in accordance with this return.[6] The court, in sustaining the Government's contention, said: "With the payment of the tax under the circumstances surrounding this case the agreement, which is mentioned in the record as a `gentleman's agreement,' became in legal effect an executed contract of settlement"; and that, as the Mills was seeking to recover to account of the particular item which it regarded as unfavorable to its interests, and at the same time hold to the advantage derived from the settlement of other items in dispute involved in the same general settlement, it should not be allowed a recovery. The Mills contends that the Commissioner had not been given, at the time in question, any authority, either in express terms or by implication, to compromise tax cases except as provided in § 3229; that this statute in granting such authority under specific limitations as to the method to be pursued, negatived his authority to effect a valid and binding agreement in any other way; that as the Government could not have been estopped by the unauthorized transactions of its officials, the Mills likewise could not be estopped thereby; and further, that the findings are insufficient to establish an estoppel. The Government does not here challenge any of these contentions. In the brief for the United States filed in this Court the Solicitor General states that the question whether such an informal adjustment of taxes as was made in this case is binding on the taxpayer, is submitted for decision in deference to the opinion of the Court of Claims and the importance of the question but no argument is made in support of the Government's previous contention that the Mills was estopped from questioning 288 the settlement. And, on the contrary, it is stated that "Before and since the date of the alleged settlement in this case Congress has evidently proceeded on the theory that no adjustment of a tax controversy between representatives of the Bureau of Internal Revenue and a taxpayer is binding unless made with the formalities and with the approval of the officials prescribed by statute. The authority of officers of the United States to compromise claims on behalf of or against the United States in strictly limited. . . The statutes which authorize conclusive agreements and settlements to be made in particular ways and with the approval of designated officers raise the inference that adjustments or settlements made in other ways are not binding." And further, that "No ground for the United States to claim estoppel is disclosed in the findings." Independently of these concessions, we are of the opinion that the informal settlement made in this case did not constitute a binding agreement. Sec. 3229 authorizes the Commissioner of Internal Revenue to compromise tax claims before suit, with the advice and consent of the Secretary of the Treasury, and requires that an opinion of the Solicitor of Internal Revenue setting forth the compromise be filed in the Commissioner's office. Here the attempted settlement was made by subordinate officials in the Bureau of Internal Revenue. And although it may have been ratified by the Commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the Secretary, or that the opinion of the Solicitor was filed in the Commissioner's office. We think that Congress intended by the statute to prescribed the exclusive method by which tax cases could be compromised, requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the Commissioner's office; *289 and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode. Raleigh, etc. R.R. Co. v. Reid, 13 Wall. 269, 270; Scott v. Ford, 52 Ore. 288, 296. It is plain that no compromise is authorized by this statute which is not assented to by the Secretary of the Treasury. Leach v. Nichols (C.C.A.) 23 F. (2d) 275, 277. For this reason, if for no other the informal agreement made in this case did not constitute a settlement which in itself was binding upon the Government or the Mills. And, without determining whether such an agreement, though not binding in itself, may when executed become, under some circumstances, binding on the parties by estoppel, it suffices to say that here the findings disclose no adequate ground for any claim of estoppel by the United States. We therefore conclude that the Mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled. This brings us to the question whether on the findings of fact the Mills is entitled to recover the portion of the additional tax attributable to the disallowance of $783,656.06 of the amount paid to the directors which it had claimed as a deduction.[7] Under § 12(a) of the Revenue Act of 1916 the Mills was not entitled to this deduction unless the amount paid constituted a part of its "ordinary and necessary expenses" in the maintenance and operation of	278 u. s. 282 ( 1929 ) botany worsted mills v. united states. no. 31. supreme court of united states. won april 23, 1928. argued november 20, 1928. decided january 2, 1929. certiorari to prevent filing of claims. * 283 mr. nathan a. smyth for petitioner. solicitor general mitchell for federal united states. * 284 a brief on behalf of mr. a. g. lacy, as amicus curiae, was filed by special leave of court on motion of the solicitor general. mr. justice sanford delivered the opinion of the court. the botany worsted mills, a new jersey enterprise engaged in the manufactured of woolen and worsted fabrics, made a claim of its net income for the taxable year 1917 under the revenue act of 1916 [ 1 ] and the war revenue act of 1917. [ 2 ] by § 12 ( a ) of the revenue act it was provided that in ascertaining the net income of a corporation liability for the united states there should be deducted from its gross income all " the ordinary and necessary expenses paid within the year in the maintenance and operation of its business and properties. " under this provision the mills deducted amounts aggregating $ 1, 565, 739. 39 paid as compensation to the members of its board of directors, in addition to salaries of $ 9, 000 each. it paid an income tax computed in accordance with this return. thereafter, in 1920, the commissioner of internal revenue assessed an additional income tax against it. reflecting this, $ 450, 994. 06 was attributable to his disallowance of $ 783, 656. 06 of the deduction claimed as compensation applicable to the directors, on the ground that the total amount paid as compensation was unreasonable and the remainder of the deduction as allowed represented fair and reasonable compensation. the mills, after paying the additional tax, filed a claim for refund of this $ 450, 994. 06. the claim was disallowed ; and the mills thereafter, in september 1924, by a petition in the court of claims sought to recover this sum from the united states, with * 285 interest alleging that the disallowance of part of the compensation paid the directors was illegal. [ 3 ] after a hearing on the merits the court, upon its findings of fact, dismissed the petition upon the ground that the additional tax was imposed under an agreement of settlement which prevented a recovery. 63 c. cls. 405. and this writ of certiorari was granted. the first question presented is whether the mills is precluded from recovering the amount claimed by reason of a settlement. sec. 3229 of the revised statutes, [ 4 ] provides that : " the commissioner of internal revenue, with the advice and consent of the secretary of the treasury, may compromise any civil or criminal case arising under the internal - revenue laws instead of commencing suit thereon ; and, with the advice and consent of the said secretary and the recommendation of the attorney - general, he may compromise any such case after a suit thereon has been commenced. whenever a compromise is made in any case there shall be placed on file in the office of the commissioner the opinion of the solicitor of internal revenue,... with his reasons therefor, with a statement of * 286 the amount of tax assessed,... and the amount actually paid in accordance with the terms of the compromise. " [ 5 ] the government did not claim that there had been a compromise under this statute, but contended in the court of claims that, irrespective thereof, an agreement of settlement had been entered into between the mills and the commissioner under which the mills had accepted the partial disallowance as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of which it still enjoyed, and was therefore estopped from seeking a recovery. as to this matter the findings of fact show that after the mills had paid the amount of the tax shown by its original return, an investigation of its books disclosed to the commissioner the necessity of making an additional assessment, to be determined by the settlement of questions relating to the compensation ( or, as it was termed, bonus ) paid to the directors, depreciation charged off on its books, and reserves charged to expenses. after much correspondence and numerous conferences extending over several months between the attorney and assistant treasurer of the mills and the chief of the special audit section of the bureau of internal revenue and other of his official associates, a compromise was agreed to as to all the differences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciation were agreed upon, and the claim as to reserve was allowed. thereupon the mills prepared and filed an amended return based upon the figures agreed upon in the conferences, with documentary evidence which it had * 287 agreed to furnish ; and the additional assessment was made in accordance with this return. [ 6 ] the court, in sustaining the government ' s contention, said : " with the payment of the tax under the circumstances surrounding this case the agreement, which is mentioned in the record as a ` gentleman ' s agreement, ' became in legal effect an executed contract of settlement " ; and that, as the mills was seeking to recover to account of the particular item which it regarded as unfavorable to its interests, and at the same time hold to the advantage derived from the settlement of other items in dispute involved in the same general settlement, it should not be allowed a recovery. the mills contends that the commissioner had not been given, at the time in question, any authority, either in express terms or by implication, to compromise tax cases except as provided in § 3229 ; that this statute in granting such authority under specific limitations as to the method to be pursued, negatived his authority to effect a valid and binding agreement in any other way ; that as the government could not have been estopped by the unauthorized transactions of its officials, the mills likewise could not be estopped thereby ; and further, that the findings are insufficient to establish an estoppel. the government does not here challenge any of these contentions. in the brief for the united states filed in this court the solicitor general states that the question whether such an informal adjustment of taxes as was made in this case is binding on the taxpayer, is submitted for decision in deference to the opinion of the court of claims and the importance of the question but no argument is made in support of the government ' s previous contention that the mills was estopped from questioning * 288 the settlement. and, on the contrary, it is stated that " before and since the date of the alleged settlement in this case congress has evidently proceeded on the theory that no adjustment of a tax controversy between representatives of the bureau of internal revenue and a taxpayer is binding unless made with the formalities and with the approval of the officials prescribed by statute. the authority of officers of the united states to compromise claims on behalf of or against the united states in strictly limited... the statutes which authorize conclusive agreements and settlements to be made in particular ways and with the approval of designated officers raise the inference that adjustments or settlements made in other ways are not binding. " and further, that " no ground for the united states to claim estoppel is disclosed in the findings. " independently of these concessions, we are of the opinion that the informal settlement made in this case did not constitute a binding agreement. sec. 3229 authorizes the commissioner of internal revenue to compromise tax claims before suit, with the advice and consent of the secretary of the treasury, and requires that an opinion of the solicitor of internal revenue setting forth the compromise be filed in the commissioner ' s office. here the attempted settlement was made by subordinate officials in the bureau of internal revenue. and although it may have been ratified by the commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the secretary, or that the opinion of the solicitor was filed in the commissioner ' s office. we think that congress intended by the statute to prescribed the exclusive method by which tax cases could be compromised, requiring therefor the concurrence of the commissioner and the secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the commissioner ' s office ; * 289 and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the bureau. when a statute limits a thing to be done in a particular mode, it includes the negative of any other mode. raleigh, etc. r. r. co. v. reid, 13 wall. 269, 270 ; scott v. ford, 52 ore. 288, 296. it is plain that no compromise is authorized by this statute which is not assented to by the secretary of the treasury. leach v. nichols ( c. c. a. ) 23 f. ( 2d ) 275, 277. for this reason, if for no other the informal agreement made in this case did not constitute a settlement which in itself was binding upon the government or the mills. and, without determining whether such an agreement, though not binding in itself, may when executed become, under some circumstances, binding on the parties by estoppel, it suffices to say that here the findings disclose no adequate ground for any claim of estoppel by the united states. we therefore conclude that the mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled. this brings us to the question whether on the findings of fact the mills is entitled to recover the portion of the additional tax attributable to the disallowance of $ 783, 656. 06 of the amount paid to the directors which it had claimed as a deduction. [ 7 ] under § 12 ( a ) of the revenue act of 1916 the mills was not entitled to this deduction unless the amount paid constituted a part of its " ordinary and necessary expenses " in the maintenance and operation of	278 U. S. 282 (1929) BOTANY WORSTED MILLS v. UNITED STATES. No. 31. Supreme Court of United States. Submitted April 23, 1928. Argued November 20, 1928. Decided January 2, 1929. CERTIORARI TO THE COURT OF CLAIMS. * 283 Mr. Nathan A. Smyth for petitioner. Solicitor General Mitchell for the United States. * 284 A brief on behalf of Mr. A. G. Lacy, as amicus curiae, was filed by special leave of Court on motion of the Solicitor General. MR. JUSTICE SANFORD delivered the opinion of the Court. The Botany Worsted Mills, a New Jersey corporation engaged in the manufactured of woolen and worsted fabrics, made a return of its net income for the taxable year 1917 under the Revenue Act of 1916 [1] and the War Revenue Act of 1917. [2] By § 12 (a) of the Revenue Act it was provided that in ascertaining the net income of a corporation organized in the United States there should be deducted from its gross JMcome all " the ordinary and necessary expenses paid within the year in the maintenance and operation of its business and properties. " Under this provision the Mills deducted amounts aggregating $ 1, 565, 739. 39 paid as compensation to the members of its board of directors, in addition to salaries of $ 9, 000 each. It paid an income tax computed in accordance with this return. Thereafter, in 1920, the Commissioner of Internal Revenue aZsesseX an additional income tax against it. Of this, $ 450, 994. 06 was attributable to his disallowance of $ 783, 656. 06 of the deduction claimed as compensation paid to the directors, on the ground that the total amount paid as compensation was unreasonable and the remainder of the deduction as allowed represented fair and reasonable compensation. The Mills, after paying the additional tax, filed a claim for refund of this $ 450, 994. 06. The claim was disallowed; and the Mills thereafter, in September 1924, by a petition in the Court of Claims sought to recover this sum from the United States, with * 285 interest alleging that the disallowance of part of the compensation paid the directors was illegal. [3] After a hearing on the merits the court, upon its findings of fact, dismissed the petition upon the ground that the additional tax was imposed under an agreement of settlement which prevented a recovery. 63 C. Cls. 405. And this writ of certiorari was granted. The first question presented is whether the Mills is precluded from recovering the amount claimed by reason of a settlement. Sec. 3229 of the Revised Statutes, [4] provides that: " The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil or criminal case arising under the internal - revenue laws instead of cokmencinv suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney - General, he may compromise any such case after a suit thereon has been commenced. Whenever a compromise is made in any case there shall be placed on file in the office of the Commissioner the opinion of the Solicitor of Internal Revenue, .. . with his reasons therefor, with a statement of * 286 the amount of tax assessed, .. . and the amount actually paid in accordance with the terms of the compromise. " [5] The Government did not claim that thDrw had been a compromise under this statute, but contended in the Court of Claims that, irrespective thereof, an agreement of settlement had been entered into between the Mills and the Commissioner under which the Mills had accepted the partial disallowance as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of which it still enjoyed, and was therefore estopped from seeking a recovery. As to this matter the findings of fact show that after the Mills had paid the amount of the tax shown by its original return, an investigation of its books disclosed to the Commissioner the necessity of making an additional assessment, to be determined by the settlement of questions relating to the compensation (or, as it was termed, bonus) paid to the directors, depreciation charged off on its books, and reserves charged to expenses. After much correspondence and numerous conferences extending over several months between the attorney and assistant treasurer of the Mills and the chief of the special audit section of the Bureau of Internal Revenue and other of his official associates, a compromise was agreed to as to all the differences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciation were agreed upon, and the claim as to reserve was allowed. ThereJpoH the Mills prepared and filed an amended return based upon the figures agreed upon in the conferences, with documentary evidence which it had * 287 agreed to furnish; and the additional assessment was made in accordance with this return. [6] The court, in sustaining the Government ' s contention, said: " With the payment of the tax under the circumstances surrounding this case the agreement, !hiDh is mentioned in the record as a ` gentleman ' s agreement, ' became in legal effect an executed contract of settlement "; and that, as the Mills was seeking to recover to account of the particular item which it regarded as unfavorable to its interests, and at the same time hold to the advantage derived from the settlement of other items in dispute involved in the same general settlement, it should not be allowed a recovery. The Mills contends that the Commissioner had not been given, at the time in question, any authority, either in express terms or by implication, to compromise tax cases except as provided in § 3229; that this statute in granting such authority under specific limitations as to the method to be pursued, negatived his authority to effect a valid and binding agreement in any other way; that as the Government could not have been 2stoppee by the unauthorized transactions of its officials, the Mills likewise could not be estopped thereby; and further, that the findings are insufficient to establish an estoppel. The Government does not here challenge any of these contentions. In the brief for the United States filed in this Court the Solicitor General states that the question whether such an informal adjustment of taxes as was made in this dass is binding on the taxpayer, is submitted for decision in deference to the opinion of the Court of Claims and the importance of the question but no argument is made in support of the Government ' s previous contention that the Mills was estopped from questioning * 288 the settlement. And, on the contrary, it is stated that " Before and since the date of the alleged settlement in this case Congress has evidently proceeded on the theory that no adjustment of a tax controversy between representatives of the Bureau of Internal Revenue and a taxpayer is binding unless made with the formalities and with the approval of the officials prescribed by statute. The authority of officers of the United States to compromise claims on behalf of or against the United States in strictly limited. .. The statutes which authorize conclusive agreements and settlements to be made in particular ways and with the approval of designated officers raise the inference that adjustments or settlements made in other ways are not binding. " And further, that " No ground for the United States to claim estoppel is disclosed in the findings. " Independently of these concessions, we are of the opinion that the informal settlement made in this case did not constitute a binding agreement. Sec. 3229 authorizes the Commissioner of Internal Revenue to compromise tax claims before suit, with the advice and consent of the Secretary of the Treasury, and requires that an opinion of the Solicitor of Internal Revenue setting forth the compromise be filed in the Commissioner ' s office. H$Te the attempted settlement was made by subordinate oRficialQ in the Bureau of Internal Revenue. And although it may have been ratified by the Commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the Secretary, or that the opinion of the Solicitor was filed in the Commissioner ' s office. We think that Congress intended by the statute to prescribed the exclusive method by which tax cases could be compromised, requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the Commissioner ' s office; * 289 and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode. Raleigh, etc. R. R. Co. v. Reid, 13 Wall. 269, 270; Scott v. Ford, 52 Ore. 288, 296. It is plain that no compromise is authorized by this statute which is not assented to by the Secretary of the Treasury. Leach v. Nichols (C. C. A.) 23 F. (2d) 275, 277. For this reason, if for no other the informal agreement made in this case did not constitute a settlement which in itself was binding upon the Government or the Mills. And, without determining whether such an agreement, though not binding in itself, may when executed become, under some circumstances, binding on the parties by estoppel, it suffices to say that here the findings disclose no adequate ground for any claim of estoppel by the United States. We therefore conclude that the Mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled. This brings us to the question whether on the findings of fact the Mills is entitled to recover the portion of the additional tax attributable to the disallowance of $ 783, 656. 06 of the amount paid to the directors which it had claimed as a deduction. [7] Under § 12 (a) of the Revenue Act of 1916 the Mills was not entitled to this deduction unless the amount paid constituted a part of its " ordinary and necessary expenses " in the maintenance and operation of	278 U.S. 282 (1929) BOTANY WORSTED MILLS v. UNITED No. 31. Supreme Court of United States. Submitted April 23, Argued November 20, 1928. Decided January 2, 1929. CERTIORARI TO THE COURT OF CLAIMS. 283 Mr. Nathan A. Smyth for petitioner. General Mitchell for the United States. A brief behalf of A.G. Lacy, as amicus curiae, filed by special leave of Court on motion of the Solicitor General. JUSTICE SANFORD delivered the of the Court. The Botany Worsted a New Jersey engaged in the manufactured of woolen and worsted fabrics, a return of its net income for the taxable 1917 under the Revenue Act of 1916[1] and the War Revenue Act of 1917.[2] By § 12(a) of the Revenue Act it was that in ascertaining the net income of a corporation organized in United States there should be deducted from its gross income all "the ordinary and necessary paid within the year in the maintenance and operation of and properties." Under this provision the Mills deducted amounts aggregating $1,565,739.39 paid as compensation to the members of its board of directors, in addition to salaries of $9,000 each. It paid an income tax computed in accordance with this return. Thereafter, in 1920, the Commissioner of Internal Revenue an additional income tax against it. this, $450,994.06 attributable to his disallowance of of the deduction claimed as compensation paid to the directors, on the ground the total amount paid as compensation was unreasonable and the the as fair and reasonable compensation. The Mills, after paying the additional tax, filed a for refund of this $450,994.06. The claim was disallowed; and the Mills in September 1924, by a petition in the Court of Claims sought to recover this sum from the United States, with 285 interest alleging that the disallowance part of the compensation paid the directors was illegal.[3] After a hearing on the the court, upon its findings of fact, dismissed the petition the that the additional tax was imposed under an agreement of settlement which prevented a recovery. 63 C. Cls. 405. And this writ of certiorari was granted. The first question presented is whether the Mills is from recovering the amount claimed by reason of a settlement. Sec. 3229 of Revised Statutes,[4] provides "The of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil criminal case arising under the internal-revenue laws instead of commencing suit thereon; and, with the advice and consent of said Secretary and the recommendation of the Attorney-General, he may compromise such case a suit thereon been commenced. Whenever a is made in any shall be placed on in the office of the Commissioner the of the Solicitor of Internal Revenue, . . . his reasons therefor, with statement of the amount of tax assessed, . . and the actually paid in accordance with the terms of compromise."[5] The Government did not claim that there had been a compromise under this statute, but contended in the Court of Claims that, irrespective thereof, an agreement of had been entered into between the Mills and the under which the had accepted partial as paid the directors, had also received concessions as to items benefit of which it still enjoyed, and was estopped from seeking a recovery. As to this matter the findings of fact that after the had paid the amount of the tax shown by its original an investigation of books disclosed to the Commissioner the necessity of making an additional assessment, to be determined by the settlement of questions relating compensation (or, as it was bonus) paid to the directors, depreciation charged off on its books, and reserves charged to expenses. After much correspondence and numerous conferences extending over several months between the attorney and assistant treasurer of the Mills and chief of the special audit section of the Bureau Internal Revenue and other his official associates, a compromise was agreed to as to all the differences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciation were agreed and claim as to reserve was allowed. Thereupon the Mills prepared and filed an amended return based upon the figures agreed upon the conferences, with documentary evidence which it had 287 agreed to and the additional made accordance with this return.[6] court, in sustaining the Government's contention, said: "With the payment of tax under circumstances surrounding this case agreement, which is mentioned in the record as a `gentleman's agreement,' became in legal effect an contract of settlement"; and that, as the Mills was seeking to recover to account of the item which it regarded as unfavorable to its and at the same time hold to the advantage derived from the settlement of other items in dispute involved in the same general settlement, it should not be recovery. The Mills contends that the Commissioner had been given, at the time in question, any authority, either express terms or by to compromise cases except as provided § 3229; statute in granting such authority under specific limitations as to the method to be pursued, his authority to effect a valid and binding agreement in any way; that as the Government not have been estopped by the transactions of its officials, the Mills likewise not be estopped thereby; and further, that the findings are insufficient to establish an estoppel. The Government does not here challenge any of these contentions. the brief for the United States filed in this Court the Solicitor states that the question whether such an informal adjustment of taxes as was in this case binding on taxpayer, is submitted for decision deference to the opinion of Court of Claims and the importance of the question but no argument is made in support of the Government's previous contention that the Mills was estopped from questioning 288 the settlement. And, on the contrary, it is stated "Before and since the date of the alleged settlement in this case Congress has proceeded on the that no adjustment of a tax controversy between representatives of the Bureau Internal Revenue and a taxpayer is binding unless made with the formalities and with the approval of the officials prescribed by statute. The officers of the United States to compromise on behalf of or against the States in strictly limited. . . The statutes which authorize conclusive agreements and settlements to be made in particular ways and with the approval of designated officers raise the inference that adjustments or settlements made in other ways are not binding." And further, that "No ground for the United States to claim estoppel disclosed in the findings." Independently of these concessions, we are of the opinion that the informal settlement in this case did not constitute a binding agreement. Sec. 3229 authorizes Commissioner of Internal Revenue to compromise tax claims before suit, with the advice and consent of the Secretary of the Treasury, and requires that an opinion of the Solicitor of Internal Revenue setting forth the compromise be filed the Commissioner's office. Here attempted settlement made by subordinate officials in the Bureau of Revenue. And although it may have ratified the Commissioner in making the additional assessment based thereon, it does not appear that assented by the Secretary, or that the opinion of the was filed in Commissioner's office. We think that Congress the statute to prescribed exclusive method by which tax cases could be requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the with which, as a matter of public concern, it should be in the files of the Commissioner's office; *289 and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits thing to be done in a particular mode, it includes the negative of any other mode. Raleigh, etc. R.R. Co. v. 13 Wall. 269, 270; Scott v. Ford, 52 Ore. 288, 296. It is plain that compromise is authorized by this statute which is not assented to by the Secretary of the Treasury. Leach v. Nichols (C.C.A.) 23 F. (2d) 275, 277. For this reason, if no other the informal agreement made in this case did not constitute a settlement in itself was binding upon Government or the And, without determining whether such an agreement, though not binding itself, may executed become, under some circumstances, binding on the parties estoppel, it suffices say that here the disclose no adequate for any of by the United States. We therefore conclude that the Mills was not precluded by the recovering any portion of the tax which it may otherwise have been entitled. This brings us to the question whether on findings of fact the Mills is to recover the portion the additional tax attributable the disallowance of $783,656.06 of the amount paid to the directors which it claimed as a deduction.[7] Under § 12(a) of the Revenue Act of 1916 Mills was not entitled to this unless the amount paid constituted a of its "ordinary and necessary expenses" in the maintenance and of	278 U.s. 282 (1929) BOtANy woRstEd mIlLS v. uNiTEd states. No. 31. sUPREMe CoUrt of unIteD sTateS. sUBmITTED ApRIl 23, 1928. arGUeD nOVemBEr 20, 1928. DEcIDED jaNUArY 2, 1929. cERTIoraRI tO The cOurt OF ClAimS. 283 MR. NAtHAn A. SMYtH fOr Petitioner. sOLiCITOr GEneRAL mItchElL For THe unitEd sTatEs. 284 a BRIeF ON BEhaLF OF mr. a.G. LaCy, AS amicuS cUrIaE, WaS FIled bY SpeCIaL LEavE OF Court oN motion OF ThE sOlIcitOR GenErAl. mR. JUstiCE sAnFORd dELivErED thE OpInION of the COurT. The bOtaNy wORsted MILLS, a NEW jeRsEY coRpoRATIon engageD in the manUFactureD Of wOolen AnD worsTEd fAbRiCs, made a REturN oF ITS Net INcOme for the tAxaBLE yeAR 1917 UNdeR THE reVeNuE acT OF 1916[1] AND tHE wAR reVENue ACt oF 1917.[2] bY § 12(a) oF THE REvEnUE Act it WaS PrOVidEd THat IN AscERtAInInG tHe nET iNcome of a CoRpORatiON ORganizED in THe UNItED States ThEre SHoUld be DeDUCted FRom Its grOSs iNcOme all "tHe ORDiNARy AND NEcesSaRY exPeNseS PAID witHiN THE yEar iN THE MaInTENanCe ANd operAtIoN oF Its BusiNEsS anD PrOpeRtiEs." uNder thIs pRoVISIoN the MILLS dEDuctED aMoUNtS aGGreGATiNg $1,565,739.39 PAid as cOMpEnSAtIOn To tHE mEmBers Of ItS BOard OF DIreCtOrs, IN ADDITion TO SALARies Of $9,000 eACH. IT Paid AN IncoME taX COmpuTed IN aCcOrdANce wITH This ReTUrn. theReAFTER, In 1920, The cOmMIsSiOneR OF IntERnAl REvenue aSsesSED AN aDDItIOnaL iNcOMe TAx AgainsT It. oF THiS, $450,994.06 waS atTRiBUtABlE to hIS DisallOwaNCE Of $783,656.06 of tHE dEDUcTiON CLaIMeD aS cOMpEnSAtioN paid To tHe dIrECtORs, On The grOunD thAt ThE totAl amOUnT Paid As COMPENSaTIoN WaS unReasonABLE anD the RemaInDER oF THE DeDUctioN as aLLOWED RePReSENtEd fair AND REAsoNAble COMpEnsatiOn. THE miLlS, aFtEr pAyInG THe aDDITIONAL Tax, FiLed A clAIm for REfuNd Of tHIs $450,994.06. ThE cLaim WAS disalloweD; AnD thE MiLls tHerEafTER, iN SePteMber 1924, by a PeTItIoN in thE CoUrT of cLaIms sought tO ReCover This SuM frOM tHE UNIted sTATeS, WIth 285 iNteresT aLleginG thaT tHe DiSalloWANCe Of part OF tHe COmPeNsatIon PaId tHe diReCtOrS WaS illeGaL.[3] aFTEr A HearInG oN tHe mEriTs THe CouRt, upoN ITs FINDIngS OF faCt, diSmIssED tHe PEtItiOn UPon thE GrOuNd THaT ThE aDditIoNAL tAx WaS iMPoseD UndeR AN AGREeMENt oF sETtLEMENT wHiCH prEvENTed a reCOvery. 63 c. cls. 405. anD thiS wrIt OF CertiOrArI Was GrANTeD. The FiRST QUEsTion prESENTed IS WHEthEr THE milLs iS preCLUDeD fRom ReCOvERIng tHE aMounT CLAimeD bY reaSoN oF a SettLEmENT. SeC. 3229 OF THE rEvisED sTaTuTEs,[4] ProVidEs that: "THe CoMmIsSIoNER of iNtErnal rEVeNUe, WiTH thE ADvIcE aND COnsenT OF thE SECrETarY oF THe tREaSuRY, maY cOMpROmISe aNY CiVil OR criminaL Case aRisinG UnDeR THe InTERNaL-REVeNue LAWS INStEAD of CoMmenCIng SUiT TherEOn; and, wITh ThE aDVIce and cOnsent of ThE SaID SEcREtaRy aND tHE RECOmMeNDaTIon of The AtTorneY-GEnERal, he mAy comprOMise anY sUch caSE AFtEr a SuIt THEREoN has bEen cOmmEnCEd. whenevEr a COMpROMIsE IS MADe In AnY CaSe thERe sHalL Be PLacEd On fiLe iN the offIcE oF ThE COMMISsIONER tHE OPInion oF THe solICitoR OF IntErnAL revEnuE, . . . wiTH HIs Reasons theReFoR, With A StAteMEnt Of 286 the amOUnt of TAx ASSEsSED, . . . ANd tHE AmOuNT actually PAId in accORdAnce WITH thE terms Of THe CoMpRoMise."[5] the gOvErnMeNt DID NOT CLAim tHat thERE hAd BeEn a cOMpRoMise unDeR thIs StaTUTE, but cONTeNDed In ThE CouRT oF Claims THAT, iRrEspECtIVE THEReoF, an agreeMENT of setTleMent Had been enTerEd inTo BetWEEn thE mILls and the ComMIsSiONER Under whicH The MiLlS Had AcCeptEd tHE paRtial DIsaLLoWAncE as To thE comPEnSatiOn paiD thE dIRectOrs, anD hAd AlSo rECEIVeD coNceSSionS As TO otHeR DIsPutED iTEms THE BenEFit of WhiCh iT sTilL ENJoyed, aND wAs tHeREFoRe eStoPpeD FroM seEkInG A ReCOvEry. as tO This mATteR the finDinGS OF fAcT sHOw THaT aFTER The mILlS haD paId ThE aMount Of ThE taX SHoWN by ITs OrIGInaL reTuRN, An inVEsTiGatiOn of ItS bOOks dIsClOSEd to THE coMMIsSIONER thE necEssItY Of MAKiNg AN AdDItioNaL ASSessMENt, to bE detErmINED bY tHe sETTLeMenT oF QuESTioNs RElAtinG TO The COmpENsAtIoN (OR, aS it WAs teRmeD, BOnUS) PAid tO THE DiRECtoRS, dePREciAtIon CHaRgEd ofF oN Its BoOKS, AND RESeRveS cHarGED TO ExpEnsEs. afTER Much CorReSPONDenCE AnD nUMeroUs CoNFEreNCEs ExTENDiNg oVEr seveRaL mONThs BEtwEen tHe aTtorNeY ANd asSistANt treAsuREr Of thE mILLs and the CHIEF oF the sPEcIal AudiT SEction Of the buReAU Of INTErNal REVenuE and oTher of HIs oFFIciAL aSsoCIATeS, a coMPROmIsE WaS AGReeD To aS TO All thE diffEReNceS, BY WhICh tHE aMounts tO be aLLOwED as rEASoNablE cOmPenSatIoN To THE dIRECToRs AND As DEPREciation WERE aGrEEd Upon, ANd The cLAiM AS TO ReSErve WaS alLOWED. thErEUpoN tHE mills PrePArED anD filEd An ameNded RETuRN BAsED upOn tHE fIgUReS AGreED UPON In The confeRENCeS, WItH DOCuMeNtARY EViDEnCe WHICH it hAD 287 AGReeD tO fuRNiSH; aNd THE aDditIONaL AsSesSmenT was MAdE iN ACcORdaNcE wiTh thIS REtuRN.[6] tHE Court, In SuStainiNg the goVeRNMent'S CONteNTIon, SAID: "WiTh tHe PayMenT of tHe TAx UNdeR THe CIRCUMSTAncEs SURRoUnDinG tHIs cAse ThE AgReEMeNt, WhIch IS mentioned in thE reCoRd AS a `GEntLemAn'S aGReEment,' bECAmE in lEGaL eFfECT aN eXecUtEd coNTRacT of sETtlEMeNt"; aND ThAT, aS THe mILLS WAs SeekInG TO rECOver to aCCount OF the paRTICULAR IteM WHIcH It rEgARDeD as uNFavOraBLE TO ITs InteRests, And AT THE SamE tiMe HoLd tO The ADvANtaGe DERIved fROm THE settLeMeNT oF OTHEr itemS iN DispuTE INvOlVED iN THe SamE GENerAl SeTtlement, iT ShOuLD not be alLOWed A ReCoVERY. the MIllS cONTeNdS ThaT tHE cOMmISsIOnEr HAd nOt beEn GIveN, At tHE tiMe iN QuEStiOn, aNY AUTHORIty, EItHeR in EXPRESS teRms or by IMplicaTIon, TO CoMPROMISe Tax CaSEs EXcEpt as pRoVidEd iN § 3229; thAt thIs stATUte In gRAntIng sUCh AuThOrity unDeR sPeCifIC LiMItATIonS As tO THe methOd tO Be pURSued, NEGAtIved HIS aUthORItY to efFeCt a VAlid aND biNdInG AgReemENt in aNy oTHER Way; thaT AS tHe GovernmEnT cOuLD NOt HAVE BeEn eStOppeD By ThE UnaUtHORIzEd tRAnSACTiONS oF ITs oFfICiALS, thE mIlls LiKEwISE CoULd Not Be estopPed TherEbY; aND FuRThEr, ThAT thE fINdINGs ArE InsuFfiCIent TO EStABLIsh An ESTOPpel. The GovERnMeNT Does not here CHALlENGE anY oF theSE ConteNTIoNs. IN ThE BRIEf for THe UnitED STAtes fILeD IN This coUrt The SOLICiTor GEnerAL StaTES thAt the QUEstIOn WheThEr Such aN inFOrmAL AdjusTMEnT of Taxes AS wAs mAdE iN THiS case Is BinDiNG oN the taxpAYer, Is SuBmitTEd for dECIsIoN In dEfErENCE to the opiNion oF thE COurT oF CLAims anD THE ImPORTance oF ThE qUESTIoN bUT no ARgUmeNt Is mADe In Support Of The governmEnt's PrEvioUs coNtentION tHat thE MiLlS WaS Estopped fROM QUesTiONing 288 The SETTLemEnt. And, on tHe cONtRary, iT is STatED tHaT "befOre ANd sINCe thE datE of tHE alLeGEd SeTTLemeNt in THIS caSE cOnGrESS hAs evIdenTLY PrOCeeDEd ON The thEory tHAT nO aDJUStMEnT oF a TAX CoNTRoVersY BETwEen rEPReSeNTaTiveS Of tHe BuReAu OF iNTErnal RevenuE aND a TaxpaYEr is BInDIng UNlEsS MADE wiTh tHe FormALiTIeS and WIth tHe appROvaL Of tHE oFFiCIALs prEScRiBed by statUte. THe AuTHOrITy Of oFFIcers oF tHE uNITED sTATeS to COMProMisE claImS On BeHAlF OF oR AGAinst ThE United STateS in STricTLY limITEd. . . ThE STatuTes WHiCH AUtHORIzE CONClUsIve aGreemENTS AnD sEtTlEmenTS to BE made In parTicULAR wAyS AnD wIth tHE ApprOval Of dEsIgNAteD OFFiCERs rAISe thE InferENce THat AdJuSTMeNts or SettleMEnTS mAde in oTHeR waYs aRE nOt BindiNG." anD FurTHer, That "No GrOuNd For tHe UNiTEd staTeS TO CLAIm estoPpeL is dIScloseD iN tHe fiNDinGs." InDepENDEnTLY Of tHEsE cOnCeSsIOnS, wE ArE OF tHE oPiNION thaT tHe inFORmaL seTtLEMEnT mADE in ThiS CaSe DID NOt ConsTITUTe a bINdInG agrEeMenT. Sec. 3229 AUthorizeS tHe COmMIssioNeR OF INtErNaL rEvenUE To comPrOmISe taX claImS BEforE sUit, WIth tHE ADvICe and CONsENT oF THe sEcReTARy OF tHe tREAsuRY, aNd rEquires tHAT An oPInion oF the sOLICITor of iNternal reVenue sEttinG FOrtH tHE comPrOmisE BE FIlEd In tHe coMMisSiONEr's oFFiCE. HERe the ATtEMPTED sEttLeMEnt WAs MaDE By suBoRDinaTE ofFICiaLs In ThE buREAu OF InTErNAl rEvenUE. And ALThOUGh It mAy hAVE BEen RatIFIed By tHe ComMiSSIONEr iN MakIng thE ADdItiOnal AssESSment BASEd thEREoN, iT dOES nOt APPEAR tHat IT wAS ASseNTED tO By tHe SEcrETArY, OR tHat thE oPiNION Of ThE SoliCiTOR WAs FiLeD In tHE CommIssIoner's OfFice. WE tHINk THaT CoNGreSs inteNDed BY tHe StAtUtE TO preSCriBed tHe excLuSIVE mEtHOD By Which taX CAseS cOULd bE CoMpROMISEd, rEQUIring ThereFOR THE ConCurReNcE of THe ComMIsSIOner and thE SECreTaRY, And PreSCRIbinG thE formaLItY wiTh wHiCh, aS a mAtTEr Of PUblic COncerN, IT ShOuLd be AtteStED IN tHe fileS of THe CoMmiSsIOner'S ofFicE; *289 anD did Not intENd tO iNTRuST THe final setTLEMent of sUcH MAtteRS to the InFOrmAL aCTIoN of SUboRDInaTe OffICIaLs IN The BUReAU. WhEn a STaTuTE LImItS A ThINg to bE dONE In a paRTICUlar ModE, iT INCLudES tHe NEGaTiVe oF aNY oTheR MOdE. RAlEIgh, eTc. r.R. Co. v. ReID, 13 WaLL. 269, 270; sCOtt v. fOrD, 52 orE. 288, 296. iT Is pLaIn ThaT nO ComPRomIse IS AuThoriZED by THIs sTAtuTE whICh iS NOT ASseNTED to BY THE SEcretarY of thE trEasUrY. LeaCH v. NicHOlS (c.c.a.) 23 F. (2d) 275, 277. FOr THis rEaSoN, IF foR NO OtHeR thE iNFOrmaL AGReemEnT made iN tHiS Case dId NOt CONstiTUte A sETtLEMeNT which IN iTSElf WAs biNdIng UPoN tHE govERnment Or ThE millS. ANd, wItHOuT dETErMiNinG whEthEr sucH An AgREEmEnT, thoUGH not BInDINg iN iTSELf, maY wheN eXECUTed becomE, UNDEr sOME cIrcuMsTancES, binding On tHE parTiEs BY EStoPpEl, IT SUfFicES To SAY that hErE the fInDiNgs dIscloSE no ADeQuAtE GroUnd For ANy ClAim OF estoPPel BY THE UnIteD states. wE TheREfoRE cOnCluDe tHAt tHe mIlLS WaS Not prEClUdEd by thE setTLeMENt FROm recoVEriNG anY PorTION oF tHe tax to wHiCh iT MAY otheRwIse HaVe BEEn ENtiTLeD. this brinGs US TO thE QUeSTioN WheTher ON tHe fiNDiNGS OF facT ThE mILLs IS entItlEd to REcovER ThE PorTIon OF thE AdDItIOnaL TAx atTrIbuTABlE To thE DisaLlOwAnce oF $783,656.06 oF thE aMoUNT Paid TO tHe DiREctORS whiCH iT haD ClAimed As a dEduCtIon.[7] under § 12(A) of thE revenUE acT oF 1916 THe MiLlS was NoT ENTitleD to thIS DEductiON UNlESs The AMOUnt PaiD COnStItUTEd a PaRt of iTs "ordINaRY AND nECESSary ExpenSes" in the mAinTEnAnCE aND OPEration Of	278 U.S.282 (1929) BOTANY WORSTED MILLS v.UNITED STATES. No.31. SupremeCourt ofUnited States. Submitted April 23, 1928.Argued November 20, 1928. DecidedJanuary 2, 1929. CERTIORARI TO THE COURT OF CLAIMS. 283 Mr. Nathan A. Smyth forpetitioner. SolicitorGeneral Mitchell for the United States. 284 A briefonbehalf of Mr. A.G. Lacy, as amicus curiae, was filed by special leave of Court on motion of the Solicitor General. MR. JUSTICE SANFORD delivered the opinion ofthe Court. The Botany Worsted Mills,a New Jerseycorporation engaged inthe manufactured of woolen and worsted fabrics, made a return of itsnet incomefor thetaxable year1917 under the Revenue Act of 1916[1] and theWar RevenueAct of 1917.[2] By § 12(a) of the Revenue Actit was provided that in ascertaining the net income of a corporation organized in the United States there should be deducted from its grossincome all "the ordinary and necessary expenses paid within the year in the maintenance and operation of its business andproperties." Under this provisiontheMills deducted amounts aggregating $1,565,739.39 paid as compensation to themembers of its board of directors, in addition to salaries of $9,000 each. It paid anincome tax computedin accordance with this return. Thereafter, in 1920, the Commissioner of Internal Revenueassessed an additional income tax against it. Of this, $450,994.06 was attributableto his disallowance of $783,656.06of the deductionclaimed as compensation paid to the directors, on the ground that the totalamount paid as compensation was unreasonableand the remainder of the deduction as allowed represented fair and reasonable compensation. The Mills, after payingthe additional tax, filed a claim for refund of this $450,994.06. The claim wasdisallowed; andthe Mills thereafter, in September 1924, by a petition inthe Courtof Claims sought to recover thissum from the United States, with285 interest alleging that the disallowance of part of thecompensation paid the directors was illegal.[3] Aftera hearing on the merits the court, upon its findings of fact, dismissed thepetition upon the ground that the additionaltaxwas imposed under an agreement of settlementwhich prevented arecovery. 63C. Cls. 405. And this writ of certiorari was granted. The firstquestionpresented is whether the Mills is precluded from recovering theamount claimed byreason of a settlement. Sec. 3229 of the Revised Statutes,[4] provides that: "The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil orcriminal casearising under theinternal-revenuelawsinstead of commencing suit thereon; and,with the advice andconsent of the saidSecretary andthe recommendation of theAttorney-General, he may compromise any such case after a suit thereon has been commenced. Whenever acompromise is made in any case there shall be placed on filein the office ofthe Commissioner the opinionof the Solicitor of Internal Revenue, .. . with his reasons therefor, with a statement of 286 theamount of tax assessed, . . . and the amount actually paid in accordance with the terms of the compromise."[5] The Government did not claimthat therehad been a compromise under this statute, but contended in the Court of Claimsthat, irrespective thereof,an agreement of settlement had been entered into between the Mills and the Commissioner underwhich the Mills had accepted the partialdisallowance as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of whichit still enjoyed, and was therefore estopped from seekinga recovery.As to this matter the findings of fact showthatafter the Mills had paid the amount of thetaxshown by itsoriginal return, aninvestigation of its books disclosed to theCommissioner the necessity of making an additional assessment, to be determined by the settlement ofquestionsrelating to the compensation (or, as it was termed, bonus) paid to the directors, depreciation charged off on itsbooks, and reserves charged to expenses. After much correspondence andnumerous conferences extending overseveral months between the attorney and assistanttreasurer oftheMills and the chief ofthe special audit section of theBureau ofInternal Revenue and other ofhis official associates, a compromise wasagreedto as to all thedifferences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciationwere agreed upon, andtheclaim as to reserve was allowed. Thereupon the Mills prepared and filed anamended return based upon thefigures agreed upon inthe conferences, with documentary evidence which it had 287 agreedto furnish; andthe additional assessment was made in accordance with this return.[6] The court, in sustaining the Government's contention, said: "With the payment of the tax underthe circumstancessurrounding this case the agreement,which is mentioned in the record as a `gentleman's agreement,' becamein legaleffectanexecuted contract of settlement"; and that, as theMills was seeking to recover to account of the particular item which it regarded as unfavorable toits interests, and at the same time hold to theadvantage derivedfrom the settlement of other items in dispute involved in the same general settlement, itshould not be alloweda recovery. The Mills contendsthat the Commissioner had not been given, at thetimein question, any authority,either in express terms or by implication, to compromise tax casesexcept as provided in § 3229; that this statutein grantingsuch authorityunder specific limitations as to the method tobe pursued, negatived his authority toeffect a valid and binding agreement in any other way; that asthe Government couldnot have been estopped bythe unauthorized transactions ofits officials, the Mills likewise could not beestopped thereby; andfurther, that the findings are insufficient to establish an estoppel.The Government does not here challenge any of these contentions. In the brief for the United States filed in this Court the Solicitor General states that the question whether such an informal adjustmentoftaxes as was made in this case is binding on the taxpayer, issubmitted for decision in deference to the opinion of the Courtof Claims and the importance of thequestion butno argumentismade in support of the Government's previous contention that the Mills was estopped fromquestioning 288 the settlement. And, on the contrary, it is stated that "Before and since the date ofthe alleged settlement in this case Congress has evidently proceeded on the theory that no adjustment of a tax controversybetweenrepresentatives of the Bureau of Internal Revenueand a taxpayer is bindingunless made with the formalities and with the approvalof the officials prescribed by statute. The authority of officers of the United States to compromise claims on behalf of oragainst the United States in strictly limited. . .The statutes which authorize conclusive agreements and settlements to be madein particularways and with the approval of designated officers raise the inferencethat adjustmentsor settlements made inother ways are not binding." And further, that "No ground for the United States toclaim estoppel is disclosed in the findings." Independently of these concessions, we are ofthe opinion that the informal settlement made inthis casedid not constitute a binding agreement.Sec. 3229 authorizesthe Commissioner of InternalRevenue to compromise tax claims before suit, with the advice and consent of the Secretary of the Treasury, and requires that an opinion of theSolicitor of Internal Revenue setting forth the compromise be filed in the Commissioner's office. Here the attempted settlement wasmade by subordinate officialsin the Bureau of InternalRevenue. And although it may have been ratified bythe Commissioner in making theadditional assessmentbasedthereon, it does not appear that it wasassented to by the Secretary, or that the opinion of the Solicitor was filedin the Commissioner's office. We think that Congress intended by the statute to prescribed the exclusive methodby which tax casescould be compromised, requiring therefor the concurrence of the Commissioner and theSecretary, and prescribing the formality with which,as a matter of public concern, it should be attested in the files of the Commissioner's office; *289and did not intend to intrust the final settlement of such matterstothe informal action of subordinate officials in the Bureau. When a statute limits athingto be done ina particular mode, itincludes the negative of any other mode. Raleigh, etc. R.R. Co. v. Reid, 13 Wall. 269, 270; Scott v. Ford, 52 Ore. 288,296. It is plain that no compromise isauthorized by this statute which isnot assented to by the Secretary of the Treasury. Leachv. Nichols(C.C.A.) 23F. (2d)275, 277. For this reason, if for no other theinformal agreement made in thiscase did not constitute a settlement which in itselfwas binding upon the Government or the Mills.And, without determining whether such an agreement, thoughnot bindingin itself, maywhen executed become, under some circumstances,bindingon the partiesby estoppel, it suffices to saythat here the findings disclose no adequate ground for any claim of estoppel by the United States. We therefore conclude that the Mills was not precluded by the settlement from recoveringany portion of the tax to which it may otherwise have been entitled. This brings us to thequestionwhether on the findings of fact the Mills is entitled to recover theportionof theadditional tax attributableto the disallowanceof $783,656.06 of the amountpaid to thedirectors which it had claimed as a deduction.[7] Under § 12(a) of the Revenue Act of 1916 the Mills was notentitled to this deductionunlessthe amount paid constituted a part of its"ordinary and necessary expenses" in the maintenance and operation of	_278_ U.S. 282 (1929) BOTANY WORSTED MILLS _v._ _UNITED_ STATES. No. 31. Supreme Court of _United_ States. Submitted April 23, 1928. Argued _November_ 20, 1928. Decided January 2, 1929. CERTIORARI TO _THE_ COURT OF CLAIMS. _283_ Mr. _Nathan_ A. Smyth for petitioner. _Solicitor_ General Mitchell _for_ the _United_ States. 284 A brief on behalf _of_ Mr. _A.G._ _Lacy,_ as amicus curiae, was filed _by_ special _leave_ of Court on motion of the Solicitor General. MR. JUSTICE SANFORD _delivered_ the opinion of the Court. _The_ Botany Worsted Mills, a New Jersey corporation engaged in the manufactured of woolen and worsted fabrics, made a return of its net income for the taxable year 1917 under the Revenue Act of 1916[1] _and_ the War Revenue Act of 1917.[2] By § 12(a) of _the_ Revenue _Act_ _it_ was provided that in ascertaining _the_ net income _of_ _a_ corporation organized in the United States there should be deducted from _its_ gross income _all_ "the ordinary _and_ necessary expenses _paid_ within the year in the maintenance and operation of its business and properties." Under this provision the Mills deducted _amounts_ aggregating $1,565,739.39 paid as compensation to the members of _its_ board of directors, in addition to salaries of $9,000 each. _It_ paid _an_ income tax _computed_ in accordance with _this_ return. Thereafter, in 1920, _the_ Commissioner of _Internal_ Revenue _assessed_ an additional _income_ tax _against_ it. _Of_ _this,_ _$450,994.06_ was attributable _to_ his disallowance of $783,656.06 of the deduction claimed as compensation paid to the directors, on the _ground_ that _the_ _total_ amount paid as compensation was _unreasonable_ _and_ the remainder of _the_ deduction as allowed represented fair and reasonable compensation. The Mills, _after_ paying the additional tax, filed a claim for refund of this $450,994.06. _The_ claim was disallowed; and the Mills _thereafter,_ in September 1924, by a petition in _the_ Court of Claims sought to _recover_ _this_ sum from the United _States,_ with 285 _interest_ alleging that the disallowance of part _of_ the compensation paid _the_ _directors_ was illegal.[3] _After_ a _hearing_ on the merits _the_ court, _upon_ its _findings_ _of_ fact, dismissed the petition _upon_ _the_ ground that the additional tax was imposed under an agreement of settlement which _prevented_ a recovery. _63_ C. Cls. 405. And this writ of certiorari was granted. The first _question_ presented is whether the _Mills_ is precluded from recovering _the_ _amount_ claimed by reason _of_ _a_ settlement. Sec. 3229 of the Revised _Statutes,[4]_ provides _that:_ _"The_ Commissioner _of_ _Internal_ Revenue, with the advice and consent of _the_ _Secretary_ of the Treasury, may compromise any _civil_ _or_ criminal case arising _under_ the _internal-revenue_ laws instead of _commencing_ suit thereon; and, with the advice _and_ consent of the said Secretary _and_ the recommendation of the Attorney-General, he may compromise any such case after a suit thereon has been commenced. Whenever _a_ compromise is made _in_ _any_ case there shall be placed on file in the office of the _Commissioner_ the opinion of _the_ Solicitor of Internal _Revenue,_ . . . with his reasons therefor, with a statement of 286 the amount of tax assessed, . . _._ _and_ the amount actually _paid_ in _accordance_ with the terms of _the_ compromise."[5] _The_ Government did not claim that _there_ had been _a_ compromise under this _statute,_ _but_ _contended_ in the _Court_ of Claims that, _irrespective_ thereof, _an_ agreement of settlement had _been_ entered into between the _Mills_ and the Commissioner under _which_ the Mills had _accepted_ the partial _disallowance_ as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of _which_ it still enjoyed, and _was_ therefore estopped from seeking a recovery. As _to_ this matter the findings _of_ fact show that after the _Mills_ had paid _the_ amount of the tax shown by its original _return,_ an investigation of its books disclosed to the Commissioner the necessity of making _an_ _additional_ assessment, to _be_ determined by the settlement of questions relating to _the_ _compensation_ (or, as it was termed, bonus) _paid_ to _the_ directors, depreciation charged off on its _books,_ and reserves charged to expenses. After _much_ correspondence and _numerous_ _conferences_ extending over several months between _the_ attorney and assistant _treasurer_ of the _Mills_ and the _chief_ of the special audit section of _the_ Bureau _of_ _Internal_ Revenue and other of his _official_ _associates,_ _a_ _compromise_ was _agreed_ to as to all _the_ differences, by which the amounts to be allowed as reasonable compensation _to_ the directors and _as_ _depreciation_ were _agreed_ upon, and the claim as to reserve was _allowed._ Thereupon the Mills prepared and filed an amended _return_ based upon the figures agreed _upon_ in the conferences, with documentary evidence which it had 287 _agreed_ to furnish; and _the_ _additional_ _assessment_ was _made_ in _accordance_ _with_ this return.[6] The court, in sustaining the _Government's_ _contention,_ _said:_ "With the payment of the tax under the circumstances surrounding this case the agreement, which is mentioned in _the_ record as a `gentleman's agreement,' became in legal effect an executed contract _of_ settlement"; _and_ _that,_ as the Mills was seeking to recover to account of _the_ _particular_ item _which_ it regarded as unfavorable to its _interests,_ and at _the_ _same_ time hold to the advantage derived from the settlement of _other_ items in _dispute_ _involved_ in the same general settlement, it should not be _allowed_ a recovery. The Mills contends _that_ the Commissioner had _not_ been given, at the time in _question,_ any _authority,_ either in _express_ _terms_ or by implication, to compromise tax _cases_ _except_ _as_ provided in _§_ 3229; that this statute in granting such authority under specific _limitations_ as to the method to be pursued, negatived his authority to _effect_ a _valid_ and binding agreement in any other way; that _as_ the Government could not _have_ been _estopped_ _by_ the unauthorized _transactions_ _of_ its officials, the Mills likewise could not be _estopped_ thereby; and further, that the findings are insufficient to establish an estoppel. The Government does not here challenge any of these _contentions._ In _the_ _brief_ for the _United_ States filed in _this_ _Court_ _the_ _Solicitor_ _General_ states that _the_ question whether such _an_ informal adjustment of _taxes_ as was made in this _case_ is binding on _the_ taxpayer, is submitted _for_ _decision_ in deference _to_ _the_ _opinion_ of the Court of Claims and the importance of _the_ _question_ but no argument _is_ made in support of the Government's _previous_ contention _that_ the Mills was estopped from questioning 288 the settlement. _And,_ on the _contrary,_ it is stated that "Before and _since_ the _date_ of the alleged settlement in this case Congress has evidently proceeded on the theory that _no_ adjustment of a tax _controversy_ between representatives of the Bureau of _Internal_ Revenue and a taxpayer is binding unless made with the formalities and with the approval of _the_ officials prescribed by statute. The authority of officers of the United _States_ to _compromise_ claims on behalf _of_ or against _the_ United States _in_ _strictly_ limited. . . The statutes which authorize conclusive agreements and settlements to be made in particular ways and with the _approval_ of designated _officers_ raise the inference that adjustments or settlements _made_ in other ways are not binding." And further, that _"No_ ground for the United States _to_ claim _estoppel_ is _disclosed_ in the _findings."_ Independently of these concessions, we are of the opinion that the informal settlement made in this case did _not_ constitute a binding agreement. Sec. 3229 _authorizes_ the Commissioner _of_ Internal Revenue _to_ compromise tax claims before suit, with the advice and consent of the _Secretary_ of the Treasury, and _requires_ that an opinion of _the_ _Solicitor_ of Internal Revenue setting forth the compromise be _filed_ in the _Commissioner's_ _office._ Here the _attempted_ settlement was made by subordinate officials in the Bureau of Internal Revenue. And although it may have _been_ ratified by _the_ Commissioner in making the _additional_ assessment based thereon, it does not appear that it was assented to by _the_ Secretary, or _that_ the _opinion_ of the _Solicitor_ was filed in the Commissioner's office. We think that Congress intended _by_ the statute to _prescribed_ _the_ exclusive method by which tax cases could be compromised, requiring therefor _the_ concurrence _of_ _the_ Commissioner _and_ _the_ Secretary, and prescribing the formality with which, as a matter of public _concern,_ it _should_ be attested in the files of the _Commissioner's_ office; *289 and _did_ not intend to intrust the final settlement of such matters _to_ the _informal_ _action_ of subordinate _officials_ in the Bureau. When a statute limits a thing to be done in a particular mode, it includes _the_ negative of _any_ other mode. Raleigh, etc. R.R. Co. v. Reid, _13_ Wall. 269, _270;_ Scott v. Ford, 52 Ore. 288, 296. It is plain that no _compromise_ _is_ authorized by this _statute_ which _is_ not _assented_ _to_ by the Secretary of _the_ Treasury. Leach v. Nichols (C.C.A.) 23 _F._ (2d) 275, 277. _For_ _this_ reason, if for no _other_ the informal agreement _made_ in this _case_ did not constitute a _settlement_ which in itself _was_ binding _upon_ _the_ Government or the _Mills._ And, without determining whether _such_ an agreement, though not binding in itself, may when executed become, under some circumstances, binding on _the_ parties by estoppel, _it_ suffices to say that here the findings disclose no _adequate_ ground _for_ any _claim_ _of_ estoppel by the _United_ States. We therefore _conclude_ that the Mills _was_ not precluded by the settlement _from_ recovering _any_ portion of the tax to _which_ _it_ may otherwise have been entitled. This _brings_ us to the question whether on the findings of fact the Mills is entitled to recover _the_ portion _of_ the additional tax attributable to _the_ disallowance of _$783,656.06_ of the amount paid to _the_ directors _which_ it had claimed _as_ a deduction.[7] _Under_ § 12(a) _of_ the Revenue Act of 1916 the Mills was not _entitled_ to this deduction _unless_ _the_ amount paid constituted a part _of_ its "ordinary _and_ necessary _expenses"_ in the maintenance and _operation_ of
359 F.2d 886 Application of Albert BOWERS and James C. Orr. Patent Appeal No. 7584. United States Court of Customs and Patent Appeals. May 12, 1966. Evelyn K. Merker, Leon Simon, Washington, D. C., for appellants. Clarence W. Moore, Washington, D. C. (Jack E. Armore, Washington, D. C., of counsel), for Commissioner of Patents. Before RICH, Acting Chief, MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.* SMITH, Judge. 1 Syntex Corporation is the common assignee of the appealed application1 and the 2 patents2 relied upon for the rejection. Different joint inventors are named in the application and in the patents. Albert Bowers, one of the nominal appellants here, is one of the joint inventors in the appealed application and in the 2 above named patents. The appealed application is senior in filing date to the applications upon which the patents were issued. 2 The Board of Appeals in its decision of March 18, 1964 affirmed3 the rejection of appealed claims 1 to 12 of appellants' application as "unpatentable over" claim 1 of the Bowers and Edwards patent and affirmed the rejection of appealed claim 13 as being "unpatentable over" claim 16 of the Bowers and Berkoz patent. 3 Closely related subject matter is disclosed in the patents and the application on appeal. The steroid compounds here claimed differ from the compounds claimed in the indicated patents by the presence in the steroid structure of a 2-methyl group instead of a hydrogen atom. 4 It was the examiner's position that the 2-methyl compounds of the appealed claims are so closely related to the hydrogen containing, or 2-desmethyl, compounds of the indicated patent claims as to be, in the words of the Board of Appeals, "obvious therefrom to those skilled in the art." 5 The statutory basis for the rejection is not clear from the record. While using certain of the language of 35 U.S.C. § 103, in affirming the examiner's rejection,4 the board does not explain how the patents, issuing on applications filed later than the filing date of the appealed application, can be considered as prior art against the invention here claimed. Earlier filed applications of "another" describing the invention claimed in a later filed application are prior art under 35 U.S.C. § 102(e) and as such are available for consideration in a 35 U.S.C. § 103 "obviousness" rejection Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304. However, the rule does not warrant a rejection under 35 U.S.C. §§ 102 or 103 on patents that issued on later filed applications. Such references are clearly excluded by the precise language of sections 102(e) and 103. 6 The opinion of the board seeks to justify the rejection in its statement: 7 * * * The Examiner rules that, in view of this close relationship and the obviousness of the claimed compounds from the patented claims, appellants are not entitled to receive a patent on the basis of the appealed claims, since appellants' assignee had received patent protection on essentially the same inventions in the Bowers and Edwards and the Bowers and Berkoz patents. * * * * * * * * * 8 It is unfortunate that the issue of "double patenting" was not raised at the earliest possible date * * . 9 There is no objection of record concerning this being a new ground of rejection. 10 Subsequent to the decision of the board, a petition for rehearing was filed in which the separate nature of the involved inventions was pointed out and discussed. Later, and subsequent to our decision of May 14, 1964 in In re Robeson, 331 F.2d 610, 51 CCPA 1271, appellants filed a letter of June 19, 1964, in which the Board of Appeals was requested to consider the disclaimer, filed concurrently therewith, in which they disclaimed: 11 * * the terminal portion of the term of the above identified application Serial No. 138,265 as would extend beyond October 2, 1979, the expiration date of U. S. Patent No. 3,056,814, with respect to Claims 1-12, and as would extend beyond March 19, 1980, the expiration date of U. S. Patent No. 3,082,220, with respect to Claim 13. 12 Appellants' letter of June 19, 1964 refers to our Robeson decision as being "directly in point" and argued: 13 * * * that the attached disclaimer obviates the basis of the double patenting rejection of claims 1-13 on appeal, over the common assignee's Patent No. 3,056,814 and No. 3,082,220. The disclaimer precludes any extension of the monopoly since it provides for the expiration of the above identified application, if patented, simultaneously with Patent Nos. 3,056,814 and 3,082,220. 14 In its decision on the petition for reconsideration, the board considered the contents of the letter of June 19, 1964, and criticized one of the signatures appearing on the disclaimer. It then stated: 15 Assuming that this paper were a disclaimer operative to disclaim the indicated portions of a patent granted on the instant applications, we could give it no weight in the present appeal because it is not apparent that In re Robeson, supra, or the subsequent decision, In re Kaye, 51 CCPA [1465, 332 F.2d 816] 141 USPQ 829, apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. * * * 16 Subsequently appellants filed a new disclaimer to overcome the board's criticism as to form which was accepted and has been duly recorded in the United States Patent Office. By order of the court upon granting appellants motion to correct diminution of record, which was not objected to by the Solicitor for the U. S. Patent Office, this new disclaimer was added to the record. The Solicitor here does not challenge the sufficiency of the new disclaimer nor does he argue that the effect of the terminal disclaimer on the rejection is not before us. We will therefore turn to a consideration of the subject matter defined in the appealed claims and the patent claims. 17 We find that we are here dealing with different inventions. As pointed out in appellants' brief: 18 It is apparent that a single invention is not involved. The inventions of the involved application and those of the reference patents are not identical; they are different and distinct inasmuch as the inventions differ in the presence of a CH2 grouping at a specific position in the complex steroid molecule. It is clear that the claims of the Bowers and Orr application, which was the first filed application, define an invention separate and different from those defined in the reference patents owned by the same assignee. 19 Appellants also point out in their brief that "Each invention would be patentable absent the other," which is not disputed by the Patent Office. The brief then continues: 20 It is clear that separate, distinct and nonidentical inventions are described in the application at bar and in the patented inventions. It is therefore contended that a terminal disclaimer is appropriate in the case at bar to overcome a double patenting rejection under the holding of In re Robeson and In re Kaye. 21 As we stated in Kaye, supra, 332 F.2d at 819, 51 CCPA at 1468, in reference to Robeson, supra: 22 In that case we held that where, as here, the claims define separate, albeit patentably indistinct, inventions, the filing of a terminal disclaimer may obviate a double patenting rejection. 23 Thus, it seems to us that the board's position must stand or fall on the issue of whether our decisions in Robeson, supra, and Kaye, supra, as stated by the board, "apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity." 24 It is true that in both Robeson, supra, and Kaye, supra, the double patenting rejections which we found to be obviated by the terminal disclaimer were predicated in each case on the same inventorship. However, we find this to be a distinction without legal significance in the present context. 25 Statutory authority for the terminal disclaimer here in issue is found in 35 U.S.C. § 253, the second paragraph of which provides: 26 In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted. 27 It is to be noted that the parties authorized by the statute to file the terminal disclaimer are "any patentee or applicant." It seems clear that Congress intended that the remedies of this section were also to be available to assignees in view of the express provision of 35 U.S.C. § 100(d) that: 28 (d) The word "patentee" includes not only the patentee to whom the patent was issued but also the successors in title to the patentee. 29 The statutory provisions thus support appellants' position and are contrary to the solicitor's arguments. 30 The solicitor argues that the common	359 f. 2d 886 application of albert bowers and james c. orr. patent appeal no. 7584. united states court of customs and patent appeals. may 12, 1966. evelyn k. merker, leon simon, washington, d. c., for appellants. clarence w. moore, washington, d. c. ( jack e. armore, washington, d. c., of counsel ), for commissioner of patents. before rich, acting chief, martin, johnson, and almond, judges, and judge william h. kirkpatrick. * smith, judge. 1 syntex corporation is the common assignee of the appealed application1 and the 2 patents2 relied upon for the rejection. different joint inventors are named in the application and in the patents. albert bowers, one of the nominal appellants here, is one of the joint inventors in the appealed application and in the 2 above named patents. the appealed application is senior in any date to the applications upon which the patents had issued. 2 the board granted appeals in its decision of march 18, 1964 affirmed3 the rejection of appealed claims 1 to 12 of appellants ' application as " unpatentable over " claim 1 of the bowers and edwards patent and affirmed the rejection of appealed claim 13 as being " unpatentable over " claim 16 of the bowers and berkoz patent. 3 closely related subject matter is disclosed in the patents and the application on appeal. the steroid compounds here claimed differ upon the compounds claimed in the indicated patents by the presence in the steroid structure of a 2 - methyl group product of a hydrogen atom. 4 it was the examiner ' s position that the 2 - methyl compounds of the appealed claims are so closely related to the hydrogen containing, or 2 - desmethyl, compounds of the indicated patent claims as to be, in the words of the board of appeals, " obvious therefrom to those skilled in the art. " 5 the statutory basis for a rejection is not clear from the record. while using certain of the language of 35 u. s. c. § 103, in affirming either examiner ' s rejection, 4 the board does not explain how the patents, issuing on applications filed later than the filing date of the appealed application, can be considered as prior art against the article here claimed. earlier filed applications of " another " as the invention claimed in a later filed application are prior art under 35 u. s. c. § 102 ( e ) and as such are available for consideration in a 35 u. s. c. § 103 " obviousness " rejection hazeltine research, inc. v. brenner, 382 u. s. 252, 86 s. ct. 335, 15 l. ed. 2d 304. however, the rule does not warrant a rejection under 35 u. s. c. § § 102 or 103 on patents that issued on later filed applications. such references are clearly excluded by the precise language of sections 102 ( e ) and 103. 6 the opinion of the board seeks to justify the rejection in its statement : 7 * * * the examiner rules that, in view of this close relationship and the obviousness of the claimed compounds from the patented claims, appellants are not entitled to receive a patent on the basis of the appealed claims, since appellants ' assignee had received patent protection on essentially the same inventions in the bowers and edwards and the bowers and berkoz patents. * * * * * * * * * 8 it is unfortunate that the issue of " double patenting " was not raised at the earliest possible date * * . 9 there is no objection of record concerning this being a new ground of rejection. 10 subsequent to the decision of the board, a petition for rehearing was filed in which the separate nature of the involved inventions was pointed out and discussed. later, and subsequent to our decision of may 14, 1964 in in re robeson, 331 f. 2d 610, 51 ccpa 1271, appellants filed a letter of june 19, 1964, in which the board of appeals was requested to consider the disclaimer, filed concurrently therewith, in which they disclaimed : 11 * * the terminal portion of the term of the above identified application serial no. 138, 265 as would extend beyond october 2, 1979, the expiration date of u. s. patent no. 3, 056, 814, with respect to claims 1 - 12, and as would extend beyond march 19, 1980, the expiration date of u. s. patent no. 3, 082, 220, with respect to claim 13. 12 appellants ' letter of june 19, 1964 refers to our robeson decision as being " directly in point " and argued : 13 * * * that the attached disclaimer obviates the basis of the double patenting rejection of claims 1 - 13 on appeal, over the common assignee ' s patent no. 3, 056, 814 and no. 3, 082, 220. the disclaimer precludes any extension of the monopoly since it provides for the expiration of the above identified application, if patented, simultaneously with patent nos. 3, 056, 814 and 3, 082, 220. 14 in its decision on the petition for reconsideration, the board considered the contents of the letter of june 19, 1964, and criticized one of the signatures appearing on the disclaimer. it then stated : 15 assuming that this paper were a disclaimer operative to disclaim the indicated portions of a patent granted on the instant applications, we could give it no weight in the present appeal because it is not apparent that in re robeson, supra, or the subsequent decision, in re kaye, 51 ccpa [ 1465, 332 f. 2d 816 ] 141 uspq 829, apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. * * * 16 subsequently appellants filed a new disclaimer to overcome the board ' s criticism as to form which was accepted and has been duly recorded in the united states patent office. by order of the court upon granting appellants motion to correct diminution of record, which was not objected to by the solicitor for the u. s. patent office, this new disclaimer was added to the record. the solicitor here does not challenge the sufficiency of the new disclaimer nor does he argue that the effect of the terminal disclaimer on the rejection is not before us. we will therefore turn to a consideration of the subject matter defined in the appealed claims and the patent claims. 17 we find that we are here dealing with different inventions. as pointed out in appellants ' brief : 18 it is apparent that a single invention is not involved. the inventions of the involved application and those of the reference patents are not identical ; they are different and distinct inasmuch as the inventions differ in the presence of a ch2 grouping at a specific position in the complex steroid molecule. it is clear that the claims of the bowers and orr application, which was the first filed application, define an invention separate and different from those defined in the reference patents owned by the same assignee. 19 appellants also point out in their brief that " each invention would be patentable absent the other, " which is not disputed by the patent office. the brief then continues : 20 it is clear that separate, distinct and nonidentical inventions are described in the application at bar and in the patented inventions. it is therefore contended that a terminal disclaimer is appropriate in the case at bar to overcome a double patenting rejection under the holding of in re robeson and in re kaye. 21 as we stated in kaye, supra, 332 f. 2d at 819, 51 ccpa at 1468, in reference to robeson, supra : 22 in that case we held that where, as here, the claims define separate, albeit patentably indistinct, inventions, the filing of a terminal disclaimer may obviate a double patenting rejection. 23 thus, it seems to us that the board ' s position must stand or fall on the issue of whether our decisions in robeson, supra, and kaye, supra, as stated by the board, " apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. " 24 it is true that in both robeson, supra, and kaye, supra, the double patenting rejections which we found to be obviated by the terminal disclaimer were predicated in each case on the same inventorship. however, we find this to be a distinction without legal significance in the present context. 25 statutory authority for the terminal disclaimer here in issue is found in 35 u. s. c. § 253, the second paragraph of which provides : 26 in like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted. 27 it is to be noted that the parties authorized by the statute to file the terminal disclaimer are " any patentee or applicant. " it seems clear that congress intended that the remedies of this section were also to be available to assignees in view of the express provision of 35 u. s. c. § 100 ( d ) that : 28 ( d ) the word " patentee " includes not only the patentee to whom the patent was issued but also the successors in title to the patentee. 29 the statutory provisions thus support appellants ' position and are contrary to the solicitor ' s arguments. 30 the solicitor argues that the common	359 F. 2d 886 Application of Albert BOWERS and James C. Orr. Patent Appeal No. 7584. United States Court of Customs and Patent Appeals. May 12, 1966. Evelyn K. Merker, Leon Simon, Washington, D. C. , for appellants. Clarence W. Moore, Washington, D. C. (Jack E. Armore, Washington, D. C. , of counsel ), for Commissioner of Patents. Before RICH, Acting Chief, MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK. * SMITH, Judge. 1 Syntex Corporation is the common assignee of the appealed application1 and the 2 patents2 relied upon for the rejection. Different joint inventors are named in the application and in the patents. Albert Bowers, one of the nominal zppellQnts here, is one of the joint inventors in the appealed application and in the 2 above named patents. The appealed application is senior in filing date to the applications upon which the patents were 9ssu3d. 2 The Board of Appeals in its decision of March 18, 1964 affirmed3 the rejection of appealed claims 1 to 12 of appellants ' application as " unpatentable over " claim 1 of the Bowers and Edwards patent and affirmed the rejection of appealed claim 13 as being " unpatentable over " claim 16 of the Bowers and Berkoz patent. 3 Closely related subject matter is disclosed in the patents and the application on appeal. The steroid compounds here claimed differ from the compounds claimed in the indicated patents by the presence in the steroid structure of a 2 - methyl group instead of a hydrogen atom. 4 It was the examiner ' s position that the 2 - methyl compounds of the appealed claims are so closely related to the hydrogen containing, or 2 - desmethyl, compounds of the indicated patent claims as to be, in the words of the Board of Appeals, " obvious therefrom to those skilled in the art. " 5 The statutory basis for the rejection is not clear from the record. While using certain of the language of 35 U. S. C. § 103, in affirming the examiner ' s rejection, 4 the board does not explain how the patents, issuing on applications filed later than the filing date of the appealed application, can be considered as prior art against the invention here claimed. Earlier filed applications of " another " describing the invention claimed in a later filed application are prior art under 35 U. S. C. § 102 (e) and as such are available for donsideratiog in a 35 U. S. C. § 103 " obviousness " rejection Hazeltine Research, Inc. v. Brenner, 382 U. S. 252, 86 S. Ct. 335, 15 L. Ed. 2d 304. However, the rule does not warrant a rejection under 35 U. S. C. § § 102 or 103 on patents that issued on later filed applications. Such references are clearly excluded by the precise language of sections 102 (e) and 103. 6 The opinion of the board seeks to justify the rejection in its statement: 7 * * * The Examiner rules that, in view of this close relationship and the obviousness of the claimed compounds from the patented claims, appellants are not entitled to receive a patent on the basis of the appealed claims, since appellants ' assignee had received patent protection on essentially the same inventions in the Bowers and Edwards and the Bowers and Berkoz patents. * * * * * * * * * 8 It is unfortunate that the issue of " double patenting " was not raised at the earliest possible date * * . 9 There is no objection of record concerning this being a new ground of rejection. 10 Subsequent to the decision of the board, a petition for rehearing was filed in which the separate nature of the involved inventions was pointed out and discussed. Later, and subsequent to our decision of May 14, 1964 in In re Robeson, 331 F. 2d 610, 51 CCPA 1271, appellants filed a letter of June 19, 1964, in which the Board of Appeals was requested to consider the disclaimer, filed concurrently therewith, in which they disclaimed: 11 * * the terminal portion of the term of the above identified application Serial No. 138, 265 as would extend beyond October 2, 1979, the expiration date of U. S. Patent No. 3, 056, 814, with respect to Claims 1 - 12, and as would extend beyond March 19, 1980, the expiration date of U. S. Patent No. 3, 082, 220, with respect to Claim 13. 12 Appellants ' letter of June 19, 1964 refers to our Robeson decision as being " directly in point " and argued: 13 * * * that the attached disclaimer obviates the basis of the double patenting rejection of claims 1 - 13 on appeal, over the common assignee ' s Patent No. 3, 056, 814 and No. 3, 082, 220. The disclaimer precludes any extension of the monopoly since it provides for the expiration of the above identified application, if patented, simultaneously with Patent Nos. 3, 056, 814 and 3, 082, 220. 14 In its decision on the petition for reconsideration, the board considered the contents of the letter of June 19, 1964, and criticized one of the signatures appearing on the disclaimer. It then stated: 15 Assuming that this paper were a disclaimer operative to disclaim the indicated portions of a patent granted on the instant applications, we could give it no weight in the present appeal because it is not apparent that In re Robeson, supra, or the subsequent decision, In re Kaye, 51 CCPA [1465, 332 F. 2d 816] 141 USPQ 829, apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. * * * 16 Subsequently appellants filed a new disclaimer to overcome the board ' s criticism as to form which was accepted and has been duly recorded in the United States Patent Office. By order of the court u00n granting appellants motion to correct diminution of reFKrd, which was not objected to by the Solicitor for the U. S. Patent Office, this new disclaimer was added to the record. The Solicitor here does not challenge the sufficiency of the new disclaimer nor does he argue that the effect of the terminal disclaimer on the rejection is not before us. We will therefore turn to a consideration of the subject matter defined in the appealed claims and the pa6eny claims. 17 We find that we are here dealing with didfer3nt inventions. As pointed out in appellants ' brief: 18 It is apparent that a single invention is not involved. The inventions of the involved application and those of the reference patents are not identical; they are different and distinct inasmuch as the inventions differ in the presence of a CH2 grouping at a specific position in the complex steroid molecule. It is clear that the claims of the BoSRrs and Orr application, which was the first filed application, define an invention separate and different Ero, those defined in the reference patents owned by the same assignee. 19 Appellants also point out in their brief that " Each invention would be patentable absent the other, " which is not disputed by the Patent Office. The brief then continues: 20 It is clear that separate, distinct and nonidentical inventions are described in the application at bar and in the patented inventions. It is therefore contended that a terminal disclaimer is appropriate in the case at bar to overcome a double patenting rejection under the holding of In re Robeson and In re Kaye. 21 As we stated in Kaye, supra, 332 F. 2d at 819, 51 CCPA at 1468, in reference to Robeson, supra: 22 In that case we held that where, as here, the claims define separate, albeit patentably indistinct, inventions, the filing of a terminal disclaimer may obviate a double patenting rejection. 23 Thus, it seems to us that the board ' s positi8J must stand or fall on the issue of whether our decisions in Robeson, supra, and Kaye, supra, as stated by the board, " apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. " 24 It is true that in both Robeson, supra, and Kaye, supra, the double patenting rejections which we found to be obviated by the terminal disclaimer were predicated in each case on the same inventorship. However, we find this to be a distinction without legal significance in the present context. 25 Statutory authority for the terminal disclaimer here in issue is found in 35 U. S. C. § 253, the second paragraph of which provides: 26 In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted. 27 It is to be noted that the parties authorized by the statute to file the terminal disclaimer are " any patentee or applicant. " It seems clear that Congress intended that the remedies of this section were also to be available to assignees in view of the express provision of 35 U. S. C. § 100 (d) that: 28 (d) The word " patentee " includes not only the patentee to whom the patent was issued but also the successors in title to the patentee. 29 The statutory provisions thus support appellants ' position and are contrary to the solicitor ' s arguments. 30 The solicitor argues that the common	F.2d 886 Application of Albert BOWERS and James C. Orr. Patent No. 7584. United States Court of Customs and Patent Appeals. May 12, 1966. Evelyn K. Merker, Leon Washington, D. C., for appellants. Clarence W. Moore, D. C. (Jack E. Armore, Washington, D. C., of counsel), for Commissioner of Patents. RICH, Acting Chief, MARTIN, SMITH, and ALMOND, and Judge H. KIRKPATRICK.* SMITH, Judge. Syntex Corporation is the of the appealed application1 and the 2 patents2 relied upon the rejection. Different joint inventors are named the application and in the patents. Albert Bowers, one of the nominal appellants here, is one of the joint inventors in the appealed application and in the 2 above named patents. The appealed application is senior date to applications upon which the were issued. 2 The Board of Appeals in its decision of March 18, 1964 affirmed3 the rejection of appealed claims 1 to 12 of appellants' application as "unpatentable over" claim 1 of Bowers and Edwards and affirmed the rejection appealed claim 13 as "unpatentable over" claim 16 of the Bowers and Berkoz patent. 3 related subject matter is disclosed in the patents and the on appeal. The steroid compounds here claimed differ from the compounds claimed in the indicated patents by the steroid structure of a 2-methyl instead of a hydrogen atom. 4 It was the examiner's position that the of the appealed claims are so closely to the hydrogen containing, or 2-desmethyl, compounds of the indicated patent claims as to be, in the of the Board of "obvious therefrom those skilled in the art." 5 The statutory basis for the rejection is not clear from the record. While using certain the language of 35 U.S.C. § 103, in affirming examiner's the board does not explain how the issuing on applications filed later than the filing date of the appealed application, can be considered as prior art against the invention here claimed. Earlier filed applications of "another" describing the invention claimed in a later filed application are prior art under 35 U.S.C. § 102(e) and as such are available for consideration in a 35 U.S.C. § 103 "obviousness" rejection Hazeltine Research, Inc. v. U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304. However, the rule does not warrant a under 35 U.S.C. §§ 102 or 103 on that issued on later filed applications. Such are clearly excluded by the precise language of sections 102(e) 103. 6 The opinion of board seeks justify the rejection in its statement: 7 * * * The Examiner rules that, in view of this close relationship and the obviousness of the compounds from patented claims, appellants are entitled to receive a patent on the basis of the appealed claims, since appellants' assignee had received patent protection on essentially same inventions in the Bowers and and the Bowers and patents. * * * * * * * 8 It is unfortunate that the issue of patenting" was not at earliest possible date * * . 9 There is no objection of record concerning this being a new ground rejection. to the decision of the board, a petition for rehearing was filed in which separate nature the involved was pointed out and discussed. Later, and subsequent to our decision of May 14, 1964 in In re Robeson, F.2d 610, 51 CCPA 1271, appellants filed a letter of June 19, 1964, in which the Board of Appeals to consider the filed therewith, which they disclaimed: 11 * * the portion of the of the above identified application Serial 138,265 as would extend beyond October 1979, the expiration of U. S. Patent No. 3,056,814, with respect to Claims 1-12, as would extend beyond March 1980, the expiration date of U. S. No. 3,082,220, respect to Claim 12 Appellants' letter of June 19, 1964 refers to our decision as being "directly point" and argued: 13 * * * that the attached disclaimer obviates basis of the double patenting rejection of 1-13 on appeal, over the common assignee's No. 3,056,814 and No. 3,082,220. The disclaimer precludes any extension of the monopoly since it provides for expiration above application, if patented, simultaneously Nos. 3,056,814 and 3,082,220. 14 its decision on the petition for reconsideration, the board considered the contents of the letter of June 19, 1964, and criticized one the signatures appearing on the disclaimer. It stated: 15 Assuming that this paper a operative to the indicated portions of a patent granted on the instant applications, we could give it no weight the present appeal because it is not apparent that In re Robeson, supra, or the subsequent decision, In re Kaye, 51 CCPA [1465, 332 F.2d 816] USPQ 829, apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different * * * Subsequently appellants filed a new to overcome the board's criticism as to form which accepted and has been duly recorded in the United States Patent Office. By order of the court upon granting appellants motion to correct of record, which was not objected to by the Solicitor for the U. S. Patent Office, this new disclaimer was added the record. The Solicitor here does not challenge the sufficiency of the new disclaimer nor does he argue that the effect of the terminal disclaimer on the rejection is not before us. We will therefore turn to a consideration of the subject matter defined in the appealed claims the patent claims. 17 We find that we are here dealing with different As pointed in appellants' brief: 18 It is apparent that a single invention not involved. The inventions of the and of the reference patents are identical; they are and distinct inasmuch as the differ in the presence of a CH2 grouping at a specific position in the complex steroid molecule. It is clear the claims of the Bowers and Orr application, which was the first application, define invention separate and different from those defined in the reference patents owned by the same assignee. 19 Appellants point out in their brief that "Each invention would be patentable absent the other," which is not disputed by the Patent Office. The brief then continues: It is clear that separate, distinct and are described in the application at bar and in the patented inventions. It is therefore contended that a terminal is appropriate the case at bar to overcome double patenting rejection under the holding of In re Robeson and In Kaye. 21 As we stated in Kaye, supra, 332 at 819, 51 CCPA at 1468, in reference to Robeson, supra: 22 In that case we held that where, as here, the claims define separate, albeit inventions, the filing of a terminal disclaimer may a double patenting rejection. 23 Thus, it seems to us that the board's position must stand or fall on the issue of whether our decisions in Robeson, supra, and Kaye, supra, as stated by the board, "apply to the situation where terminal disclaimer is offered with respect the commonly owned patent of a different inventive entity." 24 It is true that in both Robeson, supra, and Kaye, supra, the double patenting rejections which we found to obviated by the terminal disclaimer were predicated in each case on the same inventorship. However, we find this to be a distinction without significance in the present context. 25 Statutory authority for the terminal disclaimer here in issue is found in 35 U.S.C. § 253, the second paragraph of which provides: 26 In like manner any patentee or may disclaim or to the public the entire any terminal part of the term, of the patent granted or to be 27 It is be that the parties authorized the statute file the terminal disclaimer are "any patentee or applicant." It seems clear that intended the remedies of this were also to available to assignees in view of the express provision of 35 U.S.C. § 100(d) that: 28 (d) The word "patentee" includes not only the patentee to whom the was issued but also the successors in title to the patentee. The provisions thus support appellants' position and are contrary to the arguments. 30 The solicitor argues that the	359 f.2d 886 aPplICatIoN Of ALBeRt BOweRs aNd jaMeS c. ORR. pAtENt appEAl No. 7584. uNiTeD STATes CouRt oF CusToMs AnD PaTENT aPpeAls. mAy 12, 1966. EvElyN K. meRKER, LeOn simON, wAsHINgtON, D. C., FoR appeLlANTs. clARencE W. moOre, WashINGtoN, d. c. (JAck E. ArmOre, wAsHiNGtoN, d. c., Of cOunsEL), For ComMIssIoNER OF pATEnTS. beFoRe rICh, aCTIng chiEF, mARTIN, sMITh, AnD AlMond, juDges, AnD jUDGe wiLliAM H. KIRKpatRICk.* smith, juDgE. 1 syNTEx corporAtiON is thE COMMon ASSiGNee of tHe apPEAleD aPPliCAtiON1 anD ThE 2 PaTENts2 RElIED UPOn FOR THE REjEcTION. DiFFErENt JoinT inVeNtOrS Are named iN the aPPlIcATIoN AND iN thE PATEnTS. ALbERt BoWeRS, one oF tHE NomInAL APpellANtS hERe, iS oNE of the joInT inVEnTorS iN thE apPeALeD APPlICaTiON And iN the 2 aBOve NAmeD PAtENts. the ApPeALeD APpLiCatIoN iS seNIoR in filing daTE tO THe ApPLIcATIOns uPon wHiCH thE PaTEnTs WErE iSSueD. 2 THe bOArd of AppeALs iN iTS deCiSion Of maRch 18, 1964 affIRmed3 thE RejeCTiOn OF aPPeALeD CLAiMs 1 TO 12 oF APPElLaNts' APPLicAtIon AS "unPAtENTaBLE oveR" claim 1 OF tHe boWeRs ANd edwaRDS pATENt and aFFIRMeD ThE rEjECTioN OF APPealEd clAim 13 aS beinG "unPaTENtABLe OVer" ClAiM 16 of the bOWers AND BErKoZ PaTeNt. 3 clOselY reLaTED SubjecT MAtTEr Is DIScLOSED IN The paTenTS aND The apPliCATIoN On APPEaL. tHe StErOId cOMpounDS heRe clAImED DIFfeR FrOM thE compoUNdS claiMeD iN tHe inDicAted pATeNTS BY tHe PreSeNce In ThE sTEROid StrucTurE OF a 2-mEThYl grOUP InsTEAd of A hYDrOgen aTom. 4 iT WaS THE eXAMINer'S PoSiTIOn ThAt the 2-mEthYL COmPOuNds OF tHe aPPEaLEd cLaims aRE So ClOSeLY RElatEd to tHe hyDrOgEN CoNtaINiNg, Or 2-DeSMETHYL, COMpOuNdS of tHE INDIcatEd paTeNt clAiMS aS TO bE, iN THE WoRdS of The bOarD of apPEaLS, "ObVious TheRefRom To ThosE SkiLlED iN THe ART." 5 tHe sTatUtOry BaSIS FOr tHe REjecTION iS Not CLEar fROm thE rEcORd. WhilE usInG cERtaIN of THe LANGUagE OF 35 U.S.C. § 103, IN AffiRming ThE EXaMiNeR'S REjeCtION,4 tHe boARd DoEs noT eXPlAIn hoW THe PatENts, issuiNG on aPPLicaTIONs FILeD lATer Than thE FILing DaTe OF the APpeALED apPlIcATiOn, can BE CONsideREd As pRIOR ARt aGAiNST tHE iNVEnTIOn here claiMeD. eArlIEr FilEd aPPliCAtIOns OF "ANOtHER" deScrIbiNG THe INVenTIOn CLAIMEd In A laTEr FilEd aPPliCATIon aRE PRior aRt unDeR 35 U.S.C. § 102(E) And aS SucH aRe avaIlaBle fOR cONSidERATIOn In A 35 u.S.c. § 103 "OBVioUsness" rEjEction hazELtiNE rEsEarch, INC. v. brENnEr, 382 u.s. 252, 86 S.ct. 335, 15 l.Ed.2D 304. hoWEvEr, THE ruLE doES NOT WaRRaNt a reJecTioN UNdER 35 U.S.C. §§ 102 Or 103 on pAtENTS THaT IsSued ON lATER FiLeD APpLICAtiONs. suCh reFeReNces ArE CLeaRLY EXcLUdED By ThE pRECISe LANguAgE OF SecTIOnS 102(e) And 103. 6 thE oPiNION OF tHE boarD SeeKs To jUSTIfY The reJEcTIon In iTS STATEment: 7 * * * tHe EXAMiNEr ruLEs tHAT, IN ViEW Of tHIS ClOse RELaTIoNSHIp and tHe ObviOusnEss OF thE ClaiMeD coMPOUNDs FrOm The pAtENtED cLAiMS, apPellAntS are not entITlED TO reCEIve a PATent on THE BaSIS of the aPpEAlED ClaImS, sINCE apPElLANTs' assiGNEE HaD RecEIved Patent PrOtEction ON EsSeNTIALLy THE sAMe invENtiOnS IN THE BOwERs anD eDWArds ANd tHE boWeRs AnD BeRKoz PATents. * * * * * * * * * 8 IT is UNfoRTUnate That tHE IssuE of "doUble pAteNtinG" WAs noT RaISED at THE EArLIEst PoSSible DATE * * . 9 tHErE Is no obJEctION OF RECOrD cONceRniNG thIs BEiNg A NEW GROUnd Of rejECTION. 10 sUBsEqUeNt tO tHe dECiSIOn of thE BoArD, a petiTIon foR RehEaring WAs fIlED In whiCh tHe sEpaRaTe NatUrE Of THe InvOlVeD INVENTIonS wAs pOiNteD OUt ANd dIScUssed. LaTER, and suBsequeNt tO oUR dECIsIon OF May 14, 1964 In In Re rObESon, 331 F.2D 610, 51 CcPA 1271, APpELLANtS fILEd A lETTeR of june 19, 1964, In WHIch tHe BoarD oF AppEALS wAS reQuEsteD TO conSIDeR thE dIsClaimeR, FiLED CoNCurReNtLY TherewitH, IN wHicH thEY dIsclAiMED: 11 * * the TErMinAl pORTion Of tHE TerM oF tHe Above IDENtIFIed ApPlICATion SeriAL No. 138,265 aS WoULd ExTend BEYONd OctoBer 2, 1979, tHE ExPiRATiOn dAtE oF u. S. PATent no. 3,056,814, WIth Respect To cLAims 1-12, aND As WOULD eXtend BeYonD MaRCh 19, 1980, tHE eXPiratiOn dAtE OF U. s. patENT no. 3,082,220, wiTH rEspEct tO cLaim 13. 12 aPpeLLAntS' LeTtEr oF JunE 19, 1964 reFerS tO Our ROBeson decIsiON AS bEInG "DIRecTLY IN pOInt" And arguEd: 13 * * * tHaT the aTTAChEd DiScLaIMeR ObvIAtes tHE BaSIs Of THe dOubLE PaTEntiNg rEJECTIoN oF cLaIMs 1-13 on aPpEAL, Over ThE CommOn aSSIGnEE'S PatenT NO. 3,056,814 AnD nO. 3,082,220. The dISclAIMEr PrEcLUdes ANy exTENsiON OF THE MonOPOLy sinCe It pROvIdes FoR THe exPIRaTIoN OF the aBOVe iDENTiFIED ApPlIcATION, if PAtEnteD, SIMUlTaneOUSly wIth PAtent Nos. 3,056,814 AND 3,082,220. 14 IN itS DEcisIon ON tHe PEtitION fOr ReCONSIDeRATIoN, tHe boarD CONSideREd THe ContEnTs oF The Letter of jUNE 19, 1964, And CrItIcized oNe of The sIGnaTURES AppeaRiNg On tHe DISClAIMER. iT tHeN StATED: 15 ASsumiNg ThAT thIS PAPER weRE A dISCLAiMEr oPERAtivE To DisCLAim The indIcaTed PoRTiONs Of a patEnT graNTed on THe INsTanT ApPlICatioNs, we COULD gIvE it No WeIGht IN ThE PResEnt ApPeAL bEcauSe it iS nOt apParent THAt IN rE robesOn, SupRA, or thE SUBseQuenT DeCisioN, in RE kaYe, 51 CcPa [1465, 332 f.2d 816] 141 uSPq 829, appLY to the siTuAtION WhERE A teRMInAl dISclaIMEr Is oFFered witH REsPeCt TO tHe COMmONlY Owned patEnT of a dIffeREnt iNventIVe eNtity. * * * 16 SubSEQuENtly APpElLANtS fiLED a nEw dIscLAiMEr tO oVeRcomE THe BoARD's crITiCIsm As To foRM WHICh waS ACCEPTeD AnD hAS been DULY reCoRded iN the UniTed sTAtes pATENT OFfIcE. bY OrdeR Of ThE COuRT upoN GRANtInG aPPellANTs MoTIon TO CoRReCt dIMInUtIOn OF ReCorD, wHiCH wAs NOT OBjECted To by THe SoLICiTOR foR thE u. S. PAtent OFfice, tHis NEW DisclaImeR wAS aDdeD to thE ReCorD. tHE sOLicIToR here DoEs NoT challenge THE SuffIcIEnCy of the nEW DiscLaIMEr NOR does HE aRgUe tHaT The EffECt OF THE tERmINAl DISCLaImeR on tHe rEjECTIoN IS NOt bEfOrE US. WE WIlL thErefOrE TurN To a COnsidERatION Of ThE sUbjecT MaTTEr DEFInEd iN tHe aPpEaLED ClAIMs And tHE pateNT CLaimS. 17 wE fiNd ThaT WE ARe HERE DeAliNG WItH DIFFErENT inVeNTiONS. AS POInTEd ouT in APpeLlAnTs' brIEF: 18 iT is APPArEnT thAt A SINGLe iNVENTion iS NOT iNVoLVeD. thE INVENTIons OF tHe iNvOLvED aPPLIcatION aNd tHOsE OF ThE rEfErENcE pATeNTS Are NOT IDeNtIcaL; tHey aRe DiFFEReNT AnD diStiNct INASMUCh as tHE INveNtIons DIFfEr iN The pResENce oF a CH2 GRoupIng at a speCIFIc POSItIOn In THE cOMPLEX stEroiD MoLeCUle. it Is Clear tHat thE ClaIms Of THE boweRS And orR APPLicaTION, wHICH WAs thE FIRST fiLEd aPPLIcatioN, DEfINE An INveNtion SePaRATE aND DIFFEReNT fROM ThOSe defiNeD iN tHe rEFeReNce paTENts OWNEd By THE same AssignEe. 19 aPpElLaNTS AlSO POinT OUt iN tHeir BRiEF ThaT "eAch INVeNTIOn WoulD bE PAtENTabLE abSEnT the oTHer," wHIcH iS noT DiSPUteD by tHe PATEnT OfFICe. The BrIeF tHen CONtInuEs: 20 it is cLEar tHat sePAraTE, DIStInCt ANd NONIdenTICAl InVENTIoNS ARE DeScRibed iN thE apPliCatIoN at baR AnD In tHe PAtEnTeD invENTiOnS. It is THerEfoRE cONtEnDed tHat A TeRMiNal DiSclAIMEr IS appRoPRIate IN tHe cAsE AT bAR tO OverCOme a DOuBLE PatENTiNg RejEcTION uNDER the HolDINg Of IN RE rOBeSON and iN Re KAYE. 21 As wE STAted In KayE, sUpRa, 332 f.2d AT 819, 51 CCPa AT 1468, In refEreNCE To RObEsoN, suPRA: 22 IN THat caSE WE hELD THAT wHere, AS HerE, tHE cLAiMs defINe sEPARAtE, albEit PatENTAbLY InDIstinCT, inVEntIOnS, the fIlINg oF A TErMinAL DisClaIMEr MaY OBViate a dOUBle patenTinG REjECTiOn. 23 thus, It SeEMS tO uS thAT the BoaRd's pOsiTIOn MUST StaNd OR FaLl on ThE ISsUe OF whETHER Our DeCIsiOns IN roBeSon, SuPrA, and kAYE, Supra, AS sTAted bY THE bOARD, "aPPLy tO The SITuaTIoN WheRe a TeRmInAL dISClaimER is OFferEd wItH ReSpECt TO The COmMonly Owned PaTENT OF a diFfEReNt INVeNtiVe EntIty." 24 It Is tRuE tHAt iN BOTH roBesON, Supra, ANd kayE, sUprA, tHe dOUBLE pAtenting RejECtIONs WhIcH we FOUnD tO BE oBViATeD bY ThE terMinal DIsClAiMEr WeRe PReDIcATed iN EACh cAsE ON The SAMe INveNtOrsHiP. howEvER, we Find thIS to bE a distiNCTioN WiTHout lEGAl sIgNIFiCaNcE In tHE PREsenT CONTeXt. 25 STATutory AuTHORiTY FOr THE terminAL dIsClAiMER HERE In issUE iS FouND in 35 u.s.C. § 253, THe SeCond parAGraph of WHICh proVIDEs: 26 IN LIKe manNER Any pAtenTeE oR ApPlicant may DISCLaim OR DEdIcATE tO tHE pUbLic The enTiRe TeRm, oR ANy tERMiNal pArT of ThE TeRm, Of THE PaTENT grANTeD oR tO be grANteD. 27 It IS to Be noteD tHaT tHe paRTies AuThorIzed bY thE StatUTE TO FiLe THE TErMinAl dIsClAIMeR arE "ANy PATeNTEE oR aPpLIcANt." IT seemS clEar tHaT ConGResS IntENdED THAt tHE rEmediES oF THIS SectIoN WErE alSo TO be AVAilABlE TO AssiGneeS iN vIeW of the EXpReSS prOVIsiON Of 35 U.S.c. § 100(D) ThaT: 28 (d) thE wOrD "PAtENTEE" INcLuDes noT onLY ThE PATENtEe To WHOm ThE paTENT wAs IsSuEd bUT ALSO tHe SucCeSsoRS in TiTle tO the pAtenTee. 29 thE StatUToRy prOVISIonS ThUS sUpPort APpELLAnTs' posItiON AnD ARE coNtRarY to The solICiTor'S aRgumeNtS. 30 ThE solicItOr ARgUes THaT tHe COMmoN	359 F.2d 886 Application ofAlbert BOWERS and James C. Orr. Patent Appeal No. 7584. United States Courtof Customsand Patent Appeals. May 12, 1966.Evelyn K. Merker, Leon Simon, Washington, D. C., for appellants. Clarence W. Moore, Washington, D. C. (Jack E. Armore,Washington, D. C., of counsel),forCommissionerof Patents. Before RICH, Acting Chief, MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.* SMITH,Judge. 1 Syntex Corporation isthe common assignee of the appealedapplication1and the 2 patents2 relied uponfor therejection. Different joint inventors are named in the application and in the patents. Albert Bowers, oneof thenominal appellants here, is one of the joint inventors in theappealed application and in the 2 above named patents. The appealed application issenior in filing dateto the applications upon which thepatents were issued.2 The Board of Appealsin its decision of March18, 1964 affirmed3 the rejectionof appealed claims 1 to 12 of appellants' application as "unpatentable over" claim 1 of the Bowers and Edwards patent and affirmed therejection of appealed claim 13 as being "unpatentable over" claim 16 of the Bowers and Berkoz patent. 3 Closely related subjectmatteris disclosed in the patents and the applicationon appeal. The steroid compounds here claimed differ from the compounds claimed in the indicated patents by the presence in the steroid structureof a 2-methyl group instead of a hydrogenatom. 4 It was the examiner's position that the 2-methyl compounds of the appealedclaims are so closely related to the hydrogen containing, or 2-desmethyl, compounds of the indicated patent claims as tobe, inthe wordsofthe Board of Appeals, "obvious therefromto those skilledinthe art." 5 The statutory basis for the rejection is not clear from the record. While using certain of thelanguage of 35 U.S.C. § 103, in affirming the examiner's rejection,4the boarddoes not explainhow the patents, issuing on applications filed later thanthefiling date of the appealed application, can be considered as priorart against the invention here claimed. Earlier filed applications of "another" describing the inventionclaimed in a later filed application are prior artunder 35 U.S.C.§ 102(e) and as such are availablefor consideration in a 35 U.S.C. § 103 "obviousness" rejection Hazeltine Research, Inc. v. Brenner,382 U.S.252, 86 S.Ct. 335,15 L.Ed.2d 304.However, the rule does not warrant a rejection under35 U.S.C. §§ 102 or 103 on patents that issued on later filed applications. Such referencesare clearlyexcluded by the preciselanguage of sections 102(e) and 103. 6 The opinion of the board seeks to justify the rejection in its statement: 7 * * * The Examiner rules that, in viewof this close relationship and the obviousness of the claimed compounds from the patented claims, appellants are not entitled to receive a patent on the basis of theappealed claims, sinceappellants' assignee hadreceivedpatent protection on essentially the same inventionsin the Bowers and Edwards and the Bowers and Berkoz patents. * ** * * * * * * 8 It is unfortunate that the issue of"double patenting" was not raised at the earliest possible date * * . 9 There is no objection of record concerning this being a new ground of rejection. 10 Subsequent to the decision of the board,a petition forrehearing was filed in which the separate natureof the involved inventionswas pointed out and discussed. Later, andsubsequent to our decision ofMay 14, 1964 in In reRobeson, 331 F.2d 610, 51CCPA1271,appellantsfiled a letter of June19,1964, inwhichthe Board of Appeals was requested to consider thedisclaimer, filed concurrently therewith, in which they disclaimed: 11 * * the terminal portion of the term of the above identified application Serial No. 138,265 as would extend beyond October 2, 1979, the expiration date of U. S. Patent No. 3,056,814,with respectto Claims 1-12, and aswould extend beyond March 19, 1980, the expiration date of U. S. Patent No. 3,082,220, with respect toClaim 13. 12 Appellants'letter of June 19,1964 refers to our Robeson decision as being "directly in point"and argued: 13 * * * that the attached disclaimer obviates the basis of the double patentingrejection of claims 1-13 on appeal,over the common assignee's Patent No. 3,056,814 and No. 3,082,220. The disclaimer precludes any extensionof the monopolysinceit provides for the expiration of the above identified application,if patented, simultaneously with Patent Nos.3,056,814 and 3,082,220. 14 In its decision on thepetition for reconsideration, the board considered the contents of the letterof June 19, 1964, and criticized oneof the signatures appearing on the disclaimer.It then stated:15 Assuming that this paper were a disclaimeroperative to disclaim the indicated portionsof a patent granted on the instant applications,we could give it no weight in the presentappealbecause it is not apparent that In re Robeson, supra, or the subsequent decision, In re Kaye, 51 CCPA [1465,332 F.2d 816] 141 USPQ 829, apply to the situation where a terminaldisclaimer is offered with respect to the commonlyowned patent of adifferent inventiveentity. * ** 16 Subsequently appellantsfiled a newdisclaimer to overcome the board's criticismas to form which wasaccepted and hasbeen duly recorded in the United StatesPatent Office. By order of the court upon granting appellants motion to correct diminution of record, which was not objected to by the Solicitorfor the U.S. Patent Office,thisnew disclaimer was added to therecord. The Solicitor here does not challenge the sufficiency ofthe new disclaimernor doeshe argue that the effect of the terminaldisclaimer on the rejection is not before us. We will therefore turn to a consideration of the subject matter defined in the appealed claims and the patentclaims. 17 We find that we are here dealingwith differentinventions. As pointed out inappellants' brief: 18 Itis apparentthat a single invention is notinvolved. The inventions of the involved application andthose of the referencepatents are not identical; they aredifferent and distinct inasmuch as the inventions differ in the presence of a CH2 grouping at a specific position in the complexsteroid molecule. It is clear that the claims of the Bowers andOrr application,which was the first filed application, define an invention separateand different from thosedefinedinthe reference patents owned by the same assignee. 19 Appellants also point out in their brief that "Each inventionwould be patentable absent the other," which is not disputed by the Patent Office. The briefthen continues:20 It is clear that separate, distinct and nonidenticalinventions are described in the application at bar and in the patented inventions.It istherefore contended that a terminal disclaimer isappropriate in the caseat bar to overcome a doublepatenting rejection under the holdingof In re Robeson andIn re Kaye.21 As we stated in Kaye, supra,332 F.2d at 819,51CCPA at 1468, in reference to Robeson,supra: 22 In that casewe held that where, as here, the claims define separate, albeit patentably indistinct, inventions, the filing of a terminal disclaimer may obviate a double patenting rejection. 23 Thus, it seems to us that the board's position must standor fallon the issue of whetherour decisions in Robeson, supra, and Kaye, supra, as stated bythe board, "apply to the situation where a terminal disclaimer isoffered with respect to the commonly owned patent of a different inventive entity." 24 It is true that inboth Robeson, supra, and Kaye, supra, the doublepatenting rejections which we found to be obviated by the terminaldisclaimer were predicated in each case on the same inventorship. However, we find this to be a distinctionwithout legal significance in the present context. 25Statutory authority for the terminal disclaimer here in issue isfound in 35 U.S.C. § 253, the second paragraph of which provides: 26 In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted. 27 It istobe noted that the parties authorized by the statuteto file the terminaldisclaimer are "any patenteeor applicant."It seems clear that Congress intendedthat the remediesof this section were also to beavailableto assignees in view of the express provision of 35U.S.C. § 100(d)that: 28 (d) The word "patentee" includesnot only the patentee to whom the patentwas issuedbut also the successors in title to the patentee. 29 The statutory provisions thus support appellants'position andare contrary to the solicitor's arguments. 30The solicitor argues thatthe common	359 F.2d _886_ Application of Albert _BOWERS_ and James C. Orr. Patent Appeal No. 7584. _United_ States Court of _Customs_ _and_ _Patent_ Appeals. _May_ _12,_ 1966. _Evelyn_ K. Merker, Leon _Simon,_ Washington, D. C., _for_ _appellants._ Clarence W. Moore, _Washington,_ D. _C._ (Jack E. _Armore,_ Washington, D. _C.,_ of _counsel),_ for Commissioner of Patents. Before RICH, _Acting_ Chief, _MARTIN,_ SMITH, _and_ ALMOND, Judges, _and_ Judge WILLIAM H. KIRKPATRICK.* _SMITH,_ _Judge._ 1 Syntex Corporation is the _common_ assignee of the appealed application1 and the 2 _patents2_ relied upon for _the_ rejection. Different joint _inventors_ are named in _the_ application and in _the_ _patents._ Albert Bowers, one of the nominal appellants here, is one of the joint inventors in _the_ appealed application and in the 2 above _named_ patents. The appealed application is senior _in_ filing date to the applications upon which _the_ patents _were_ issued. 2 _The_ Board of Appeals in its decision of March 18, 1964 affirmed3 the rejection of _appealed_ claims 1 to _12_ of appellants' application as "unpatentable over" claim 1 of the Bowers and Edwards patent and _affirmed_ the rejection of appealed claim 13 as being "unpatentable over" claim 16 of the Bowers and Berkoz patent. 3 Closely related subject matter _is_ disclosed in the patents and the application on appeal. The steroid compounds here claimed differ from the compounds claimed _in_ the _indicated_ patents by the presence in _the_ _steroid_ structure _of_ _a_ 2-methyl group instead _of_ a hydrogen atom. 4 It was the examiner's _position_ that _the_ _2-methyl_ _compounds_ of _the_ appealed claims are _so_ _closely_ related to _the_ _hydrogen_ containing, or 2-desmethyl, compounds of the indicated patent claims _as_ to _be,_ in the _words_ _of_ the Board of Appeals, "obvious therefrom to those _skilled_ in the art." _5_ The statutory _basis_ for the rejection is not clear from the _record._ _While_ using certain of the language of _35_ U.S.C. § 103, _in_ affirming the examiner's _rejection,4_ the _board_ does not explain how the patents, issuing _on_ applications filed _later_ than the filing _date_ of the _appealed_ application, can be considered as prior art against the _invention_ here claimed. Earlier filed applications _of_ _"another"_ describing the invention _claimed_ in a _later_ filed application are prior art _under_ 35 U.S.C. _§_ 102(e) _and_ as such are available for consideration _in_ _a_ 35 U.S.C. _§_ 103 "obviousness" rejection Hazeltine Research, Inc. v. _Brenner,_ 382 _U.S._ 252, 86 _S.Ct._ 335, _15_ L.Ed.2d _304._ However, the rule does not warrant a _rejection_ under 35 _U.S.C._ §§ _102_ or 103 on patents that issued _on_ _later_ filed applications. Such references are clearly excluded by the precise _language_ of sections 102(e) _and_ 103. 6 _The_ opinion of the board seeks _to_ justify the rejection in its statement: 7 * * * _The_ Examiner rules that, in view of this close relationship and the _obviousness_ of the claimed compounds from _the_ patented claims, _appellants_ are not entitled to receive a patent on _the_ _basis_ of _the_ appealed _claims,_ since appellants' assignee had received _patent_ protection on _essentially_ the same inventions in the Bowers and Edwards and _the_ Bowers and Berkoz patents. * * * * * * * * * 8 It is _unfortunate_ _that_ _the_ issue of "double patenting" was not raised at _the_ earliest possible date * * . 9 There is no objection of record concerning this being a new ground of rejection. _10_ Subsequent to _the_ decision of the board, _a_ petition for rehearing was filed in which the separate nature of the involved inventions _was_ pointed out and _discussed._ Later, and subsequent to our _decision_ of May 14, 1964 in _In_ _re_ _Robeson,_ _331_ F.2d 610, 51 CCPA 1271, appellants filed _a_ letter of June _19,_ 1964, in which _the_ Board of Appeals was requested to _consider_ the _disclaimer,_ filed concurrently therewith, in which they disclaimed: _11_ __ the terminal portion of the _term_ _of_ the above identified application Serial No. 138,265 _as_ _would_ extend beyond October 2, 1979, the expiration _date_ of U. S. Patent No. 3,056,814, with respect to Claims 1-12, and as would extend beyond March 19, 1980, the _expiration_ date of U. _S._ Patent No. _3,082,220,_ with respect to _Claim_ 13. 12 Appellants' letter of _June_ _19,_ 1964 refers to our Robeson decision as being "directly _in_ point" _and_ argued: 13 * * * that the attached _disclaimer_ obviates the basis of the double patenting rejection of claims 1-13 on appeal, over the common assignee's Patent No. 3,056,814 and No. 3,082,220. The disclaimer _precludes_ any extension of _the_ monopoly since it provides for the expiration _of_ _the_ above _identified_ application, if patented, simultaneously with Patent Nos. 3,056,814 and 3,082,220. 14 In its decision on the petition for _reconsideration,_ the board considered _the_ contents _of_ the letter of June _19,_ 1964, _and_ criticized one of the _signatures_ appearing on the disclaimer. It then stated: 15 Assuming _that_ this paper were a disclaimer operative _to_ disclaim the indicated _portions_ _of_ a patent granted on the instant applications, we could give it _no_ weight in _the_ _present_ appeal because it is not _apparent_ _that_ In _re_ Robeson, supra, or the subsequent _decision,_ In re Kaye, _51_ CCPA [1465, 332 F.2d 816] 141 _USPQ_ 829, apply _to_ the situation where a terminal _disclaimer_ is offered with respect to _the_ commonly _owned_ patent of a different inventive entity. __ * 16 Subsequently _appellants_ filed _a_ new _disclaimer_ to _overcome_ the board's criticism as _to_ form which was accepted and has been duly recorded in _the_ _United_ States Patent Office. _By_ order of the _court_ upon granting appellants motion to correct diminution of record, which was not _objected_ to by the Solicitor _for_ _the_ U. S. Patent Office, _this_ new disclaimer was added to the record. The Solicitor here does not challenge the sufficiency of the new _disclaimer_ nor does he argue _that_ _the_ effect of the terminal disclaimer on _the_ _rejection_ is not before us. We _will_ _therefore_ turn to a consideration of the _subject_ matter defined in the appealed claims and the patent _claims._ 17 _We_ find that we are here dealing _with_ different inventions. As pointed _out_ in appellants' brief: 18 It is apparent that a single invention is not involved. The _inventions_ _of_ the involved application and those of the _reference_ patents are _not_ identical; _they_ are different and distinct _inasmuch_ _as_ the inventions differ in the presence of a CH2 grouping at _a_ _specific_ position in the complex steroid molecule. It is _clear_ _that_ the claims of the Bowers and _Orr_ application, which _was_ _the_ first _filed_ _application,_ define _an_ invention separate and different from those defined in the reference patents owned by the same assignee. 19 Appellants also point _out_ in their _brief_ _that_ "Each invention would be patentable _absent_ the other," which is not disputed by the _Patent_ Office. The brief then continues: 20 It _is_ clear that separate, distinct _and_ _nonidentical_ inventions are described _in_ the application at bar and in the patented _inventions._ It is therefore _contended_ that _a_ terminal disclaimer is appropriate in _the_ case at _bar_ to overcome _a_ _double_ _patenting_ _rejection_ under the holding of In re Robeson _and_ In _re_ Kaye. 21 As _we_ stated _in_ Kaye, supra, 332 _F.2d_ at 819, 51 CCPA at 1468, _in_ _reference_ to _Robeson,_ supra: 22 In that case _we_ held that where, as here, the claims define separate, albeit patentably indistinct, _inventions,_ the _filing_ of a terminal disclaimer may obviate a double patenting rejection. 23 Thus, _it_ seems _to_ us that the board's position must stand _or_ _fall_ on the issue of whether our decisions in Robeson, supra, and Kaye, supra, _as_ _stated_ by the board, "apply to the situation where a terminal _disclaimer_ is offered with respect to the commonly owned patent of _a_ different inventive entity." 24 It is true that in both Robeson, supra, and Kaye, supra, the double patenting rejections which we found to _be_ _obviated_ by _the_ terminal disclaimer were predicated in each case on the same _inventorship._ However, we find this to be a distinction without legal significance in _the_ _present_ context. 25 Statutory authority for the terminal disclaimer here in issue is found in _35_ U.S.C. _§_ 253, _the_ second paragraph of _which_ _provides:_ _26_ _In_ like manner _any_ patentee or applicant may disclaim or dedicate to the public the entire _term,_ or _any_ _terminal_ part of the _term,_ of _the_ patent granted or to _be_ _granted._ 27 It _is_ _to_ _be_ noted that the _parties_ _authorized_ by the statute to file the terminal disclaimer are "any patentee or applicant." _It_ seems clear that Congress intended that the remedies of this _section_ were _also_ to be available to _assignees_ in view of the express _provision_ of 35 U.S.C. § 100(d) _that:_ 28 (d) _The_ _word_ "patentee" includes not only the patentee to whom the patent was issued _but_ _also_ the successors in title to _the_ patentee. 29 _The_ statutory _provisions_ _thus_ support appellants' position and _are_ contrary to the solicitor's arguments. _30_ The solicitor argues that the common
125 Ariz. 53 (1980) 607 P.2d 372 AMERICAN CONTINENTAL LIFE INSURANCE COMPANY, an Arizona Corporation, Appellant and Cross-Appellee, v. RANIER CONSTRUCTION CO., INC., Appellee and Cross-Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6, 1980. Rehearing Denied March 11, 1980. 54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, Dwayne L. Burton, Michael Green, Phoenix, for appellant and cross-appellee. Thomas W. Murphy, Pago Pago, American Samoa, for appellee and cross-appellant. GORDON, Justice: This appeal involves a suit for breach of a construction contract between American Continental Life Insurance Co. (American) and Ranier Construction Co., Inc. (Ranier). After trial by jury, a verdict was returned for Ranier in the amount of $130,000 and for American in the amount of $10,000 on its counterclaim. The trial judge determined that neither party was entitled to recover attorney's fees from the other. Both parties appeal. Having jurisdiction pursuant to 17A A.R.S., Rules of Civil Appellate Procedure, Rule 19(e), we reverse the judgment in favor of Ranier and the court's disposition of attorney's fees. American contracted with Ranier to construct a building for $517,286.30. To date, American has paid Ranier $457,247.47. The contract required American to make monthly progress payments for 90% of the work completed each month upon the issuance by the architect of a certificate for payment. American refused to make the final payment, consisting of the 10% retained each month and the amount due for work completed after the date of the last progress payment. It claimed that Ranier had breached the procedural requirements of the contract and had failed to construct the building in a workmanlike manner and in accordance with the plans and specifications. Ranier subsequently instituted suit for breach of the contract, to recover funds retained under the contract and damages for delays and lost profits. American counterclaimed for breach of contract and negligence, to recover damages for faulty construction and delays. The jury returned a single verdict for Ranier in the amount of $130,000 and a single verdict for American in the amount of $10,000. American appeals the verdict in favor of Ranier. Ranier cross appeals the trial court's refusal to award attorney's fees to Ranier as the prevailing party.[1] At the close of Ranier's case and again at the close of all the evidence, American moved for a directed verdict, which was denied. One of the grounds urged by American was that Ranier had failed to meet a condition precedent to the right to final payment, because it had failed to procure from the architect a final certificate for payment as provided in the contract. 55 American renews this argument on appeal, contending that the court erred in denying its motion for a directed verdict. Article 7 of the contract provides: "Final payment constituting the entire unpaid balance of the Contract Sum shall be paid by the Owner to the Contractor within thirty (30) days after Substantial Completion of the Work * * * provided the work has then been completed * * * and a final Certificate for Payment has been issued by the Architect." Issuance of the final certificate for payment is governed by paragraph 9.7.2 of the General Conditions of the contract: "Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate, is due and payable." The architect issued a certificate of substantial completion,[2] but Ranier admits that a final certificate for payment, as provided for in the contract, was never applied for or obtained. American asserts, and it is undisputed by Ranier, that it was Ranier's responsibility to procure issuance of the certificate. Ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from the beginning, both parties deviated from the formal requirements of the contract in other respects. Ranier cites as examples the fact that change orders, although done at the owner's request, were not signed by the owner; that on occasion the owner even ordered changes to be made without execution of a formal change order; that extensions of time were granted both formally and informally; and that the owner, although in agreement, also failed to sign extensions of time. The trial court believed that there was sufficient evidence to support a submission to the jury as to whether strict compliance had been waived. We disagree. Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment. See, e.g., City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411 (1957). Waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right. Occidental Life Insurance Co. v. Jacobson, 15 Ariz. 242, 137 P. 869 (1914); see Bolo Corp. v. Homes and Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d 788 (1970). The waiver of one right under a contract does not necessarily waive other rights under the contract. See O'Malley v. Cummings, 86 Ill. App.2d 446, 229 N.E.2d 878 (1967). Thus, even if American did waive other rights under the contract relating to change orders or extensions of time, that conduct does not manifest an intent to waive any right relating to payment for 56 work. See Practical Construction Co. v. Granite City Housing Authority, 416 F.2d 540 (7th Cir.1969). Ranier does not indicate any evidence, nor does any evidence appear in the record, that the parties ever disregarded any of the terms of the contract relating to payments. Accordingly, we find no waiver.[3] Ranier also argues, alternatively, that certain acts by American[4] prevented fulfillment of the condition precedent, thereby excusing performance. We fail to perceive how these acts prevented Ranier from seeking a final certificate of payment from the architect. Similarly, we reject Ranier's assertion that seeking a final certificate of payment would have been a futile act, because American had already demonstrated its unwillingness to co-operate by refusing to sign the certificate of substantial completion. The failure of American to sign the certificate of substantial completion has nothing to do with Ranier's obligation under the contract to procure the final certificate of payment in order to be in a posture to claim that payment from American is due. Moreover, even if Ranier is correct in assuming that American would not have made the final payment had Ranier sought and received the final certificate of payment from the architect, Ranier is not excused from the contractually-imposed duty of acquiring the certificate. Without it, we have no way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and the application for final payment[5] had been completed and that the contract was, thus, fully performed. At the trial, in fact, the architect testified that after he issued the certificate of substantial completion, the building was not complete, and items on the "punch" list remained unfinished.[6] We agree with American that the final certificate for payment is not "procedural chaff." It is a major substantive right, which "serves a vital interest, in that it induces the contractor to render a performance that conforms in fact to plans and specifications, spurs him to stay with the job and, upon completion, furnishes the main incentive to make conforming corrections." Loyal Erectors, Inc. v. Hamilton & Son, Inc., 312 A.2d 748, 755 (Me. 1973). The trial court erred in failing to direct a verdict in American's favor because of Ranier's 57 non-compliance with the condition precedent of obtaining a final certificate of payment. American challenges the jury's award to Ranier on several other grounds, which we need not consider, because we reverse on the basis of the court's denial of American's motion for a directed verdict. We next address the issue of attorney's fees raised by Ranier. The contract between American and Ranier provides for attorney's fees in the following language: "In the event of litigation between the parties hereto arising out of this Contract or the performance of the Work hereunder, the prevailing party shall be entitled to recover reasonable attorney's fees in addition to any other damages allowed by law." Supplementary General Conditions, Paragraph 15.3. The trial judge would not allow either party to recover attorney's fees from the other, because he believed that both parties had breached their agreements, and he considered this finding implicit in the jury's verdicts. Because of our decision today reversing the judgment in favor of Ranier, American is clearly the prevailing party and is entitled to recover attorney's fees by the above express provision of the contract. The judgment in favor of Ranier is reversed and remanded to the trial court with directions to enter judgment in American's favor upon Ranier's complaint and to award attorney's fees to American. HOLOH	125 ariz. 53 ( 1980 ) 607 p. 2d 372 american continental life insurance company, an arizona corporation, appellant and cross - appellee, v. ranier construction co., inc., appellee and cross - appellant. no. 13950. supreme court of arizona, in banc. october 6, 1980. rehearing denied march 5, 1980. * 54 fennemore, craig, von ammon & udall by silas h. shultz, david l. burton, michael green, phoenix, for appellant and cross - appellee. thomas w. murphy, pago pago, american samoa, for appellee and cross - appellant. gordon, justice : this appeal triggered a suit for breach of a construction contract between american continental life insurance co. ( american ) and ranier construction co., inc. ( ranier ). after trial by jury, a verdict was returned for ranier in the amount of $ 130, 000 and for american in the amount of $ 10, 000 on its counterclaim. the trial judge determined that neither party was entitled to recover attorney ' s fees from the other. both parties appeal. having jurisdiction pursuant to 17a a. r. b., rules of civil appellate procedure, rule 14 ( e ), we reverse the judgment in favor of ranier and the court ' s disposition of attorney ' s fees. american contracted with ranier to construct a building for $ 517, 286. 30. to date, american has paid ranier $ 457, 247. 47. the contract required american to make monthly progress payments for 90 % of the work completed each year upon the payment by the architect of a certificate for payment. american refused to make the final payment, instead of the 10 % retained each month and the amount due for work completed after the date of the last progress payment. it claimed that ranier had breached the procedural requirements of the contract and had failed to construct the building at a workmanlike manner and in accordance with the plans and specifications. ranier subsequently instituted suit for breach of the contract, to recover funds retained under the contract and damages for delays and lost profits. american counterclaimed for breach of contract and negligence, to recover damages for faulty construction and delays. the jury returned a single verdict for ranier in the amount of $ 130, 000 and a single verdict for american in the amount of $ 10, 000 . american appeals the verdict in favor of ranier. ranier cross appeals the trial court ' s refusal to award attorney ' s fees to ranier as the prevailing party. [ 1 ] at the close of ranier ' s case and again at the close of all the evidence, american moved for a directed verdict, which was denied. one of the grounds urged by american was that ranier had failed to meet a condition precedent to the right to final payment, because it had failed to procure from the architect a final certificate for payment as provided in the contract. * 55 american renews this argument on appeal, contending that the court erred in denying its motion for a directed verdict. article 7 of the contract provides : " final payment constituting the entire unpaid balance of the contract sum shall be paid by the owner to the contractor within thirty ( 30 ) days after substantial completion of the work * * * provided the work has then been completed * * * and a final certificate for payment has been issued by the architect. " issuance of the final certificate for payment is governed by paragraph 9. 7. 2 of the general conditions of the contract : " upon receipt of written notice that the work is ready for final inspection and acceptance and upon receipt of a final application for payment, the architect will promptly make such inspection and, when he finds the work acceptable under the contract documents and the contract fully performed, he will promptly issue a final certificate for payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the work has been completed in accordance with the terms and conditions of the contract documents and that the entire balance found to be due the contractor, and noted in said final certificate, is due and payable. " the architect issued a certificate of substantial completion, [ 2 ] but ranier admits that a final certificate for payment, as provided for in the contract, was never applied for or obtained. american asserts, and it is undisputed by ranier, that it was ranier ' s responsibility to procure issuance of the certificate. ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from the beginning, both parties deviated from the formal requirements of the contract in other respects. ranier cites as examples the fact that change orders, although done at the owner ' s request, were not signed by the owner ; that on occasion the owner even ordered changes to be made without execution of a formal change order ; that extensions of time were granted both formally and informally ; and that the owner, although in agreement, also failed to sign extensions of time. the trial court believed that there was sufficient evidence to support a submission to the jury as to whether strict compliance had been waived. we disagree. waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment. see, e. g., city of tucson v. koerber, 82 ariz. 347, 313 p. 2d 411 ( 1957 ). waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right. occidental life insurance co. v. jacobson, 15 ariz. 242, 137 p. 869 ( 1914 ) ; see bolo corp. v. homes and son construction co., inc., 105 ariz. 343, 464 p. 2d 788 ( 1970 ). the waiver of one right under a contract does not necessarily waive other rights under the contract. see o ' malley v. cummings, 86 ill. app. 2d 446, 229 n. e. 2d 878 ( 1967 ). thus, even if american did waive other rights under the contract relating to change orders or extensions of time, that conduct does not manifest an intent to waive any right relating to payment for * 56 work. see practical construction co. v. granite city housing authority, 416 f. 2d 540 ( 7th cir. 1969 ). ranier does not indicate any evidence, nor does any evidence appear in the record, that the parties ever disregarded any of the terms of the contract relating to payments. accordingly, we find no waiver. [ 3 ] ranier also argues, alternatively, that certain acts by american [ 4 ] prevented fulfillment of the condition precedent, thereby excusing performance. we fail to perceive how these acts prevented ranier from seeking a final certificate of payment from the architect. similarly, we reject ranier ' s assertion that seeking a final certificate of payment would have been a futile act, because american had already demonstrated its unwillingness to co - operate by refusing to sign the certificate of substantial completion. the failure of american to sign the certificate of substantial completion has nothing to do with ranier ' s obligation under the contract to procure the final certificate of payment in order to be in a posture to claim that payment from american is due. moreover, even if ranier is correct in assuming that american would not have made the final payment had ranier sought and received the final certificate of payment from the architect, ranier is not excused from the contractually - imposed duty of acquiring the certificate. without it, we have no way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and the application for final payment [ 5 ] had been completed and that the contract was, thus, fully performed. at the trial, in fact, the architect testified that after he issued the certificate of substantial completion, the building was not complete, and items on the " punch " list remained unfinished. [ 6 ] we agree with american that the final certificate for payment is not " procedural chaff. " it is a major substantive right, which " serves a vital interest, in that it induces the contractor to render a performance that conforms in fact to plans and specifications, spurs him to stay with the job and, upon completion, furnishes the main incentive to make conforming corrections. " loyal erectors, inc. v. hamilton & son, inc., 312 a. 2d 748, 755 ( me. 1973 ). the trial court erred in failing to direct a verdict in american ' s favor because of ranier ' s * 57 non - compliance with the condition precedent of obtaining a final certificate of payment. american challenges the jury ' s award to ranier on several other grounds, which we need not consider, because we reverse on the basis of the court ' s denial of american ' s motion for a directed verdict. we next address the issue of attorney ' s fees raised by ranier. the contract between american and ranier provides for attorney ' s fees in the following language : " in the event of litigation between the parties hereto arising out of this contract or the performance of the work hereunder, the prevailing party shall be entitled to recover reasonable attorney ' s fees in addition to any other damages allowed by law. " supplementary general conditions, paragraph 15. 3. the trial judge would not allow either party to recover attorney ' s fees from the other, because he believed that both parties had breached their agreements, and he considered this finding implicit in the jury ' s verdicts. because of our decision today reversing the judgment in favor of ranier, american is clearly the prevailing party and is entitled to recover attorney ' s fees by the above express provision of the contract. the judgment in favor of ranier is reversed and remanded to the trial court with directions to enter judgment in american ' s favor upon ranier ' s complaint and to award attorney ' s fees to american. holoh	125 Ariz. 53 (1980) 607 P. 2d 372 AMERICAN CONTINENTAL LIFE INSURANCE COMPANY, an Arizona Corporation, Appellant and Cross - Appellee, v. RANIER CONSTRUCTION CO. , INC. , Appellee and Cross - Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6, 1980. Rehearing Denied March 11, 1980. * 54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, Dwayne L. Burton, Michael Green, Phoenix, for appellant and cross - appellee. Hgomas W. Murphy, Pago Pago, American Samoa, for appellee and cross - appellant. GORDON, Justice: This appeal involves a suit for breach of a construction contract between American Continental Life Insurance Co. (American) and Ranier Construction Co. , Inc. (Ranier ). After trial by jury, a verdict was returned for Ranier in the amount of $ 130, 000 and for American in the amount of $ 10, 000 on its counterclaim. The trial judge determined that neither party was entitled to recover attorney ' s beeZ from the other. Both parties appeal. Having jurisdiction pursuant to 17A A. R. S. , Rules of Civil Appellate Procedure, Rule 19 (e ), we reverse the judgment in favor of Ranier and the court ' s disposition of attorney ' s fees. American contracted with Ranier to construct a building for $ 517, 286. 30. To date, American has paid Ranier $ 457, 247. 47. The contract required American to make monthly progress payments for 90% of the work completed each month upon the issuance by the architect of a certificate for payment. American refused to make the final payment, consisting of the 10% retained each month and the amount due for work completed after the date of the last progress payment. It claimed that Ranier had breached the procedural requirements of the contract and had failed to construct the building in a workmanlike manner and in accordance with the plans and specifications. Ranier subsequently instituted suit for greadh of the contract, to recover funds retained under the contract and damages for delays and lost profits. American counterclaimed for breach of contract and negligence, to recover damages for faulty construction and delays. The jury returned a single verdict for Ranier in the amount of $ 130, 000 and a single verdict for American in the amo6Gt of $ 10, 000. American appeals the verdict in favor of Ranier. Ranier cross appeals the trial court ' s refusal to award attorney ' s fees to Ranier as the prevailing party. [1] At the close of Ranier ' s case and again at the close of all the evidence, American moved for a directed verdict, which was denied. One of the grounds urged by American was that Ranier had failed to meet a condition precedent to the right to final payment, because it had failed to procure from the architect a final certificate for payment as provided in the contract. * 55 American renews this argument on appeal, DKntending that the court erred in denying its motion for a directed verdict. Article 7 of the contract provides: " Final payment constituting the entire unpaid balance of the Contract Sum shall be paid by the Owner to the Contractor within thirty (30) days after Substantial Completion of the Work * * * provided the work has then been completed * * * and a final Certificate for Payment has been issued by the Architect. " Issuance of the final certificate for payment is governed by paragraph 9. 7. 2 of the General Conditions of the contract: " Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate, is due and payable. " The architect iscu3d a certificate of suhstaMtial completion, [2] but Ranier admits that a final certificate for payment, as provided for in the contract, was never applied for or obtained. American asserts, and it is undisputed by Ranier, that it was Ranier ' s responsibility to procure issuance of the certificate. Ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from the beginning, both parties deviated from the formal requirements of the contract in other respects. Ranier cites as examples the fact that change orders, although done at the owner ' s request, were not signed by the owner; that on occasion the owner even ordered changes to be made without execution of a formal change order; that extensions of time were granted both formally and informally; and that the owner, although in agreement, also failed to sign extensions of time. The trial court believed that there was sufficient evidence to support a submission to the jury as to whether strict compliance had been waived. We disagree. Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment. See, e. g. , City of Tucson v. Koerber, 82 Ariz. 347, 313 P. 2d 411 (1957 ). Waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right. Occidental Life Insurance Co. v. Jacobson, 15 Ariz. 242, 137 P. 869 (1914 ); see Bolo Corp. v. Homes and Son Construction Co. , Inc. , 105 Ariz. 343, 464 P. 2d 788 (1970 ). The waiver of one right under a contract does not necessarily waive other rights under the contract. See O ' Malley v. Cummings, 86 Ill. App. 2d 446, 229 N. E. 2d 878 (1967 ). Thus, even if American did waive other rights under the contract relating to change orders or extensions of time, that conduct does not manifest an intent to waive any right relating to payment for * 56 work. See Practical Construction Co. v. Granite City Housing Authority, 416 F. 2d 540 (7th Cir. 1969 ). Ranier does not indicate any evidence, nor does any evidence appear in the record, that the parties ever disregarded any of the terms of the contract relating to payments. Accordingly, we find no waiver. [3] Ranier also argues, alternatively, that certain acts by American [4] prevented fulfillment of the condition precedent, thereby excusing performance. We fail to perceive how these acts prevented Ranier from seeking a final certificate of payment from the architect. Similarly, we reject Ranier ' s assertion that seeking a final certificate of payment would have been a futile act, because American had already demonstrated its unwillingness to co - operate by refusing to sign the certificate of substantial completion. The failure of American to sign the certificate of substantial completion has nothing to do with Ranier ' s obligation under the contract to procure the final certificate of payment in order to be in a posture to claim that payment from American is due. Moreover, even if Ranier is correct in assuming that American would not have made the final payment had Ranier sought and received the final certificate of payment from the architect, Ranier is not excused from the contractually - imposed duty of acquiring the certificate. Without it, we have no way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and the application for final payment [5] had been completed and that the contract was, thus, fully performed. At the trial, in fact, the architect testified that after he issued the certificate of substantial completion, the building was not complete, and items on the " punch " list remained unfinished. [6] We agree with American that the final certificate for payment is not " procedural chaff. " It is a major substantive right, which " weGves a vital interest, in that it induces the contractor to render a performance that conforms in fact to plans and specifications, spurs him to stay with the job and, upon completion, furnishes the main incentive to make conforming corrections. " Loyal Erectors, Inc. v. Hamilton & Son, Inc. , 312 A. 2d 748, 755 (Me. 1973 ). The trial court erred in failing to direct a verdict in American ' s favor because of Ranier ' s * 57 non - compliance with the condition precedent of obtaining a final certificate of payment. American challenges the jury ' s award to Ranier on several oghet grounds, which we need not consider, because we reverse on the basis of the court ' s denial of American ' s motion for a directed verdict. We next address the issue of attorney ' s fees raised by Ranier. The contract between American and Ranier provides for attorney ' s fees in the following language: " In the event of litigation between the parties hereto arising out of this Contract or the performance of the Work hereunder, the prevailing party shall be entitled to recover reasonable attorney ' s fees in addition to any other damages allowed by law. " Supplementary General Conditions, Paragraph 15. 3. The trial judge would not allow either party to recover attorney ' s fees from the other, because he believed that both parties had breached their agreements, and he considered this finding implicit in the jury ' s verdicts. Because of our decision today reversing the judgment in favor of Rsnie4, American is clearly the prevailing party and is entitled to recover attorney ' s fees by the above express provision of the contract. The judgment in favor of Ranier is reversed and remanded to the trial court with directions to enter judgment in American ' s favor upon Ranier ' s complaint and to award attorney ' s fees to American. HOLOH	125 Ariz. 53 (1980) 607 P.2d 372 AMERICAN CONTINENTAL LIFE INSURANCE COMPANY, an Arizona Appellant Cross-Appellee, v. RANIER CO., INC., Appellee and Cross-Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6, 1980. Rehearing Denied March 1980. 54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, Dwayne Burton, Michael Green, Phoenix, for appellant and cross-appellee. Thomas W. Murphy, Pago Pago, American Samoa, for appellee and cross-appellant. GORDON, Justice: This appeal suit for breach of a construction contract between American Continental Life Insurance Co. (American) and Ranier Construction Co., Inc. (Ranier). trial by jury, a was returned Ranier in the amount of $130,000 and for American in the amount of $10,000 on its counterclaim. The trial judge determined that neither party was entitled to recover fees from the other. parties appeal. Having jurisdiction pursuant to 17A of Civil Appellate Procedure, Rule 19(e), the judgment in favor of Ranier and the disposition of attorney's fees. contracted with to construct a building for $517,286.30. To date, American has paid $457,247.47. The contract required American to monthly progress payments for 90% of the work completed each month upon the by the architect of a certificate for payment. American refused to make the payment, consisting of the retained each month and the amount due for work completed after the date of the progress payment. that Ranier had breached the procedural requirements of the contract to construct the building a workmanlike manner in accordance with the plans specifications. Ranier subsequently instituted suit breach of contract, to recover funds under the contract and damages for delays and lost profits. American counterclaimed for breach of contract and negligence, to recover damages for faulty delays. The jury a single verdict for Ranier in the amount $130,000 and a single verdict for American in amount of $10,000. American appeals the verdict in favor of Ranier. Ranier cross appeals the trial court's refusal to award attorney's fees to Ranier as the prevailing party.[1] At the close of Ranier's case and again at the close of all the evidence, American moved for a directed verdict, which was One of grounds urged by American was that Ranier had failed to meet a condition precedent to right to final payment, because it had failed to procure from the architect a final certificate for as provided in the contract. 55 renews this argument on appeal, contending that the court erred in denying motion for a directed verdict. Article 7 of the contract "Final payment constituting the entire unpaid balance of Contract Sum shall paid by the Owner to the Contractor within thirty (30) days after Substantial Completion of * * * provided the has then been completed * * * and final Certificate for Payment has issued by the Architect." Issuance the final certificate for payment is governed by paragraph of the General of the contract: "Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make and, the Work acceptable under the Contract Documents the Contract fully performed, he will promptly a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis his observations and inspections, the Work been completed in accordance with the terms and of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate, is due payable." The architect issued a certificate of but Ranier admits that a certificate for payment, as in the contract, never applied for or obtained. American asserts, and is undisputed by Ranier, that it was Ranier's responsibility to procure issuance of the certificate. Ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from the beginning, both parties deviated from the of the contract in other respects. Ranier cites as examples the that change orders, although done at the owner's were not signed by the owner; that on occasion the owner even ordered changes to be made without execution of formal change order; that extensions of time granted both formally and informally; that the owner, although in agreement, also failed to sign extensions of time. The trial court believed that there was sufficient evidence to support a submission to the jury as to whether strict compliance had been waived. We disagree. Waiver is either express, voluntary, intentional a known right or such conduct as warrants an of such intentional relinquishment. e.g., City of Tucson Koerber, 82 Ariz. 347, 313 P.2d 411 (1957). Waiver by conduct must established by evidence of acts inconsistent with an intent to assert the right. Occidental Life Co. v. Jacobson, 15 Ariz. 242, 137 P. 869 (1914); see Bolo Corp. Homes and Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d 788 (1970). The waiver one right under a contract does not waive other under the contract. See O'Malley v. Cummings, 86 Ill. App.2d 446, N.E.2d Thus, even American did waive other rights the relating to change orders or extensions of time, that conduct does not manifest an intent to waive any right relating to payment for 56 work. See Practical Construction Co. v. Granite City Housing Authority, 416 F.2d 540 (7th Ranier does not indicate any evidence, nor does any evidence appear in the that the ever any of terms of the contract relating payments. Accordingly, we find no Ranier also alternatively, that certain acts by American[4] prevented fulfillment of the condition excusing performance. We fail to how these acts prevented Ranier from seeking a final certificate of payment from the architect. Similarly, we reject Ranier's assertion that seeking final certificate of payment would been a futile act, because had already demonstrated its unwillingness to co-operate by refusing to sign the certificate of substantial completion. The of to sign the certificate substantial completion has nothing to with obligation under the contract to procure the final certificate of payment in order to be in a posture to claim that payment from American is due. even Ranier is correct in assuming that American would not have made the final payment Ranier sought and the final certificate of payment from the architect, Ranier is not excused the contractually-imposed duty of acquiring the Without it, we have no way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and the application for final payment[5] had been that the thus, fully performed. At the trial, in fact, the architect testified that after he issued the certificate of completion, the was not complete, and the "punch" list remained unfinished.[6] We agree with American that the final certificate for payment is not "procedural chaff." It is a major substantive right, which a vital interest, in that it induces the contractor to render a performance that conforms in fact to plans specifications, spurs him to stay with job and, upon completion, furnishes the main conforming corrections." Loyal Erectors, Inc. v. Hamilton & Son, Inc., 312 A.2d 748, 755 (Me. 1973). The trial erred in failing to direct a verdict in American's favor because of Ranier's 57 non-compliance with the condition precedent of obtaining a final certificate of payment. American challenges the jury's award to Ranier on several other grounds, which we not consider, because we reverse on the basis of the court's denial of American's motion for a directed verdict. We next the issue of attorney's fees raised by Ranier. The contract between American and Ranier provides for attorney's fees in the following language: "In the event of litigation between the hereto arising out of this Contract or the performance of the Work hereunder, the party be entitled to recover reasonable attorney's fees in addition any other damages allowed by law." General Conditions, Paragraph 15.3. The trial judge would not allow either party to recover attorney's fees from the other, because he believed both parties had breached their agreements, and he considered this finding implicit in the jury's verdicts. Because of our decision today reversing the in favor Ranier, American clearly the prevailing party and is entitled to recover attorney's fees by above express provision of the contract. The judgment in favor of is reversed and remanded to the trial court with directions to enter judgment in favor upon Ranier's complaint and to award attorney's fees to American. HOLOH	125 ariZ. 53 (1980) 607 P.2d 372 aMerICAN coNtinental LIFe INSURaNCe COMPANy, AN ARiZona CorporATioN, aPpellANt AnD cRoSs-apPELLEE, V. rAnIER ConStrucTiOn CO., inc., aPpeLLEe aNd cRoss-ApPEllANT. No. 13950. supRemE COuRT of ARIzONa, In banC. FEBrUARy 6, 1980. REhEArINg dEnIeD mArch 11, 1980. 54 FEnnEmORe, CrAiG, vON aMmoN & UDaLl By siLas H. ShuLtz, dWAYnE l. bURTON, MiChaEl GReEN, phOenix, For aPpELlANt And CROSS-APPellEE. THomAs W. MUrPHy, PAgO PAGO, aMeriCan samoa, for ApPeLLEe AND cRoSs-apPelLanT. gORDoN, justICe: THIS apPEal InvolVEs A suIt FoR brEaCh Of a CoNstRUCTiOn coNTraCt beTWEen aMeRICAN CONtInenTal Life InSURANCe co. (aMeriCan) AND RaNIEr conStRuctioN Co., INc. (rAnIer). after tRIaL BY juRY, a verDICt WaS ReTUrnED For raNier In THE amOuNT oF $130,000 ANd FOr aMericAn iN thE AmOuNt of $10,000 On ItS CoUntERclAim. THe TriAL judge DEtErmiNed tHAT neITheR pARTY waS eNtItlED To RecOVER attORneY's FEes fROM THe oTher. both PArTiEs aPPeaL. hAVInG jURiSdIcTioN pUrsuaNT to 17a A.R.s., ruLEs oF CIViL aPpElLaTe prOceDURE, ruLE 19(E), We REVErse thE jUdGmEnt in FAvOR oF RANiER aND tHe Court'S DISPoSiTIOn OF atToRney'S Fees. aMericAn cOnTraCTED With rAnIER To COnStruct A builDInG For $517,286.30. to dATE, AMericaN has PAiD RANier $457,247.47. thE conTRaCT RequIrEd amERIcaN to maKe monTHLY PrOgrEss PaYMENts FoR 90% Of The WOrK CompLeTeD EacH mONTh UPon thE IssUancE bY ThE ARChiteCT OF a CErTifiCATe FoR PaymeNT. AmErIcan REfuSed TO MaKE THe FiNaL PaYmENT, conSISTINg of thE 10% RETaINED eaCH MOntH aNd ThE amOUNT DuE foR wORk COmpleteD aFTer The daTe OF THE lASt PRoGreSs PaYMenT. iT ClaimeD ThAT RaNiEr HAD bREACHeD tHE pROCEdUral REqUiremEnTs Of thE COnTrAcT and HAD fAILed tO coNstRUcT The buIldiNG IN A WORKManliKe manNER AnD In AccoRDAnCe wItH thE plAnS and SPecificATiOns. ranier subseqUEnTLY instItuteD SUIT FoR BReAcH OF ThE COnTRaCT, TO rEcovEr fUndS RetaineD UNdeR THE cONtRaCt And dAMAgeS for delAYs And loST PROfItS. AMeriCan COUntERclAimeD FOr bReach oF cONTraCt And NegligeNCe, tO rECover DaMaGES FOr FAuLTy cONStrUctioN aNd DELAyS. thE jURy Returned A sINGlE VeRdiCt FoR RANier iN thE amOUNT Of $130,000 and A sINgle veRDict for ameriCAn IN the amouNT oF $10,000. aMerICaN aPPEAls THe vERdIcT in fAvoR of rANIER. ranIer cross APpEAlS The TrIal coURt'S rEfusAL to AwArD ATTORney's FEES To raniER as THE PrEVaiLing parTY.[1] aT The ClOse of raniER'S cAsE AnD aGAIn aT the CloSE Of all ThE eVIDence, AmERICan mOVED FOR A DirECTED VErdiCT, wHiCh WaS dENIEd. onE of ThE GroUnDS urGED By aMERICAN WAs thAT RAnIeR had fAILED to meeT a coNDITion PReceDent To thE righT To fINaL pAYMeNt, BecAuse It Had FaIled tO PROCURe frOM tHe aRCHitEcT A FinAL CertiFicaTe FoR pAYmENT AS PROVIDed in the cONTrAct. 55 amERIcaN rENEws This argument On AppEAl, CoNTEnDing tHaT THe CourT errED in dENyinG iTs MoTIOn fOr A dirECTed VERdicT. ArTICLe 7 of thE cOnTrAct ProvIDES: "FiNal PAyMenT CoNStiTuTINg the eNTirE UnPaid bAlaNCe OF The CONtraCt sum SHaLl bE paId BY THE OWNer tO ThE CoNTractoR WIThIn tHIrTy (30) dAyS AFtEr SUbstAntIAl coMpleTIon OF The WORK * * * pROVIDed tHE wOrk has THen BEen cOMPleTEd * * * And a fINal CERtIFIcaTE For pAYmeNT HAS BEEN iSSUeD by THE arcHitect." IssuaNcE oF The finAl cErTiFiCATE for PayMENT iS GOvERnED bY PArAGRAPh 9.7.2 OF tHE GenERAL CONditIoNs OF THe ContraCT: "UpOn reCeipt OF wRittEn nOtIce ThaT THE woRk IS READY for Final InSPeCTiOn AnD AccePTancE anD UpOn ReCeipT OF A fINal aPpLicAtION for paYmENt, THE ArCHITeCt wIlL prOMPtly MAke suCH iNsPeCTIOn anD, WhEN He Finds THe wOrK acCePTAble UNdEr tHe cOntRact DOcuMentS anD THe ConTraCT fuLlY PErfORmED, HE wILL PROMPtLy IsSUE A finAl CeRtifiCate FOR pAymenT StatinG tHat TO the BeST Of His KNoWleDge, iNforMATion And belIeF, aND oN tHE basIS OF HIs oBsErVAtiOnS ANd inspECtioNs, tHE WoRK HAs BEEn cOmpleTed iN AcCoRdaNCE wItH thE TErMs anD CoNdItiOnS OF thE coNtract DOCUMENTS AND ThAT ThE eNTIrE BALaNCE fOUnD tO bE dUE THE COntrACTOR, aND NotED in saID FiNAl cErtiFICATe, iS DUE And paYAbLE." ThE ARcHIteCt IssueD a CERTiFicate Of SuBStANTIAl CoMpLEtioN,[2] buT RaniEr aDMITS thAT a FInAL CertIfiCAtE foR PaYMent, as pROViDeD fOR in thE ContraCt, WaS nEvEr AppLIEd For Or oBtAInED. AMErICan asSErTs, aNd iT iS undISpuTeD By RAniER, THAT iT wAs RAnier'S ResPoNsIbilITY TO pRocUrE ISsuaNCe Of THE cERTifIcATE. raNier ARGuES, hOwEVeR, THAT strIcT complIANCe wITH the reQUIRemENT Of a fInaL cERtifiCAtE FOr pAymENt WAs WaiVED, BECauSe, fRoM the BEGInninG, BOth pArtieS DeViAtEd fRom thE FOrmal reQUiREMenTs oF THe CoNtRAcT IN OthEr respects. raniEr cITeS aS EXaMpLEs tHE FaCT ThAT chANge OrdErs, ALThOUGH done At THe OWnER's REqUeSt, WErE nOT sigNed By THE oWNEr; ThaT on OccASIon the OwnER EveN orDErEd CHanGES to be MadE wITHoUt EXecutIOn of A FormAl ChaNge ordER; THAT EXTENSIoNS of tIME WErE gRanTeD boTh FormaLLy ANd InFORMaLlY; anD tHAT the OWNer, ALThouGh In aGrEEmEnT, ALso FaiLeD to SIgn ExTENSioNs OF TiME. thE TRiAL COURT bEliEVeD thAT tHere WaS SufficIEnt eVideNcE to SuppORT a SubmIssiON tO THE JUrY As TO wHeTHeR sTRiCT coMpLIaNCE hAD BeEN WAivED. We disAgree. wAIVeR IS eItHER ThE exPRess, VolunTArY, InteNTIOnAl rELiNqUiShMenT oF a kNOWn RIgHt OR SucH conDUcT aS WarrANtS an InFeReNce of sUch an INTeNTIonAl relInqUiSHMENT. sEE, e.g., cITy oF tUCsOn v. koeRbEr, 82 AriZ. 347, 313 P.2D 411 (1957). waiVeR By conduCT musT bE eStABliSHEd bY EVideNcE OF aCTS IncONsISteNt wiTH aN IntEnt tO Assert tHE rIGht. ocCIDEntaL liFE InSURanCE CO. v. JACobSon, 15 aRIz. 242, 137 p. 869 (1914); seE BOlo corP. V. hOmeS AND SOn COnstRuCtION co., INc., 105 ArIZ. 343, 464 p.2D 788 (1970). tHe waIVEr OF OnE rIGhT UndeR a coNtracT DOeS noT nEcEsSArily WaIve OTHER rIgHTS UNDEr THE CoNTRAcT. sEE o'mallEy v. CUmminGs, 86 iLl. APP.2d 446, 229 N.E.2d 878 (1967). tHus, EvEn iF aMeriCAn DId wAive OTHeR rigHts uNDer THE cONtRaCt reLaTIng To CHANge oRDeRS or EXTEnSions of tImE, THAt coNduct does nOT mAnIfEST An iNTenT To WaIVE any RIGHt relAtiNg tO PAYment For 56 woRK. seE PrActical CONSTRucTIoN CO. v. grAniTe cITY hOuSINg AUtHoriTy, 416 F.2D 540 (7th ciR.1969). RANiEr doES not InDiCAte aNy EVidENCE, noR DOes ANy evIDEnce aPpeAR iN THe rECord, That ThE PARTiES eVeR dISREGarded aNy of thE TeRmS Of the CoNtracT relatiNg TO payMeNts. AcCOrDiNgLy, wE fInd NO WAivEr.[3] rANieR AlSO ArguES, ALTernatIvely, thAT ceRTain AcTS By AmEriCAN[4] pReVENTEd FuLfILLment OF the CONdiTiOn pREceDEnt, therEbY eXCUSIng PerFoRMAnce. WE faIL TO perceiVe how these ActS prEVENTEd RaNiEr frOm seeKInG a FINal cErTIfIcATE OF payMEnt fROM THe ARcHitEcT. SiMILarly, WE REjeCT RANieR's aSseRTIon tHaT SEEkInG a fInAl ceRtIficatE OF paYmeNT wouLd haVE BeeN a futIle ACT, bECAUsE AmeRiCAn HaD AlrEADY demonsTRATeD ITS UNWiLlInGNesS tO CO-oPErATe By RefUSiNg tO sIgN tHE CeRTifICATe oF SUBStANTIal comPlEtiON. tHE faiLURe of amERicAN to sIGN THE cERtifiCaTe OF SUBsTAnTiAl cOmPLETIon haS nothinG tO DO wITh RaNIer'S obLigaTIon UNDeR ThE conTrACT TO proCure THe fINal cErtIficaTe oF PAYMENT iN orDer tO Be In a postuRE tO CLaIm THaT paYMeNT frOM AMerICan is DUE. MoREOveR, even If RANieR Is cOrRecT IN aSsuMINg thAT aMERicAn WouLd nOt HAVe maDe The FInAL paYMEnt HAD rANIEr SoUght aNd reCeIVEd tHe fInaL cERTIFIcAte Of pAYMeNt fRom The aRchitEct, RaNIeR iS nOt exCusED FRoM THE contrAcTuaLlY-IMPOSed DuTY OF acQuIriNg ThE cErTiFICATe. witHOut It, we HAvE No WaY Of kNoWIng If tHE ARCHItEcT wAs sATIsfIeD thaT the LiSt of iTEMs TO be COMpLETed betweeN thE tImE Of IssUANce of ThE ceRTiFiCAtE oF substAnTIAl COMpliANce AnD the APpLicatioN fOR FiNaL PaYmEnT[5] HaD BeEN compLeted aND That tHE contRaCT Was, ThUS, fulLY perfOrMEd. AT ThE trIAL, In FACt, The ArChiTEct TEstIfIeD ThaT AfTER He iSSuEd tHE ceRTificate oF suBStaNtIAL cOMPLetioN, THE BuILdiNg WAS NoT coMpLEte, And ITeMS on the "PuNcH" liSt rEmaInEd UnfiNIShed.[6] WE AGreE WItH aMeRiCAN THat tHE finAl CertificATE fOR PayMEnT iS nOT "pROCEDural chafF." IT is A maJor SuBSTaNTivE RiGHt, whIch "ServES a VitAl INtERESt, iN that it InDuceS the COnTRactoR TO reNdER a PERfOrmAnCe THaT cONfOrmS in faCt tO PlANs And SpecifICaTIoNs, spurs hIm to STay WiTH THe jOB aNd, UPON cOmpLEtIoN, FurNiSHEs tHE MaIN inCeNtive tO MakE cONfORmIng CoRrEctions." lOYAL eREcTOrS, inC. V. hAmilTON & Son, INc., 312 A.2D 748, 755 (me. 1973). THE tRial COURT errEd in fAIliNg To diREcT A VeRdiCt in AmEricAn'S fAVOR becAusE of raNIeR'S 57 nOn-CoMpliAnCE witH tHE condiTiON PRecedent oF OBtAINiNG a FiNal cERtifiCaTE oF PaYMent. aMERiCaN cHaLLEnGEs tHE jury's Award TO Ranier oN sevErAl OtHEr gRouNds, wHIch wE nEED nOt coNSiDEr, bECause we rEVerSE On tHe BasiS oF THe coURt'S deNial oF aMERICAn's MOTION FoR a dIrEcTeD verDiCt. We NeXt addRESs tHe isSue of AttORNeY's fEeS raISeD by rANIer. THE COntRaCt bEtWeEn aMeRicAN anD RanieR PRovides FOR aTtOrnEY's Fees in thE FOLlowInG laNGUaGE: "In ThE EVeNT OF LiTigation betWEEn The pArTIeS HErEto ARiSINg Out oF This cOnTRact or tHe PErFOrmANcE Of The wORk heReunDEr, THE PreVaiLIng PArty sHaLl be EntitLED To reCoVeR rEasoNAble ATToRnEy'S FEes In adDiTiOn to any OtheR damAges ALlowED by Law." suPPlemenTary gENEral cOndITIonS, PArAgraPH 15.3. thE triAl JUdGE woUlD nOt ALloW EiThEr pArtY tO RECOVeR aTTOrNEy'S fEeS from the oTHEr, beCAuSE HE BELieVeD ThAt Both PARtIEs hAD BReAcHeD ThEir aGREemENtS, And he CONSIDErED thiS FINDiNG IMplIcIt in tHe jUrY's VErdiCtS. becAuSe oF OuR DecISioN todAY rEVeRSiNg ThE judgmENt in Favor of RANIeR, amERICaN IS clEARlY tHE PrevAiLInG pArTY ANd is eNtItLed TO rEcOVeR AttOrnEY's FEEs BY thE AbOVe exPResS proviSIon of tHe cOnTraCT. tHE JuDgMeNt iN fAvor oF RAnieR is rEVErSEd And RemaNdeD TO THe trIAL cOUrt wIth dIRECtIOns To ENTEr juDgmEnt in AMeRicAN'S favor uPon RaNIER's cOMPLaint And to AWarD AtTORNEY'S fees tO AMeRiCAN. hOloh	125 Ariz.53 (1980)607 P.2d 372AMERICAN CONTINENTAL LIFE INSURANCE COMPANY, an Arizona Corporation, Appellant and Cross-Appellee, v. RANIER CONSTRUCTION CO., INC., Appellee and Cross-Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6,1980. Rehearing Denied March 11, 1980.54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, DwayneL. Burton,Michael Green,Phoenix, for appellant and cross-appellee. Thomas W. Murphy, Pago Pago, American Samoa,forappellee and cross-appellant. GORDON, Justice: Thisappealinvolves asuit for breach ofa construction contract between American Continental Life Insurance Co. (American) and Ranier Construction Co., Inc. (Ranier). After trial by jury, averdict was returned for Ranier in the amount of $130,000 and for American in theamount of $10,000 on its counterclaim. The trial judge determined that neither party was entitled to recover attorney's fees from the other. Both parties appeal. Having jurisdictionpursuant to17A A.R.S., Rulesof Civil Appellate Procedure, Rule 19(e), we reverse the judgment in favor of Ranier and the court's disposition of attorney's fees. American contracted with Ranier toconstruct abuilding for $517,286.30.To date, American has paidRanier $457,247.47. The contract required American to make monthly progress payments for 90% of the work completed each month upon theissuance by the architectofa certificate for payment. American refused tomake the final payment,consisting of the 10% retained each month and theamount due for work completed after the date of the last progress payment. It claimed that Ranier had breached the procedural requirementsof thecontract and had failed to construct the building in a workmanlike manner and in accordance with the plans and specifications. Ranier subsequently instituted suit for breach of the contract, to recover funds retained underthe contractand damages for delaysand lost profits. American counterclaimed for breach of contract and negligence, to recover damages for faultyconstruction and delays. The jury returned a single verdict for Ranier in the amount of $130,000 and a single verdict for American in the amount of$10,000. American appeals the verdict in favor ofRanier. Ranier cross appealsthe trial court'srefusalto award attorney's fees to Ranier as theprevailing party.[1] At the close of Ranier's case and again atthe close of all the evidence, American movedfor a directed verdict, whichwas denied. One of the groundsurged by American was that Ranier had failed to meet a condition precedent to the right to final payment, because ithad failed to procure from the architect a final certificatefor payment as provided in the contract. 55 American renews this argumenton appeal, contendingthatthe court erredin denyingits motion for a directed verdict. Article 7 of the contract provides:"Final paymentconstituting the entire unpaid balanceof the Contract Sum shall be paid bythe Owner to the Contractorwithin thirty (30) daysafter Substantial Completionof the Work * * * provided the workhas then been completed * * * and a final Certificate for Payment hasbeen issued bythe Architect." Issuanceof the final certificate for payment is governed by paragraph 9.7.2 of the General Conditions of the contract: "Upon receiptof written notice that the Work is ready for final inspection and acceptance and uponreceipt of afinal Application for Payment, the Architect will promptly make such inspection and,when he finds the Workacceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Paymentstating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, theWork has beencompleted in accordancewith the terms and conditions ofthe Contract Documentsandthat the entire balance found to be due the Contractor, and notedin said final Certificate, is due and payable." The architectissued a certificateof substantialcompletion,[2] butRanier admits thata final certificate for payment, as provided for in the contract, was never applied for or obtained. American asserts, and itis undisputed by Ranier, thatit was Ranier's responsibility to procure issuanceof the certificate. Ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from thebeginning, both partiesdeviated from the formal requirements ofthe contract inother respects. Ranier cites as examples the fact that change orders, although done atthe owner's request, werenot signed by the owner;that onoccasion theowner even ordered changesto be made without execution of a formal change order; that extensions of timewere grantedbothformallyand informally; and that the owner, although in agreement, also failed to sign extensions of time. The trial court believed that there was sufficient evidencetosupport a submission to the jury as towhether strict compliance had been waived. We disagree. Waiver iseither the express, voluntary, intentional relinquishment of a knownright or such conduct as warrants an inference of such anintentional relinquishment. See, e.g., City of Tucson v. Koerber, 82 Ariz. 347, 313P.2d 411 (1957). Waiver by conduct must be established by evidence of acts inconsistent with anintent to assert the right. Occidental LifeInsurance Co. v.Jacobson, 15 Ariz. 242, 137 P. 869(1914); see Bolo Corp. v. Homes and Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d 788 (1970). The waiver of one right under a contract doesnotnecessarily waive otherrights under the contract. See O'Malley v. Cummings, 86 Ill. App.2d 446, 229 N.E.2d 878 (1967). Thus, even if American did waive other rights under the contract relating tochange orders or extensions of time, thatconductdoesnot manifest an intent to waive any rightrelating to paymentfor 56 work. See Practical Construction Co. v. Granite City Housing Authority, 416 F.2d 540 (7th Cir.1969). Ranier does not indicate any evidence, nor does any evidence appear in therecord, that theparties ever disregarded anyofthe terms of the contract relating to payments.Accordingly,we find no waiver.[3]Ranier also argues, alternatively, that certain actsby American[4] prevented fulfillmentof the condition precedent, thereby excusing performance. We failto perceive how these acts prevented Ranier from seeking a finalcertificate ofpayment from the architect. Similarly, we reject Ranier's assertion that seekinga finalcertificate of paymentwould have been a futile act, becauseAmerican had already demonstrated its unwillingness to co-operate by refusing to sign the certificateof substantial completion. The failure of American tosign the certificate of substantial completion has nothingto do with Ranier's obligation under thecontract to procure the final certificate ofpaymentin order to be in a posture to claim thatpayment from American is due. Moreover, even if Ranier is correct in assuming that American would nothave made the final payment had Ranier sought and receivedthe final certificate of payment from the architect, Ranier is not excusedfrom the contractually-imposed duty of acquiring the certificate. Without it, wehaveno way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and theapplication for final payment[5]had been completedand that the contract was, thus, fullyperformed. At the trial, in fact, the architect testified that after he issued the certificate of substantial completion, thebuilding was not complete, and items onthe "punch" list remained unfinished.[6] We agree with American that the final certificate for payment isnot "procedural chaff."It is a major substantive right, which "serves avital interest, in that it induces the contractor to rendera performance thatconformsin fact to plans and specifications, spurs him to stay with the job and,upon completion, furnishes the main incentive to make conforming corrections." Loyal Erectors, Inc.v. Hamilton & Son, Inc.,312 A.2d748,755 (Me. 1973). The trial court erredin failingtodirect a verdict in American's favorbecause of Ranier's 57non-compliance with thecondition precedent of obtaininga final certificate of payment. American challengesthejury'saward to Ranier on several other grounds, which weneednotconsider, because we reverseon the basis of thecourt's denial of American's motionfora directed verdict. We next address the issue of attorney's fees raised by Ranier. The contractbetweenAmerican and Ranier provides for attorney'sfees in the following language: "In theevent of litigation between the parties hereto arisingout of this Contract or the performance of the Work hereunder, the prevailingparty shall be entitled to recoverreasonableattorney's fees inadditionto any otherdamages allowed by law." Supplementary General Conditions,Paragraph 15.3. The trial judge would not alloweither party to recover attorney's fees from theother, because he believedthat both parties had breached their agreements, and he considered this finding implicit inthe jury'sverdicts. Becauseof ourdecision today reversing the judgment in favor ofRanier, American is clearlythe prevailingparty and is entitled to recover attorney'sfees by the above express provision of the contract. Thejudgmentinfavor of Ranier is reversedand remanded to the trial court with directions to enter judgment inAmerican's favor upon Ranier's complaint and to award attorney's feesto American. HOLOH	125 Ariz. 53 (1980) _607_ _P.2d_ _372_ _AMERICAN_ _CONTINENTAL_ _LIFE_ INSURANCE COMPANY, _an_ Arizona Corporation, Appellant and Cross-Appellee, _v._ RANIER CONSTRUCTION CO., _INC.,_ Appellee and Cross-Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6, 1980. Rehearing Denied _March_ 11, 1980. 54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, Dwayne L. _Burton,_ _Michael_ Green, _Phoenix,_ for _appellant_ and cross-appellee. Thomas _W._ Murphy, Pago Pago, American Samoa, _for_ appellee _and_ cross-appellant. GORDON, Justice: This appeal involves a suit for breach _of_ a construction contract between American _Continental_ _Life_ _Insurance_ Co. _(American)_ and Ranier Construction _Co.,_ Inc. (Ranier). _After_ trial by jury, a _verdict_ was returned for _Ranier_ in the amount of _$130,000_ and for American _in_ the amount _of_ $10,000 on its counterclaim. The trial _judge_ determined that neither party was _entitled_ to _recover_ attorney's fees _from_ the other. Both parties appeal. Having jurisdiction pursuant to 17A _A.R.S.,_ Rules _of_ Civil Appellate Procedure, _Rule_ 19(e), _we_ _reverse_ _the_ judgment in favor of _Ranier_ and _the_ court's disposition of attorney's fees. American contracted _with_ _Ranier_ to construct a building for $517,286.30. To date, American has paid Ranier _$457,247.47._ The contract _required_ _American_ to make monthly progress payments for _90%_ _of_ the _work_ completed each month upon the issuance by the architect of a certificate for payment. American _refused_ to make the final _payment,_ consisting of the 10% retained each _month_ and the _amount_ _due_ _for_ work _completed_ after the date of the last progress payment. It claimed _that_ Ranier had breached the procedural requirements of the contract and had failed to _construct_ _the_ building in _a_ workmanlike manner and in _accordance_ with the plans and _specifications._ Ranier subsequently _instituted_ suit for _breach_ of the contract, to recover _funds_ retained _under_ the contract _and_ damages for delays and _lost_ profits. American _counterclaimed_ for _breach_ _of_ contract and negligence, _to_ recover damages for _faulty_ construction _and_ delays. The _jury_ returned a single verdict for Ranier in the _amount_ of $130,000 _and_ a single verdict for American in the amount _of_ $10,000. American _appeals_ _the_ verdict in _favor_ of Ranier. Ranier cross appeals the trial _court's_ refusal to award attorney's fees to Ranier as the prevailing party.[1] _At_ the close _of_ Ranier's case and again at the close of _all_ the evidence, American _moved_ for a directed verdict, which was denied. _One_ of the grounds urged _by_ American was _that_ Ranier had _failed_ _to_ _meet_ a condition precedent to the _right_ _to_ final _payment,_ because _it_ had failed to procure from _the_ _architect_ a _final_ certificate _for_ payment _as_ provided in the contract. 55 American renews _this_ _argument_ on appeal, contending that the court erred in denying its motion for a _directed_ verdict. Article _7_ of _the_ contract provides: "Final payment constituting the entire _unpaid_ balance of the Contract Sum shall be paid by the Owner to the Contractor within _thirty_ _(30)_ days after Substantial Completion of the Work * __ provided the work has _then_ been completed * * __ and a _final_ Certificate for Payment has been _issued_ by the Architect." _Issuance_ of the _final_ certificate for payment is _governed_ by paragraph 9.7.2 of the General Conditions of the contract: "Upon receipt of written notice _that_ the Work is _ready_ for final inspection and _acceptance_ and upon _receipt_ of _a_ final _Application_ for Payment, the Architect will promptly make such inspection and, when _he_ finds the Work acceptable under the Contract Documents and the Contract fully performed, he _will_ _promptly_ issue a final Certificate for Payment stating that to the best of _his_ knowledge, _information_ and belief, and on the basis of his observations and _inspections,_ the Work has been _completed_ in accordance with the terms and _conditions_ of the _Contract_ _Documents_ and that the _entire_ balance found to _be_ due the Contractor, and noted _in_ said final Certificate, is _due_ and payable." The architect issued a certificate of substantial completion,[2] but Ranier admits _that_ a final certificate for payment, as provided _for_ in the contract, was never applied for or obtained. American asserts, _and_ it is undisputed by _Ranier,_ that it was Ranier's _responsibility_ to procure issuance of the certificate. Ranier argues, _however,_ _that_ _strict_ _compliance_ with the requirement of _a_ final certificate for _payment_ _was_ waived, _because,_ _from_ the beginning, both parties deviated _from_ the formal requirements of _the_ contract in other respects. _Ranier_ _cites_ as examples the fact that change orders, although done at _the_ owner's request, were not signed by the _owner;_ that on occasion _the_ owner even ordered changes to be _made_ without execution of _a_ formal change order; that extensions of time were granted both formally and informally; and that the owner, although in _agreement,_ also failed to sign extensions of time. _The_ trial court believed that there _was_ sufficient evidence _to_ support a submission to the jury as to whether strict compliance _had_ been waived. _We_ disagree. Waiver is either _the_ express, voluntary, intentional _relinquishment_ of a known _right_ or such _conduct_ as _warrants_ an inference _of_ such an intentional relinquishment. See, _e.g.,_ _City_ _of_ Tucson v. Koerber, _82_ Ariz. 347, _313_ P.2d 411 (1957). Waiver by conduct must be established _by_ evidence of acts inconsistent with an intent to assert _the_ right. Occidental Life _Insurance_ Co. v. _Jacobson,_ 15 Ariz. 242, 137 P. 869 (1914); see Bolo _Corp._ v. Homes and Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d _788_ (1970). The waiver of one _right_ _under_ a contract does _not_ necessarily waive other rights under the _contract._ See O'Malley v. Cummings, 86 _Ill._ App.2d 446, 229 N.E.2d 878 (1967). Thus, even if American did waive other rights under the contract _relating_ _to_ change orders _or_ extensions of time, that conduct _does_ not _manifest_ an _intent_ _to_ waive any right relating to payment _for_ _56_ work. See Practical _Construction_ Co. v. Granite City Housing Authority, 416 F.2d 540 (7th _Cir.1969)._ _Ranier_ does not indicate any evidence, nor does _any_ _evidence_ appear in the record, that the parties ever disregarded any of _the_ terms of _the_ _contract_ relating to payments. _Accordingly,_ we find _no_ waiver.[3] Ranier also argues, _alternatively,_ that certain acts _by_ _American[4]_ _prevented_ fulfillment of _the_ _condition_ precedent, thereby excusing performance. We fail to _perceive_ _how_ these _acts_ prevented _Ranier_ _from_ seeking _a_ final certificate _of_ _payment_ from the architect. Similarly, we reject Ranier's assertion that _seeking_ a _final_ certificate of payment _would_ _have_ been a futile act, because American had already demonstrated its unwillingness to _co-operate_ _by_ refusing to sign the certificate of substantial completion. _The_ failure of American to sign the certificate of substantial completion has nothing _to_ do _with_ Ranier's obligation under the contract _to_ procure the final _certificate_ of payment _in_ _order_ to be in a _posture_ to claim that _payment_ from American is due. Moreover, even if Ranier is correct in assuming _that_ _American_ would not have made the final payment had Ranier _sought_ and _received_ the final certificate of payment _from_ the architect, _Ranier_ is not excused from the _contractually-imposed_ duty of acquiring _the_ certificate. Without it, _we_ _have_ _no_ way of knowing if the architect was satisfied that the list of items _to_ be _completed_ between the time _of_ issuance of the certificate of substantial compliance and the application _for_ final _payment[5]_ had been _completed_ and that _the_ contract was, thus, fully _performed._ At the trial, in fact, the _architect_ testified _that_ after he issued the certificate of substantial completion, _the_ building was not complete, and _items_ on the "punch" list remained _unfinished.[6]_ _We_ _agree_ _with_ American that the final certificate for payment is not "procedural _chaff."_ It is a _major_ substantive right, which "serves a vital _interest,_ in that it induces the contractor to _render_ a performance that conforms _in_ fact to plans and specifications, spurs him to stay with the job _and,_ upon completion, furnishes the main incentive to make conforming corrections." Loyal Erectors, Inc. v. Hamilton & Son, Inc., _312_ _A.2d_ _748,_ 755 (Me. 1973). The trial court _erred_ in failing _to_ direct a verdict in _American's_ favor because _of_ Ranier's *57 non-compliance with _the_ condition precedent of obtaining _a_ _final_ _certificate_ _of_ payment. American challenges the _jury's_ award _to_ Ranier on several other grounds, which _we_ need not consider, because we reverse _on_ the basis of the court's denial of _American's_ motion for a directed verdict. We next _address_ _the_ issue of attorney's _fees_ _raised_ by Ranier. The contract between American and Ranier _provides_ for attorney's fees in the following language: "In _the_ event of litigation between the parties _hereto_ arising _out_ of this _Contract_ or the performance of the Work hereunder, _the_ prevailing party shall _be_ entitled to recover reasonable attorney's fees _in_ addition to any other _damages_ allowed by _law."_ Supplementary General Conditions, Paragraph _15.3._ _The_ trial judge would not allow either party _to_ recover attorney's _fees_ from _the_ other, because he _believed_ _that_ both parties had _breached_ their _agreements,_ and he considered this finding implicit _in_ the jury's verdicts. Because of our decision today reversing the _judgment_ in favor of Ranier, American _is_ clearly _the_ prevailing party and _is_ _entitled_ _to_ _recover_ attorney's fees by the above express provision of the contract. The judgment in _favor_ of Ranier is _reversed_ and remanded _to_ the _trial_ court _with_ _directions_ to enter judgment in American's favor upon Ranier's complaint and to award attorney's fees to _American._ HOLOH
170 S.W.3d 26 (2005) Conrad STROMBERG, et al., Respondents/Cross-Appellants, v. Kevin J. MOORE, et al., Cross/Respondent, and State Bank of Jefferson County, Appellant, and UMB Bank, n.a., and American Family Insurance Company, Respondent. No. ED 83912. Missouri Court of Appeals, Eastern District, Division Two. June 28, 2005. Motion for Rehearing and/or Transfer Denied August 4, 2005. Application for Transfer Denied September 20, 2005. 27 Michael A. Campbell, Dawn Ann M. Johnson, St. Louis, MO, for Appellant. Gregory D. O'Shea, St. Louis, MO, Nicholas G. Gasaway, Jr., Hillsboro, MO, for Respondent. Motion for Rehearing and/or Transfer to Supreme Court Denied August 4, 2005. ROBERT G. DOWD, JR., Judge. State Bank of Jefferson County (State Bank) appeals from the judgment awarding Conrad Stromberg (Stromberg) $80,000 in damages for negligence and conversion in connection with an $80,000 draft (Draft) issued by American Family Mutual Insurance Company (American Family) in connection with a fire insurance claim. On appeal, State Bank argues the trial court 28 erred in granting judgment in favor of Stromberg because (1) under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft, (2) under Section 400.3-420, RSMo 2000,[1] liability for conversion is limited to the plaintiff's interest in the instrument, and (3) the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. On cross-appeal, Stromberg argues the trial court erred in denying him damages by way of interest in its application of Section 408.040. We affirm in part and reverse and remand in part. Viewed in the light most favorable to the judgment, the following facts were adduced at trial. Stromberg owned a plot of ground with buildings located in DeSoto, Missouri. In 1997, Stromberg sold this property to Kevin and Lucinda Moore (collectively referred to as the Moores) for a purchase price of $100,000, receiving $7,000 at closing and taking back a note and Deed of Trust for $93,000. Named as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs). The note secured by the Deed of Trust was payable over twenty years with monthly payments of $807.08. Also at the closing, a policy of fire insurance in the amount of $80,000 was issued on the property naming Complete Auto Repair, the Moore's company, as the insured and Stromberg as the mortgagee.[2] On June 7, 1998, the buildings on the mortgaged property were completely destroyed by fire. On June 8, 1998, American Family received a telephone proof of loss from its insured, the Moores d/b/a Complete Auto Repair. On July 13, 1998, American Family issued the Draft in the amount of $80,000 which was the total amount of coverage under its policy and made the draft payable to Complete Auto Repair and Stromberg. Kevin Moore received the draft by mail. Stromberg and the Moores met in late July or early August to discuss division of the Draft without reaching any agreement as to its division because the amount the Moores owed Stromberg on the Deed of Trust on the date of the fire was approximately $92,000.[3] On August 11, 1998, Kevin Moore presented the Draft, purportedly endorsed by both payees, for deposit into his business account at State Bank. Stromberg testified he did not endorse the Draft nor did he authorize Kevin Moore or Complete Auto Repair to endorse the Draft for him. Linda Tucker, teller for State Bank, testified relating to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the Draft but was not accompanied by Stromberg. Kevin Moore told Linda Tucker that Stromberg was his partner. Linda Tucker testified that she did not know Stromberg and, at the time of deposit, she did not require identification or verification that Stromberg's signature was correct and genuine. She further testified that there was a partnership resolution on file for 29 Complete Auto Repair showing the signature of Kevin Moore but not that of Stromberg. In fact, Stromberg was never a part of the partnership resolution nor was his signature on record anywhere at State Bank. Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank and that he would not have received any notice of account activity. Richard Francis also testified that the bank had no relationship with Stromberg nor did he know of or did the bank have a financial interest in the transaction between Stromberg and Kevin Moore. Additionally, Richard Francis testified the teller is required to know the endorser. There was no signature card on file bearing Stromberg's signature. Handwriting expert, William Storer, testified that it was his opinion the signature of Stromberg was not genuine. Before discovering the Draft had been deposited, Stromberg foreclosed on the mortgaged property on November 10, 1998. At the time of foreclosure, he was not aware that Kevin Moore had deposited the Draft into State Bank over the forgery of his signature. Stromberg took back the real estate at the foreclosure sale. Stromberg testified he did not know that the Draft was deposited until after the foreclosure. Stromberg was never a customer of State Bank, nor did he have access to any financial information that he could have reviewed to know of the deposit. After discovering the Draft had been deposited without his consent, Stromberg notified State Bank sometime in November of 1998 of the forgery and later received a phone call from Richard Francis asking why the forgery had not been reported sooner. Stromberg replied that he reported the forgery as soon as he found out about it.[4] Stromberg sent a letter to State Bank after it had been confirmed the Draft was forged. Stromberg demanded return of the Draft proceeds. State Bank, through Richard Francis, denied Stromberg's demand. This case was presented for trial. After trial, the trial court entered a judgment granting damages for conversion in favor of Stromberg, but denying Stromberg damages by way of interest from the date of conversion. This appeal follows. On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a means of recovering his damages, rather than pursuing a claim against State Bank on the Draft, Stromberg elected his remedy and now cannot pursue a claim for conversion against State Bank. In related points, State Bank argues that liability for conversion is limited to a plaintiff's interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. We disagree. In a court-tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. We accept all evidence and inferences favorable to the judgment, and disregard all 30 contrary inferences. P & K Heating and Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the trial court's factual findings if supported by substantial evidence in the record. Id. The election of remedies doctrine, a doctrine of estoppel, originates from the theory that "where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy." Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506 (Mo. banc 1993)(quoting Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935)). The purpose of the election of remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell Trust Co., 534 S.W.2d 83, 94 (Mo. App.1976). "Where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action." Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S.W.2d 843, 846 (Mo.App. W.D.1993)(quoting U.S. Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 109 S.W.2d 47 (1937)). To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another. Ellsworth Breihan Bldg. Co.	170 s. w. 3d 26 ( 2005 ) conrad stromberg, et al., respondents / cross - appellants, v. kevin j. moore, et al., cross / respondent, and state bank of jefferson county, appellant, and umb bank, n. a., and american family insurance company, respondent. no. ed 83912. missouri court of appeals, eastern district, division two. june 28, 2007. motion for rehearing and / or transfer denied august 4, 2005. application for transfer denied september 20, 2005. * 27 michael a. campbell, dawn ann m. johnson, st. louis, mo, for appellant. gregory d. o ' shea, st. louis, mo, nicholas r. gasaway, jr., hillsboro, mo, for respondent. motion for rehearing and / or transfer to supreme court denied august 4, 2005. robert h. dowd, jr., judge. state bank of jefferson maryland ( state bank ) appeals from the judgment grants conrad stromberg ( stromberg ) $ 80, 000 in damages for negligence and conversion in connection with an $ 80, 000 draft ( draft ) issued by american family mutual insurance company ( american family ) in connection with a fire insurance claim. on appeal, state bank argues the trial court * 28 erred in granting judgment in favor of stromberg because ( 1 ) under the election of remedies doctrine, stromberg is precluded from filing an interest in the draft, ( 2 ) under section 400. 3 - 420, rsmo 2000, [ 1 ] eligibility for conversion is limited to the plaintiff ' s interest in the instrument, and ( 3 ) the doctrine of unavoidable consequences and the doctrine of laches prevent stromberg from making a claim against state bank. on cross - appeal, prosecutors argues the trial court erred in denying him damages by way of interest in its application of section 408. 040. we affirm in part and reverse and remand in court. viewed in the light most favorable to any judgment, the following facts were adduced at trial. stromberg owned a plot of ground with buildings located in desoto, missouri. in 1997, stromberg sold this property to kevin and lucinda moore ( collectively referred to as the moores ) for a purchase price of $ 100, 000, receiving $ 7, 000 at closing and taking back a note and deed of trust for $ 93, 000. named as beneficiaries on the deed of trust were stromberg, mary stromberg, his wife, shawn stromberg, his son, and margaret stromberg, his daughter ( collectively referred to as the strombergs ). the note secured by the deed of trust was payable over twenty years with monthly payments of $ 807. 08. also at the closing, a policy of fire insurance in the amount of $ 80, 000 was issued on the property naming complete auto repair, the moore ' s company, as the insured and stromberg as the mortgagee. [ 2 ] on june 7, 1998, the buildings on the mortgaged property were completely destroyed by fire. on june 8, 1998, american family received a telephone proof of loss from its insured, the moores d / b / a complete auto repair. on july 13, 1998, american family issued the draft in the amount of $ 80, 000 which was the total amount of coverage under its policy and made the draft payable to complete auto repair and stromberg. kevin moore received the draft by mail. stromberg and the moores met in late july or early august to discuss division of the draft without reaching any agreement as to its division because the amount the moores owed stromberg on the deed of trust on the date of the fire was approximately $ 92, 000. [ 3 ] on august 11, 1998, kevin moore presented the draft, purportedly endorsed by both payees, for deposit into his business account at state bank. stromberg testified he did not endorse the draft nor did he authorize kevin moore or complete auto repair to endorse the draft for him. linda tucker, teller for state bank, testified relating to the deposit of the draft by kevin moore. she testified that kevin moore came into the bank with the draft but was not accompanied by stromberg. kevin moore told linda tucker that stromberg was his partner. linda tucker testified that she did not know stromberg and, at the time of deposit, she did not require identification or verification that stromberg ' s signature was correct and genuine. she further testified that there was a partnership resolution on file for * 29 complete auto repair showing the signature of kevin moore but not that of stromberg. in fact, stromberg was never a part of the partnership resolution nor was his signature on record anywhere at state bank. richard francis, president of state bank, testified that stromberg was not a customer of the bank and that he would not have received any notice of account activity. richard francis also testified that the bank had no relationship with stromberg nor did he know of or did the bank have a financial interest in the transaction between stromberg and kevin moore. additionally, richard francis testified the teller is required to know the endorser. there was no signature card on file bearing stromberg ' s signature. handwriting expert, william storer, testified that it was his opinion the signature of stromberg was not genuine. before discovering the draft had been deposited, stromberg foreclosed on the mortgaged property on november 10, 1998. at the time of foreclosure, he was not aware that kevin moore had deposited the draft into state bank over the forgery of his signature. stromberg took back the real estate at the foreclosure sale. stromberg testified he did not know that the draft was deposited until after the foreclosure. stromberg was never a customer of state bank, nor did he have access to any financial information that he could have reviewed to know of the deposit. after discovering the draft had been deposited without his consent, stromberg notified state bank sometime in november of 1998 of the forgery and later received a phone call from richard francis asking why the forgery had not been reported sooner. stromberg replied that he reported the forgery as soon as he found out about it. [ 4 ] stromberg sent a letter to state bank after it had been confirmed the draft was forged. stromberg demanded return of the draft proceeds. state bank, through richard francis, denied stromberg ' s demand. this case was presented for trial. after trial, the trial court entered a judgment granting damages for conversion in favor of stromberg, but denying stromberg damages by way of interest from the date of conversion. this appeal follows. on appeal, state bank argues the trial court erred in granting judgment in favor of stromberg because under the election of remedies doctrine, stromberg is precluded from claiming an interest in the draft. specifically, state bank contends that because stromberg foreclosed on the property as a means of recovering his damages, rather than pursuing a claim against state bank on the draft, stromberg elected his remedy and now cannot pursue a claim for conversion against state bank. in related points, state bank argues that liability for conversion is limited to a plaintiff ' s interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent stromberg from making a claim against state bank. we disagree. in a court - tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. murphy v. carron, 536 s. w. 2d 30, 32 ( mo. banc 1976 ). id. we accept all evidence and inferences favorable to the judgment, and disregard all * 30 contrary inferences. p & k heating and air conditioning, inc. v. tusten townhomes redevelopment corp., 877 s. w. 2d 121, 123 ( mo. app. e. d. 1994 ). we are bound by the trial court ' s factual findings if supported by substantial evidence in the record. id. the election of remedies doctrine, a doctrine of estoppel, originates from the theory that " where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy. " whittom v. alexander - richardson partnership, 851 s. w. 2d 504, 506 ( mo. banc 1993 ) ( quoting tooker, et al., v. missouri power & light co., 336 mo. 592, 80 s. w. 2d 691, 695 ( 1935 ) ). the purpose of the election of remedies doctrine is to prevent double redress for a single wrong. twellman v. lindell trust co., 534 s. w. 2d 83, 94 ( mo. app. 1976 ). " where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action. " skandia america reinsurance corp. v. financial guardian group, 857 s. w. 2d 843, 846 ( mo. app. w. d. 1993 ) ( quoting u. s. fidelity & guaranty co. v. fidelity nat. bank & trust co., 232 mo. app. 412, 109 s. w. 2d 47 ( 1937 ) ). to determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another. ellsworth breihan bldg. co.	170 S. W. 3d 26 (2005) C8nrav STROMBERG, et al. , Respondents / Cross - Appellants, v. Kevin J. MOORE, et al. , Cross / Respondent, and State Bank of Jeffe5sob County, Appellant, and UMB Bank, n. a. , and American Family Insurance Company, Respondent. No. ED 83912. Missouri Court of Appeals, Eastern District, Division Two. June 28, 2005. Motion for Rehearing and / or Transfer Denied August 4, 2005. Application for Transfer Denied September 20, 2005. * 27 Michael A. Campbell, Dawn Ann M. Johnson, St. Louis, MO, for Appellant. Gregory D. O ' Shea, St. Louis, MO, Nicholas G. Gasaway, Jr. , Hillsboro, MO, for Respondent. Motion for Rehearing and / or Transfer to Supreme Court Denied August 4, 2005. ROBERT G. DOWD, JR. , Judge. State Bank of Jefferson County (State Bank) appeals from the judgment awarding Conrad Stromberg (Stromberg) $ 80, 000 in wamWges for negligence and conversion in connection with an $ 80, 000 draft (Draft) issued by American Family Mutual Insurance Company (American Family) in connection with a fire insurance claim. On appeal, State Bank argues the trial court * 28 erred in granting judgment in favor of Stromberg because (1) under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft, (2) under Section 400. 3 - 420, RSMo 2000, [1] liability for conversion is limited to the plaintiff ' s interest in the instrument, and (3) the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. On cross - appeal, Stromberg argues the trial court erred in denying him damages by way of interest in its application of Section 408. 040. We affirm in part and reverse and remand in part. Viewed in the light most favorable to the judgment, the following facts were adduced at trial. Stromberg owned a plot of ground with buildings located in DeSoto, Missouri. In 1997, Stromberg sold this property to Kevin and Lucinda Moore (collectively referred to as the Moores) for a purchase price of $ 100, 000, receiving $ 7, 000 at closing and taking back a note and Deed of Trust for $ 93, 000. Named as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs ). The note secured by the Deed of Trust was payable over twenty years with monthly payments of $ 807. 08. Also at the closing, a policy of fire insurance in the amount of $ 80, 000 was issued on the property naming Complete Auto Repair, the Moore ' s company, as the insured and Stromberg as the mortgagee. [2] On June 7, 1998, the buildings on the mortgaged property were completely destroyed by fire. On June 8, 1998, American Family received a telephone proof of loss from its insured, the Moores d / b / a Complete Auto Repair. On July 13, 1998, American Family issued the Draft in the amount of $ 80, 000 which was the total amount of coverage under its policy and made the draft payable to Complete Auto Repair and Stromberg. Kevin Moore 4ecekved the draft by mail. Stromberg and the Moores met in late July or early Akgush to discuss division of the Draft without reaching any agreement as to its division because the amount the Moores owed Stromberg on the Deed of Trust on the date of the fire was approximately $ 92, 000. [3] On August 11, 1998, Kevin Moore presented the Draft, purportedly endorsed by both payees, for deposit into his business account at State Bank. Stromberg testified he did not endorse the Draft nor did he authorize Kevin Moore or Complete Auto Repair to endorse the Draft for him. Linda Tucker, teller for State Bank, testified relating to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the Draft but was not accompanied by Stromberg. Kevin Moore told Linda Tucker that Stromberg was his partner. Linda Tucker testified that she did not know Stromberg and, at the time of deposit, she did not require identification or verification that Stromberg ' s signature was correct and genuine. She further testified that there was a partnership resolution on file for * 29 Complete Auto Repair showing the signature of Kevin Moore but not that of Stromberg. In fact, Stromberg was never a part of the partnership resolution nor was his signature on record anywhere at State Bank. Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank and that he would not have received any notice of account activity. Richard Francis also testified that the bank had no relationship with Stromberg nor did he know of or did the bank have a financial interest in the transaction between Stromberg and Kevin Moore. Additionally, Richard Francis testified the teller is required to know the endorser. There was no signature card on file bearing Stromberg ' s signature. Handwriting expert, William Storer, testified thSH it was his opinion the signature of Stromberg was not genuine. Before discovering the Draft had nesn deposited, Stromberg foreclosed on the mortgaged property on November 10, 1998. At the time of foreclosure, he was not aware that Kevin Moore had deposited the Draft into State Bank over the forgery of his signature. Stromberg took back the real estate at the foreclosure sale. Stromberg testified he did not know that the Draft was deposited until after the foreclosure. Stromberg was never a customer of State Bank, nor did he have access to any financial information that he could have reviewed to know of the deposit. After discovering the Draft had been deposited without his consent, Stromberg notified State Bank sometime in November of 1998 of the forgery and later received a phone call from Richard Francis asking why the forgery had not been reported sooner. Stromberg replied that he reported the forgery as soon as he found out about it. [4] Stromberg sent a letter to State Bank after it had been confirmed the Draft was forged. Stromberg demanded return of the Draft proceeds. State Bank, through Richard Francis, denied Stromberg ' s demand. This case was presented for trial. After trial, the trial court entered a judgment granting damages for conversion in favor of Stromberg, but denying Stromberg damages by way of interest from the date of conversion. This appeal follows. On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a means of recovering his damages, rather than pursuing a claim against State Bank on the Draft, Stromberg elected his remedy and now cannot pursue a claim for conversion against State Bank. In related points, State Bank argues that liability for conversion is limited to a plaintiff ' s interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. We disagree. In a court - tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S. W. 2d 30, 32 (Mo. banc 1976 ). Id. We accept all evidence and inferences favorable to the judgment, and disregard all * 30 contrary infeGencRs. P & K Heating and Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp. , 877 S. W. 2d 121, 123 (Mo. App. E. D. 1994 ). We are bound by the trial court ' s gzctual findings if supported by substantial evidence in the record. Id. The election of remedies doctrine, a doctrine of estoppel, originates from the theory that " where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy. " Whittom v. Alexander - Richardson Oartnerchip, 851 S. W. 2d 504, 506 (Mo. banc 1993) (quoting Tooker, et al. , v. Missouri Power & Light Co. , 336 Mo. 592, 80 S. W. 2d 691, 695 (1935) ). The purpose of the election of remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell Trust Co. , 534 S. W. 2d 83, 94 (Mo. App. 1976 ). " Where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action. " Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S. W. 2d 843, 846 (Mo. App. W. D. 1993) (quoting U. S. Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co. , 232 Mo. App. 412, 109 S. W. 2d 47 (1937) ). To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another. Ellsworth Breihan Bldg. Co.	170 S.W.3d 26 (2005) Conrad STROMBERG, et al., Respondents/Cross-Appellants, Kevin J. MOORE, et Cross/Respondent, and State Bank of Jefferson County, Appellant, and UMB Bank, n.a., and American Family Insurance Company, Respondent. No. ED 83912. Missouri Court of Appeals, Eastern District, Division Two. June 28, 2005. Motion for and/or Transfer Denied August 4, 2005. Application for Transfer Denied September 20, 2005. 27 Michael A. Campbell, Dawn Ann M. Johnson, Louis, MO, Appellant. Gregory D. O'Shea, St. Louis, MO, Nicholas G. Gasaway, Jr., MO, for Respondent. Motion for Rehearing and/or Transfer to Supreme Court August 2005. ROBERT G. DOWD, JR., Judge. State Bank of Jefferson County (State Bank) appeals from the awarding Conrad Stromberg (Stromberg) $80,000 in for negligence and conversion in connection with an $80,000 draft (Draft) by American Mutual Insurance Family) in with fire insurance On Bank argues the trial court erred in granting judgment in favor of Stromberg because (1) the election of remedies doctrine, Stromberg from claiming an interest in the Draft, (2) under Section 400.3-420, RSMo 2000,[1] liability for conversion limited to the interest the instrument, and (3) the doctrine of unavoidable consequences and the doctrine of laches prevent from making a claim against State Bank. On cross-appeal, Stromberg argues the trial court erred in denying damages by way of interest in its application of Section 408.040. We in part and reverse and remand in part. Viewed in the light most favorable to the judgment, the following facts were adduced at trial. Stromberg owned a plot of ground buildings in DeSoto, Missouri. In 1997, Stromberg sold this property to Kevin and Lucinda Moore (collectively referred as the Moores) for purchase price of $100,000, receiving $7,000 at closing and taking back a note and of Trust for $93,000. as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs). The note secured by the Deed Trust was payable over twenty years with monthly payments of $807.08. Also at the closing, a policy of insurance in the amount of $80,000 was issued on property naming Complete Auto Repair, the Moore's company, as the insured and Stromberg as the On June 1998, the buildings the mortgaged property were completely destroyed by fire. On June 8, 1998, American Family received a telephone proof of loss from its insured, the Moores d/b/a Complete Auto Repair. On July 13, 1998, American Family issued the Draft in the of which was the total amount of coverage under its and made the draft payable to Complete Repair and Stromberg. Kevin Moore received the by mail. Stromberg and the Moores met in late early August to discuss division of the Draft without reaching any as to division the amount the owed on Deed of Trust on the date of the fire was approximately $92,000.[3] On August 11, 1998, Kevin presented the Draft, purportedly endorsed payees, for deposit into his account at Bank. Stromberg testified he not endorse the Draft nor did he authorize Kevin Moore or Complete Auto Repair endorse the Draft for him. Linda Tucker, teller for Bank, testified relating to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the Draft but was not accompanied by Stromberg. Moore told Linda Tucker that Stromberg was his partner. Linda Tucker testified that she did not know and, at the time of deposit, she did require identification verification that Stromberg's signature was correct genuine. She further testified that there was a partnership resolution file for 29 Complete Auto Repair showing the signature of Kevin Moore but not that of Stromberg. In fact, Stromberg was never a part of the partnership resolution nor was his signature on record anywhere at State Bank. Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank and that he would have received any notice of activity. Richard Francis testified that the bank had no relationship with Stromberg did he know or did the bank have a financial interest the transaction Stromberg and Kevin Moore. Additionally, Francis testified the teller is required to know the endorser. There was no signature card on file bearing Stromberg's signature. Handwriting William Storer, testified that it opinion the signature of Stromberg was not genuine. Before discovering the Draft had been Stromberg foreclosed on the mortgaged property on November 10, 1998. At the time of foreclosure, he was not aware that Kevin Moore had the Draft into State Bank over the forgery of his signature. Stromberg took the estate at the foreclosure sale. Stromberg testified he did not know that Draft was deposited until after the foreclosure. Stromberg was never a customer of State Bank, nor did he have access to any financial information that he could have reviewed to know of the deposit. discovering the Draft had been deposited without his consent, Stromberg notified State Bank in of 1998 of the forgery later received a phone from Richard Francis asking why the forgery had not been reported sooner. Stromberg replied that he reported the forgery as soon as he out about Stromberg sent a letter to State Bank after it been the was forged. Stromberg demanded return of the Draft proceeds. Bank, through Richard Francis, denied Stromberg's demand. This case for trial. After trial, the trial court entered a judgment granting damages for conversion in favor Stromberg, but denying Stromberg way of interest from the of conversion. This appeal follows. On appeal, State Bank argues the erred in granting judgment in favor of Stromberg because under the election of doctrine, Stromberg is precluded from claiming an interest in the Draft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a means of recovering his damages, rather than claim against State Bank on the Draft, Stromberg elected his remedy now cannot pursue a claim for conversion against State In related points, Bank argues liability for conversion limited to a plaintiff's interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from a claim against State Bank. We disagree. In a court-tried of trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. We all evidence and inferences favorable to the judgment, and disregard all *30 contrary inferences. P & K Heating and Conditioning, v. Tusten Townhomes Redevelopment Corp., S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the trial court's factual findings if by substantial evidence in record. Id. election of remedies doctrine, a doctrine of estoppel, originates from the theory that "where a party has the right to pursue one two inconsistent remedies and he makes his election, institutes suit, and it final judgment, cannot thereafter pursue and inconsistent remedy." Whittom v. Alexander-Richardson Partnership, S.W.2d 504, 506 (Mo. banc 1993)(quoting Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935)). The purpose of election remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell Trust Co., 534 S.W.2d 83, (Mo. App.1976). "Where one elects to one or two or more inconsistent remedies, full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action." Skandia America Reinsurance Corp. v. Financial Guardian 857 S.W.2d 846 W.D.1993)(quoting U.S. Fidelity & Guaranty Co. v. Nat. Bank & Trust Co., 232 Mo.App. 412, 109 47 To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies whether one theory is repugnant to another. Breihan Bldg. Co.	170 s.w.3D 26 (2005) CoNrAD StROmBerg, Et Al., respondeNTs/CrOsS-apPELLANTs, V. keviN J. MoorE, Et AL., CrOsS/reSpoNdENt, aND sTAte BaNK oF JEFFERSOn cOuNTY, aPPEllAnt, aND umb bAnK, n.A., AnD AmERican famiLY iNsuraNce COMpAnY, reSPonDEnt. NO. Ed 83912. miSsoUrI cOurt OF apPEaLS, eAsTeRN dIStriCT, diVIsIoN two. JUnE 28, 2005. MoTioN foR RehEAriNg and/OR TraNsfER DeNiEd AugUsT 4, 2005. APpLIcATiOn For trAnSfeR denIED sEpTEmber 20, 2005. 27 michAEl A. cAMpbell, DawN ANn m. johNson, St. LOuIs, mO, For APpeLlanT. gREGORy d. O'ShEA, st. lOUiS, Mo, NiChOlAS G. gASawAy, jr., HIlLSBORO, MO, FoR resPoNDENT. mOtion FOR ReheARInG aND/OR trANsfer to suPrEME court dENIeD AUgUst 4, 2005. rOBerT G. dOwD, jr., JUdgE. STATE banK oF JEfFeRsOn CoUnTY (State bAnK) ApPeALs from The jUDgMENt awARdiNg conrad StrOMbeRg (strOMBErg) $80,000 iN damaGES fOR nEgLigENCe AnD cONvErsion iN COnnecTion wITh an $80,000 DRaft (dRAft) ISSuED by AMeRICAN FAmIly mUTUAl InSUrANCE CoMpANY (aMErican fAmiLY) iN cONneCtiOn wIth A FIRe inSuranCE CLaIm. ON aPpEaL, STaTE baNk ARGUEs tHE trIAl couRT 28 ERREd In GRantInG judGMent in FAVOr oF stROmBerg beCausE (1) UNdER THE electiON OF REmeDiES docTRiNE, StRoMbERG iS PREcLuDeD fROm ClaImING AN iNteRest iN the dRaft, (2) uNdER sECtioN 400.3-420, rSMo 2000,[1] LIaBilITy for COnvERSiOn is lImited To ThE PLAintiFf'S inTErEsT iN THe InstRuMENt, ANd (3) The DOcTRinE Of uNAVoIdabLe CoNSEQUeNCeS AnD THe DoCtRiNE oF lAChES pREVent sTroMBerG FrOM MAKinG a cLaIM AgainsT StAte bAnK. ON cross-AppeAl, STRoMBerG aRGueS THE trial Court eRRED iN DeNying Him daMAGEs by wAY OF INTerEst in Its ApplIcaTiOn OF secTIoN 408.040. wE afFiRm iN ParT ANd REVERse ANd rEMAND IN paRT. vIeweD In THE lighT MosT FavORAblE to ThE jUDGment, THE FolloWING FactS Were adDUCeD aT TRiAL. stRoMBeRg owNEd A plot oF gROUNd with bUildInGS loCatED iN dESotO, MisSOUri. iN 1997, strOmBERG solD ThIS PRopertY To KeviN and LUCinDa moOrE (ColLeCtiVElY rEFeRREd TO AS thE mOOres) FOR a purCHAse priCe Of $100,000, ReCeiVING $7,000 aT cloSIng and takiNG baCK a nOtE AnD DEEd oF TrUsT fOR $93,000. nAmEd AS bENEFICiarIes ON thE dEEd OF TRusT Were StrombeRG, Mary sTRoMbERG, hIs wife, SHaWN STROmBErG, His SOn, aND MArGareT StROMBERG, HiS DaUGHtER (CoLlectIvELY reFErrED tO as tHE sTRoMbergS). THE NOte SecureD bY tHe DEED OF tRusT WAs paYAbLE oVER TWenty yeARs wItH monTHLy pAyMEnTs Of $807.08. ALSo at the cLoSing, a POliCY oF fIRe INSURAncE In the AMouNt OF $80,000 WAs isSuED on tHE pROPeRTY NAMiNG complETe AUtO RePAIR, thE moORe'S COmPany, aS The InSUrEd AnD STrOMBeRg AS tHe mortGaGEE.[2] on junE 7, 1998, thE bUilDinGs on The MoRtgagED pRopErtY werE COMpLEteLy DeSTROYEd By firE. ON jUNE 8, 1998, AMeRICan famIlY REcEiVed a teLePHONe PrOoF oF LOSS frOM Its InsuREd, THE MOorES d/b/A ComPLEtE AutO repAir. on JulY 13, 1998, AmErIcAn FAMIlY IssUEd tHE dRAft In THE aMouNT OF $80,000 wHICH WAs tHE toTal aMOuNt oF covEraGE uNDER itS PoLiCY and MaDe the draFt PAyABLE To cOmplETe AUTo rEPAIr AND stRoMBeRG. keVIn mOoRe RECEIvED the dRaFt By MaiL. STroMberG aNd The mOORes MET IN lAtE JULY or EaRly AUGUSt TO dIscUss DivIsION of ThE DRaft withOut ReachiNg Any agrEEMENt As tO Its DiviSIOn BecAUSe tHE AmoUnT the moORes oWeD StROmBerG on THE dEed of TRuST oN THe daTE Of ThE FIRe wAS ApproXIMATELY $92,000.[3] oN AugUST 11, 1998, kevIn mOOrE pRESENtED ThE drAft, pUrPORTedly ENdORsEd By boTH payees, FoR dEpOsIT InTo hIs BuSiness AcCOUNt aT StATe BanK. sTRoMBerG teSTiFied He did NoT EnDorSE the draFt nOR dID He authoRIzE keVIN MOOre or COMpLetE aUTo RePair TO eNdOrsE ThE DrAFt FoR hiM. LINdA tUckeR, TeLler fOR staTE banK, TeStifiEd RelaTing To tHE dEpOsiT oF the DRafT BY kEvIN MoOrE. sHE TESTifIed ThAt kEVIN moore camE iNTo THe BanK witH tHE DRAFt but WAs NOT aCCoMpANied By stromBERg. kevIN MOOrE tOld LIndA TUckER tHat stromBerG Was hiS pArTNer. LindA TUCKEr tEsTIfiED tHaT She dID nOt kNow STRombERG And, aT THe TiME OF depoSiT, She DId not rEQuire iDENtiFIcAtion OR verifIcatIon THAT sTROmBerg's signatuRE wAs CoRrect ANd GenuiNe. She FurTHeR TEstiFied thAt THEre WaS A pArtNERsHIP rEsOlution oN FilE for 29 CoMpleTE aUtO RepAIR ShOwInG tHE SIGNAtURE oF kevIn mOORE BUt Not tHaT oF StROmBErg. iN FaCT, STrOmbeRg Was NEVER a pArT Of THE ParTNeRsHiP reSOlUTiOn nOr WAs His SIGnatURE On reCORD ANywherE aT staTE BanK. ricHARD fRANCiS, PReSIDENT of staTe BANK, TESTiFIEd tHat STROMBErG WAS noT A cUstomER oF THE BanK aND tHAT He WOuLd nOt hAVe ReCeivED anY nOTicE Of ACcoUNt ACtiViTY. RicHARD fRaNcIs also TeSTIfiEd thAT tHE baNK HaD no reLATioNsHIP WITh STROmBErG nor DID HE KNOW of oR DID tHe BANk HaVE a fINaNciAl inTEReST In THE trANsaCtioN betWEeN sTrOmbeRg And KEVIN Moore. adDiTiONalLy, RiChArD frANCis TESTiFied The TElleR iS ReQUIRED tO KNOw THE enDorSER. thEre WAs No sIGnaTuRe CaRd ON fiLe BeAriNG STroMBERG's sigNatURE. haNDwriTinG ExpERt, WILLiAM SToRer, TeStIFIED THAT It Was hiS oPINioN tHE sIGnATuRe OF sTRoMBERg wAs noT GenUInE. befoRE DiSCovEriNG The drAFT Had bEen dePoSiTeD, STrOMBerg FOrEcloseD on thE morTGaGED PrOPERty on NoVEmBeR 10, 1998. aT THE TIMe OF fOreclOsure, hE Was NOt aWArE thaT Kevin moORE hAD DepOSIted thE drAFt Into statE bANK OvEr ThE fORGErY oF hIS SignaTuRe. StROMbeRg Took baCK The ReAL EstAtE aT THE FoRecLOSurE sALe. STrombeRG tEstiFIed hE DID NOt knOw ThAT thE DRaFt WaS dePOSiteD Until AfTer The FOReclOsUrE. sTrOmbErg waS NEVer A cuSTomEr of STAte bAnk, NOr did HE haVE ACceSs TO any FInANCiAL InFORMaTIoN tHAt he coUld HAvE REViEwEd tO KnoW Of thE DEPOsIT. AFter diScOVeRiNG the DRafT HAD BeEn DEPOSITeD WItHoUt hIS cONseNT, STrOMbERg NoTIFiEd StATE baNK sometiME In novemBer Of 1998 OF the fORGERY And LaTEr ReCEiVeD A PHOne CalL fRom RIcHARd francIs aSkiNG WhY tHe ForGery haD NoT bEeN RepOrted SOOnEr. STrOmBERg REpliEd that He rEporTEd tHe ForgeRY As sOON aS HE fOUNd ouT aBout iT.[4] sTrOMBErg SeNT a letTer to state BANK AFTer iT haD beEn cONFIRMEd the dRAfT wAs forGEd. sTROmBErG deMaNdeD rETuRN oF ThE DraFt Proceeds. StATE BAnk, THROuGh rIChARd FRaNcIS, Denied STrOMbERG's DeMaND. thIS case WAs PrEsEnTEd foR tRiAL. After TRIAL, tHE tRIAl cOuRt ENteRED a juDgmeNt GrANting DAMAgES fOr coNVERsioN in Favor OF StRoMBeRg, BuT DeNyING sTRoMBERG DAmages bY way Of iNTeREst FrOm THE datE Of coNveRSION. thIS AppEal FollOWS. ON aPpeal, StATe banK arGuES ThE trIAl CourT eRred In graNtInG juDgMeNT IN faVor Of StrOMbeRG bEcause UndeR thE ELeCTioN of reMeDIes dOCTriNE, StroMBerg Is PRecludeD FrOm cLAiMing an InTErESt in the dRaFT. spECifICAllY, STate baNK ContENdS that BECAUse sTromBeRG ForeCLOSeD on the PrOperTY As a MeaNS OF REcOvERINg hIS daMaGeS, RaThEr than PUrSuIng a cLaIm agaInST STaTe BaNK oN THE DRaft, stRoMBErG eLECTEd HiS ReMedy ANd now CAnnot PUrSue A CLAiM fOr COnVerSioN AgaInsT StaTe BAnk. IN rELAtEd pOInts, StATE bank ArguES THAt LIABiliTy foR ConVERsiOn Is LIMITed tO a PLaIntiFF's InterEsT In thE InstruMEnt, AND That ThE DoCTRIne oF unaVOIdaBlE conseQueNCeS aNd THE DocTrINE OF LACHEs prEveNT StROmBerG fRoM mAkIng A ClAIM aGaInST STAtE bAnK. WE DIsAgREe. in a CoURT-tRieD CAsE, the jUdGmEnt Of ThE tRIal cOURT WILL bE AFfIrmED ON ApPeal uNLesS tHEre is NO sUBstanTIaL evIdencE TO sUPporT iT, It iS AGAiNST tHE wEiGht oF THe EviDeNCe, or it eRroNeoUSlY DeCLAREs Or APpliES the LAW. MURpHy v. CaRRoN, 536 S.W.2D 30, 32 (mO. banC 1976). ID. We aCcEPt aLL EviDEnCe And iNfERenceS fAVoRaBle TO The JudgmENT, ANd dIsReGard All 30 ContrARy inFereNCes. p & k hEATINg AnD AIr coNdITionInG, iNc. V. tuStEN tOwnhOmEs rEDeVelopMeNT cOrP., 877 S.W.2D 121, 123 (MO.APp. E.d.1994). WE arE bOUnd BY the tRiaL COURT's fACTual fiNDiNgs If SUPpOrTed by substantIal EvidEnCe in ThE ReCoRd. id. ThE electiOn oF reMEdiEs dOCTRiNe, a DoctRiNe OF EStOpPel, ORigINAtES frOM THE thEORy thAt "WhERe a pArty hAS THe riGHT to PuRsUe onE Of twO iNConSIStEnT reMeDIes anD HE MAkES hiS electION, InStITUtes sUIt, ANd PRoSecuTes it TO fINaL jUdgMEnt, hE cAnNOt tHEREAFter pURsuE AnoTHeR ANd INCOnsIstENt REMEdY." WHIttom V. AlExAnDer-richArDsOn PartnErShip, 851 s.w.2D 504, 506 (mo. baNC 1993)(QUOTiNg toOkeR, et al., v. mISSouri power & LIght cO., 336 mo. 592, 80 s.W.2D 691, 695 (1935)). tHE puRPose Of the ElEctioN of REMEdies DoctriNe IS TO PrEveNT DoUbLE REdrEss fOR a sINGle Wrong. TWElLman v. linDElL tRUst cO., 534 s.W.2D 83, 94 (MO. APp.1976). "wHerE onE eleCTS tO PUrsue OnE oR tWo OR moRE IncoNSISTeNT rEmEDIEs, wiTH FuLL KnOWledge OF AlL fACTS, aND receivEs FUll sAtIsFAcTioN tHEREfroM, hE can no LongeR asSErt hIS cAusE oF action." sKANDIa aMErICa ReINsuRanCe CORp. V. fINANciAL GuardIAN gROUp, 857 S.w.2d 843, 846 (MO.aPp. w.D.1993)(QUOtiNg U.s. FIdElitY & GuArAntY co. V. fIDELIty nAt. bank & TrUsT cO., 232 mo.aPP. 412, 109 S.W.2D 47 (1937)). to deTErMiNe Whether remeDIEs are incONSiSTenT, we lOOk at wHethER oNE TheORY alLeGes whAT THE OtHer dENIEs Or whetHeR One THEORY iS RepUGnant tO anothER. ELLSWORth breiHAn blDg. co.	170 S.W.3d 26(2005) Conrad STROMBERG, et al., Respondents/Cross-Appellants, v. KevinJ. MOORE, et al., Cross/Respondent, and State Bank of Jefferson County, Appellant, and UMB Bank, n.a., and American Family Insurance Company, Respondent.No. ED 83912. Missouri Court of Appeals,Eastern District, Division Two.June 28,2005. Motion for Rehearing and/or Transfer DeniedAugust 4,2005. Application for Transfer Denied September20, 2005. 27 Michael A. Campbell, Dawn Ann M. Johnson, St. Louis, MO, for Appellant. Gregory D. O'Shea, St. Louis, MO, Nicholas G. Gasaway, Jr., Hillsboro, MO,forRespondent. Motion for Rehearing and/or Transfer toSupreme Court Denied August 4, 2005. ROBERTG. DOWD, JR., Judge. State Bank of Jefferson County (State Bank) appeals from the judgment awarding Conrad Stromberg (Stromberg) $80,000 in damages for negligence and conversion in connection withan $80,000 draft (Draft) issued by American Family Mutual Insurance Company (American Family) in connection with afire insurance claim. On appeal, State Bank argues the trial court 28 erred in grantingjudgment infavorofStromberg because (1)under the election ofremedies doctrine, Stromberg is precludedfrom claiming an interest in the Draft, (2) under Section 400.3-420, RSMo 2000,[1] liability for conversion islimited to the plaintiff's interest in the instrument, and (3)the doctrine of unavoidableconsequencesand the doctrine of laches prevent Stromberg from making a claim against State Bank. Oncross-appeal, Stromberg argues the trialcourt erred in denyinghim damages byway ofinterest in its application of Section 408.040. We affirm in part and reverse andremand in part. Viewed in the light most favorable to the judgment,the following facts wereadduced at trial. Stromberg owned a plot of ground with buildings located in DeSoto, Missouri. In1997, Stromberg soldthis property to Kevin and Lucinda Moore (collectively referredto as the Moores) for apurchase price of $100,000, receiving$7,000at closing and taking back a note and Deed of Trust for $93,000. Named as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs). The note securedby the Deed ofTrust was payable over twenty years with monthly payments of $807.08. Also at the closing, a policy of fire insurance in the amount of $80,000 was issuedon thepropertynaming Complete Auto Repair, the Moore's company, as the insured and Stromberg as themortgagee.[2] On June 7,1998,the buildings onthe mortgaged property were completely destroyed byfire. On June 8, 1998, American Family received atelephone proof of loss from its insured, the Moores d/b/a CompleteAuto Repair. On July 13, 1998,American Family issued the Draft inthe amount of $80,000 which was the total amount of coverage under its policy and madethedraft payable to Complete Auto Repair and Stromberg. Kevin Moore received the draftby mail.Stromberg and the Moores met in late July or early August to discuss division of the Draft withoutreaching any agreement as to its division because the amount the Moores owed Stromberg on the Deed of Trust on the date ofthe fire was approximately $92,000.[3] On August 11, 1998, Kevin Moore presented theDraft, purportedly endorsed byboth payees, for deposit into his business account atState Bank. Strombergtestified he did not endorse the Draft nor did he authorize Kevin Moore or CompleteAuto Repairto endorse the Draft for him. Linda Tucker, teller for State Bank, testified relating to the depositof the Draftby Kevin Moore. She testified thatKevin Moore came into the bank with the Draft but was notaccompanied by Stromberg. Kevin Moore told LindaTuckerthat Stromberg was his partner. Linda Tucker testifiedthat she did not know Stromberg and,at the time of deposit, she did notrequire identification or verification that Stromberg's signaturewas correct and genuine.She further testified that there was a partnership resolution on filefor 29 Complete AutoRepair showing the signature of Kevin Moore but not that of Stromberg. In fact, Strombergwas never a partof thepartnership resolution nor was his signature on record anywhere at State Bank.Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank andthat he would not have received anynotice ofaccount activity.Richard Francis also testified that the bank had no relationship with Stromberg nor did heknow of or did the bank have a financial interest in the transaction between Stromberg and Kevin Moore. Additionally, Richard Francis testified the telleris requiredtoknow the endorser. Therewas no signature card on filebearing Stromberg's signature. Handwriting expert, William Storer, testifiedthat it was his opinion the signature of Stromberg was not genuine.Before discovering the Draft had been deposited, Stromberg foreclosed on the mortgaged property on November 10, 1998.At the time of foreclosure, hewas not aware that Kevin Moorehad deposited the Draft into State Bank over theforgery of his signature.Stromberg tookback the real estate at the foreclosure sale. Stromberg testified he did not know that the Draft was deposited until after the foreclosure. Stromberg was nevera customerof State Bank,nor did he have access to any financial information that he could have reviewed toknow of the deposit. After discovering the Drafthadbeen deposited without hisconsent, Strombergnotified State Bank sometime in November of 1998of the forgery and later received aphone call from Richard Francis asking why the forgeryhadnot been reported sooner. Stromberg replied thathe reported the forgery as soonashe found out aboutit.[4] Stromberg sent a letter to State Bank after it hadbeenconfirmed the Draft was forged.Stromberg demanded return ofthe Draft proceeds. State Bank, through Richard Francis, denied Stromberg's demand. This case was presented for trial. After trial, the trial court entered a judgment granting damagesfor conversion in favor of Stromberg, but denying Stromberg damages by way of interest from the date of conversion. This appeal follows.On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because under the electionof remedies doctrine, Stromberg is precluded from claiming an interest in theDraft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a meansof recovering his damages, ratherthan pursuinga claim againstState Bank onthe Draft, Stromberg elected his remedy and now cannot pursue a claim for conversionagainst State Bank. Inrelated points, State Bank argues that liability for conversion is limited to a plaintiff's interest intheinstrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim againstState Bank. We disagree. In a court-tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, itis againstthe weight of the evidence, or it erroneously declares orapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id.We accept allevidence and inferences favorable to the judgment, and disregard all 30 contrary inferences.P &K Heatingand Air Conditioning, Inc. v. Tusten TownhomesRedevelopment Corp., 877 S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the trial court's factual findings if supportedby substantial evidencein the record. Id.The electionof remedies doctrine, a doctrine of estoppel, originates from the theorythat "where aparty has the right to pursue one of two inconsistent remedies andhemakes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafterpursue another and inconsistent remedy." Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506 (Mo. banc 1993)(quoting Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935)).The purpose of the election of remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell TrustCo.,534 S.W.2d83, 94 (Mo.App.1976)."Where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action."Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S.W.2d 843, 846 (Mo.App. W.D.1993)(quoting U.S. Fidelity & Guaranty Co. v. Fidelity Nat. Bank & TrustCo., 232 Mo.App. 412, 109 S.W.2d 47 (1937)). To determine whether remedies are inconsistent,we look at whether onetheory alleges what theother denies or whether one theory is repugnant to another. Ellsworth Breihan Bldg. Co.	170 S.W.3d 26 (2005) Conrad STROMBERG, _et_ _al.,_ Respondents/Cross-Appellants, v. Kevin J. MOORE, et al., Cross/Respondent, and State Bank of Jefferson County, Appellant, _and_ UMB Bank, n.a., _and_ _American_ _Family_ Insurance Company, _Respondent._ _No._ ED 83912. _Missouri_ Court _of_ _Appeals,_ Eastern _District,_ _Division_ _Two._ June 28, 2005. Motion _for_ Rehearing and/or Transfer Denied August 4, 2005. Application for Transfer _Denied_ _September_ 20, 2005. 27 Michael A. Campbell, _Dawn_ _Ann_ _M._ _Johnson,_ St. Louis, MO, _for_ Appellant. Gregory D. _O'Shea,_ St. Louis, _MO,_ Nicholas _G._ Gasaway, _Jr.,_ Hillsboro, MO, for Respondent. Motion for Rehearing _and/or_ Transfer _to_ Supreme Court Denied August 4, _2005._ ROBERT G. DOWD, _JR.,_ Judge. State Bank of Jefferson County (State Bank) appeals from _the_ judgment awarding Conrad Stromberg (Stromberg) $80,000 in _damages_ _for_ negligence and conversion in _connection_ with an $80,000 draft (Draft) _issued_ by _American_ Family Mutual Insurance _Company_ (American Family) in connection with a fire insurance claim. On appeal, State _Bank_ argues _the_ trial _court_ 28 erred _in_ granting judgment _in_ favor of Stromberg because (1) under the election of _remedies_ doctrine, Stromberg is precluded _from_ claiming an interest in the _Draft,_ (2) under _Section_ _400.3-420,_ RSMo 2000,[1] liability _for_ conversion is limited to the plaintiff's interest in _the_ _instrument,_ and (3) the _doctrine_ of unavoidable consequences and _the_ _doctrine_ _of_ laches prevent Stromberg from _making_ a claim _against_ State Bank. On _cross-appeal,_ Stromberg _argues_ _the_ trial court _erred_ in denying him damages by way of interest in its _application_ _of_ Section 408.040. We affirm in part and reverse _and_ remand _in_ part. _Viewed_ in the light most favorable _to_ _the_ judgment, _the_ following _facts_ were adduced at trial. Stromberg owned a plot of ground with buildings _located_ in DeSoto, Missouri. In 1997, Stromberg sold this property _to_ Kevin _and_ Lucinda Moore _(collectively_ _referred_ to _as_ the Moores) for a purchase price of $100,000, receiving $7,000 at closing and taking back _a_ note and Deed of Trust for $93,000. Named as beneficiaries on _the_ Deed of Trust were Stromberg, Mary Stromberg, his _wife,_ _Shawn_ Stromberg, his son, and Margaret _Stromberg,_ his daughter (collectively referred to _as_ the Strombergs). The _note_ secured by the Deed _of_ _Trust_ was payable over twenty years with monthly payments of $807.08. _Also_ at _the_ closing, a policy of fire insurance in the amount of $80,000 was issued on the property naming Complete Auto Repair, the Moore's company, as the insured and Stromberg _as_ the mortgagee.[2] On June 7, 1998, the _buildings_ on _the_ mortgaged property _were_ completely destroyed by fire. _On_ June 8, 1998, American Family received a telephone proof of loss from its _insured,_ the Moores d/b/a Complete _Auto_ Repair. On July 13, 1998, American _Family_ issued the Draft in the _amount_ _of_ $80,000 which was the _total_ amount of _coverage_ under its policy and made the draft payable _to_ Complete Auto Repair and _Stromberg._ Kevin Moore received the draft by mail. _Stromberg_ and the Moores met in late July _or_ early _August_ _to_ discuss _division_ of the Draft _without_ _reaching_ any agreement as to its division because the amount _the_ _Moores_ owed _Stromberg_ on the Deed of Trust _on_ the date of _the_ fire was _approximately_ $92,000.[3] _On_ August 11, _1998,_ Kevin Moore presented the Draft, purportedly endorsed by both payees, _for_ deposit _into_ his business account at State Bank. Stromberg testified he _did_ not endorse the Draft nor did he authorize Kevin Moore _or_ Complete Auto Repair to endorse the Draft for him. Linda _Tucker,_ teller for State Bank, testified _relating_ to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the _Draft_ _but_ was not _accompanied_ by Stromberg. _Kevin_ _Moore_ told Linda _Tucker_ _that_ Stromberg was his partner. Linda Tucker _testified_ that _she_ did _not_ know Stromberg and, at the time of _deposit,_ she did _not_ require identification or verification that Stromberg's signature was correct and genuine. She further testified that _there_ _was_ a partnership resolution on _file_ for 29 _Complete_ _Auto_ _Repair_ showing the signature of Kevin Moore but not _that_ of Stromberg. In fact, Stromberg _was_ never a part of the partnership resolution nor was his signature _on_ _record_ anywhere _at_ State Bank. Richard Francis, president of State _Bank,_ testified that Stromberg was not a customer of the bank and that he would not have received any notice of account activity. Richard Francis also testified _that_ the _bank_ had no _relationship_ with Stromberg nor did he know of or _did_ the bank have a _financial_ interest in the _transaction_ between _Stromberg_ _and_ Kevin Moore. Additionally, Richard Francis testified the teller is required to _know_ the endorser. _There_ was no signature card on file bearing Stromberg's signature. Handwriting expert, William _Storer,_ testified that _it_ was his opinion the signature _of_ Stromberg was not _genuine._ Before discovering the Draft _had_ been deposited, Stromberg _foreclosed_ on _the_ mortgaged property on November 10, 1998. _At_ the time of foreclosure, he was not aware that Kevin Moore _had_ deposited the _Draft_ into _State_ _Bank_ over the _forgery_ of _his_ _signature._ Stromberg took back _the_ real estate at _the_ foreclosure sale. Stromberg testified he did not know that _the_ Draft _was_ deposited until after the foreclosure. Stromberg was never a customer _of_ State Bank, nor did he have access to any _financial_ information that _he_ could have reviewed to _know_ of the deposit. After discovering _the_ _Draft_ had _been_ _deposited_ without his consent, Stromberg notified State _Bank_ sometime in _November_ of 1998 _of_ the forgery and later received a phone _call_ from Richard Francis _asking_ why the forgery had not _been_ reported sooner. Stromberg replied that he reported _the_ forgery _as_ soon as he found out about it.[4] Stromberg _sent_ a letter to State Bank _after_ _it_ had _been_ _confirmed_ the Draft was _forged._ Stromberg _demanded_ return of _the_ Draft proceeds. State Bank, through Richard Francis, denied Stromberg's _demand._ This case was presented for trial. After trial, the _trial_ court entered a judgment granting damages for conversion in favor _of_ Stromberg, but denying _Stromberg_ _damages_ by way of interest from the _date_ _of_ conversion. This appeal follows. On appeal, State _Bank_ argues the trial _court_ erred in granting judgment in favor _of_ Stromberg because _under_ the election _of_ remedies doctrine, Stromberg is precluded from _claiming_ an interest _in_ the Draft. Specifically, State Bank contends _that_ _because_ Stromberg _foreclosed_ _on_ the property as a means of recovering _his_ damages, rather than _pursuing_ a claim against State Bank on the _Draft,_ Stromberg elected his remedy and now cannot _pursue_ _a_ _claim_ for conversion against State _Bank._ In related points, State Bank argues that _liability_ for conversion is limited to _a_ _plaintiff's_ interest _in_ _the_ instrument, and _that_ _the_ _doctrine_ of unavoidable consequences and _the_ doctrine of _laches_ prevent Stromberg _from_ making a _claim_ _against_ _State_ Bank. We disagree. _In_ a court-tried case, the judgment _of_ the _trial_ court will be affirmed on appeal unless _there_ _is_ no substantial evidence to support it, it _is_ _against_ the weight _of_ the evidence, or _it_ erroneously declares or _applies_ the _law._ Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. We accept _all_ evidence _and_ _inferences_ favorable to the _judgment,_ and disregard all 30 contrary inferences. P & K Heating and Air _Conditioning,_ Inc. v. Tusten _Townhomes_ Redevelopment Corp., _877_ S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the _trial_ court's factual findings if supported by substantial evidence in _the_ record. Id. The election of remedies _doctrine,_ _a_ doctrine of estoppel, originates from _the_ theory that "where _a_ party has the right to pursue one of two _inconsistent_ remedies and he makes his _election,_ institutes _suit,_ _and_ prosecutes _it_ to final judgment, he _cannot_ _thereafter_ pursue another and inconsistent remedy." Whittom v. Alexander-Richardson Partnership, 851 S.W.2d _504,_ 506 (Mo. banc 1993)(quoting _Tooker,_ et _al.,_ v. Missouri Power _&_ _Light_ Co., 336 Mo. 592, 80 S.W.2d 691, _695_ (1935)). The _purpose_ of the _election_ _of_ remedies doctrine is to _prevent_ double redress for a single wrong. Twellman v. Lindell Trust Co., 534 _S.W.2d_ 83, 94 (Mo. App.1976). "Where _one_ _elects_ to _pursue_ one or _two_ or more inconsistent _remedies,_ with full knowledge of all facts, _and_ receives full satisfaction therefrom, he can no longer assert his cause of action." Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S.W.2d 843, 846 (Mo.App. W.D.1993)(quoting _U.S._ Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust _Co.,_ 232 Mo.App. 412, 109 S.W.2d 47 _(1937))._ To determine _whether_ remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one _theory_ is repugnant to another. Ellsworth Breihan Bldg. Co.
774 F.2d 456 Helen PASSARO, Individually and as Executrix of the Estateof Ramon Passaro, Appellee,v.The UNITED STATES, Appellant. Appeal No. 85-927. United States Court of Appeals,Federal Circuit. Sept. 25, 1985. Richard F. Silber, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellant. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, and Sandra P. Spooner. Major Thomas G. Bowe, Major Emmett L. Battles, Office of The Judge Advocate Gen., Dept. of the Army, Washington, D.C., of counsel. Robert T. Seiwell, Media, Pa., argued, for appellee. Before DAVIS, BENNETT, and BISSELL, Circuit Judges. BENNETT, Circuit Judge. 1 The government appeals a judgment entered against it on October 23, 1984, by the United States Claims Court following its opinions in Passaro v. United States, 4 Cl.Ct. 395 (1984), and 5 Cl.Ct. 754 (1984). The judgment awarded the widow of a military retiree an accrued annuity and future benefits under the Armed Forces Survivor Benefit Plan, Pub.L. No. 92-425, 86 Stat. 706-713 (1972).1 The appeal presents narrow but significant issues of Claims Court jurisdiction and statutory interpretation. We vacate and remand.I 2 The Survivor Benefit Plan (SBP) was enacted on September 21, 1972, to establish a new system of benefits for the survivors of military retirees, replacing the Retired Serviceman's Family Protection Plan (RSFPP). The latter, a self-financing program permitting a service member to provide a percentage of his retired pay as an annuity for his survivors, had proved inadequate, being invoked by only 15 percent of the eligible military personnel. 3 The SBP employed a new concept which made automatic the rights of survivors of military members who retired on or after September 21, 1972, unless the member affirmatively chose not to participate in the plan. If the member elected not to participate in the plan the statute required that his spouse be notified of the decision. Section 1448(a). This section also made an election not to participate in the plan irrevocable if not revoked before the date on which the member first became entitled to retired pay. 4 Major Ramon Passaro, appellee's husband, retired from the United States Army on November 1, 1968. He elected not to participate in the RSFPP, choosing instead to receive full retirement pay. Those who, like Major Passaro, had retired before the SBP became law were not, however, left out altogether. While it was provided in section 1455(3)(a) that the SBP applies "to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act," it was further provided in section 1455(3)(b) that "[a]ny person who is entitled to retired or retainer pay on the effective date of this Act may elect to participate in the Survivor Benefit Plan ... before the first anniversary of that date." 5 The Department of the Army contacted all service members who had previously retired and explained to them the benefits and procedures provided by the Survivor Benefit Plan. This was done on several occasions. A bulletin was first sent out describing the SBP. The bulletin was followed by a circular and then by a letter which included a form, which when filled out and returned would extend the benefits of the SBP to those who were already retired. A "final notice" provided a "box" to check on a postal card indicating the retiree's intention. Major Passaro received these communications and affirmatively elected not to participate in the SBP by checking the box indicating his intention. He signed and dated the card on September 4, 1973, which was within the then-existing time limit for a binding answer. 6 Four years after Major Passaro's death, his widow inquired about survivor benefits and was told by the Army that her husband had elected to receive his full retirement pay rather than to provide her with a survivor's annuity through reduced retirement pay. Her successful suit in the Claims Court and this appeal by the government followed. II 7 The Claims Court agreed with Mrs. Passaro that the requirement that the spouse be notified of a nonelection of SBP benefits applies to service members who retired both before and after the effective date of the 1972 Act. The court, thus, assuming jurisdiction of a claim for money damages believed to be due, undertook to fashion an equitable remedy for Mrs. Passaro by deeming her late husband to be a member of the SBP. We think that the court exceeded its jurisdiction and misread the statute. 8 The Claims Court reached its judgment by writing into the Act a notice requirement it does not have. Congress knew how to say whether a spouse should be notified of a nonelection of survivor benefits by the military member. Section 1448(a) required notification but section 1455(3)(a) specified that it applied to "any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act." In other words, section 1448(a) applies to a service member who is automatically enrolled in the SBP because he retires on or after the effective date of the Act, September 21, 1972. Section 1448(a) reads in pertinent part: 9 (a) The Plan applies to a person who is married or has a dependent child when he becomes entitled to retired or retainer pay unless he elects not to participate in the Plan before the first day for which he is eligible for that pay. If a person who is married elects not to participate in the Plan at the maximum level, that person's spouse shall be notified of the decision. 10 Thus, only a service member automatically enrolled by the Act could make an election not to participate before the first day for which he is eligible for retired or retainer pay. Those entitled to pay before September 21, 1972, were permitted by Congress to elect to participate rather than not to participate. The notice provision, therefore, does not apply to a service member who is already entitled to retired or retainer pay. No principle of statutory construction permits such a notice provision to be implied where it was excluded by Congress. 11 Our views coincide with the administrative interpretation made and consistently applied in the 13 years since enactment of the SBA in 1972. Importantly, it agrees also with the intent of Congress which has amended the SBP five times and has never seen fit to alter the interpretation given administratively to the spousal notice provisions with respect to pre-SBP retirees.2 This is persuasive evidence to support our interpretation of congressional intent in the matter. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974). 12 The Claims Court has given weight to tangential remarks of two congressmen to support its interpretation of legislative history. We have carefully examined the entire legislative history including the statements alluded to and reach a contrary conclusion from the court below. There is no support for concluding that Congress meant to treat alike, for spousal notice purposes, those who retired both before and after enactment of the SBP. There is no statement in the hearings and congressional reports on this legislation suggesting that the United States would be liable to suit in money damages with respect to a claim by a widow of a pre-SBP retiree whose husband failed to enroll in the plan. Pertinent language of other committee members and the House and Senate Reports clearly differentiate between the pre-SBP retiree, and the service member yet to retire, on the points about spousal notice and election in and election out of the plan. Respectfully, the Claims Court has misread the record and the statute itself. We hold that the administrative interpretation has been both reasonable and correct. The court should have taken a less expansive view of the claim by inquiring whether the administrative interpretation of the law was reasonable rather than whether it was the interpretation the court would have desired. III 13 The judgment below was premised on jurisdiction which did not exist. It was held that the Tucker Act, 28 U.S.C. Sec. 1491 (1982), provided the necessary jurisdiction here and reliance was placed on the holding in Barber v. United States, 676 F.2d 651, 230 Ct.Cl. 287 (1982). That case does not help Mrs. Passaro. In Barber, the claimant was the widow of a service member who, unlike Mrs. Passaro's husband, retired after the enactment of the SBP and, therefore, was automatically enrolled in the plan. Sergeant Barber elected out of the plan on the eve of his retirement and no notice was given to his spouse as required by the statute. The Court of Claims held that Mrs. Barber thus had a Tucker Act claim for money due under a substantive right created by the SBA statute, as clarified by legislative history. Here, however, only an affirmative decision by Major Passaro to participate in the plan would create a vested interest in his widow upon his death. The factual and legal situations in the two cases are obviously dissimilar. Absent a presently due money claim, therefore,	774 pub. 2d 456 helen passaro, individually and as executrix of the estateof ramon passaro, appellee, v. the united states, appellant. appeal no. 85 - 927. united states court of appeals, federal circuit. sept. 25, 1985. richard k. silber, commercial litigation branch, bench. of justice, washington, d. c., argued, for appellant. with him on brief were richard k. willard, acting asst. atty. gen., david m. cohen, director, and sandra p. miller. major thomas g. bowe, major emmett l. battles, office of the judge advocate gen., dept. of the army, washington, d. c., of counsel. robert t. seiwell, media, pa., argued, for appellee. before davis, bennett, and johnson, circuit judges. bennett, circuit judge. 1 federal government appeals a judgment entered against it on october 23, 1984, by the united states claims court following its opinions in passaro v. united states, 4 cl. ct. 395 ( 1984 ), and 5 cl. ct. 754 ( 1984 ). the judgment awarded the widow of a military retiree an accrued annuity towards future benefits under the armed forces survivor benefit plan, pub. l. no. 92 - 425, 86 stat. 706 - 713 ( 1972 ). 1 the appeal presents narrow but significant issues of claims court jurisdiction and statutory interpretation. we vacate and remand. i 2 the survivor benefit plan ( sbp ) was enacted on september 21, 1972, to establish a new system of benefits for the survivors of military retirees, replacing the retired serviceman ' s family protection program ( rsfpp ). the latter, a self - financing program permitting a service member to provide a percentage of his retired pay as an annuity for his survivors, had proved inadequate, being invoked by only 15 percent of the eligible military personnel. 3 the sbp employed a new concept effectively made automatic the rights of survivors of military members who retired on petition after september 21, 1972, unless the member affirmatively chose not to participate in the plan. if the member elected not to participate in the plan the statute required that his spouse be notified of the decision. section 1448 ( a ). this section also made an election not to participate in the plan irrevo ##cable if not revoked before the date on which the member first became entitled to retired pay. 4 major ramon passaro, appellee ' s husband, retired from the united states army on november 1, 1968. he elected not to participate in the rsfpp, choosing instead to receive full retirement pay. those who, like major passaro, had retired before the sbp became law were not, however, left out altogether. while it was provided in section 1455 ( 3 ) ( a ) that the sbp applies " to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this act, " it was further provided in section 1455 ( 3 ) ( b ) that " [ a ] ny person who is entitled to retired or retainer pay on the effective date of this act may elect to participate in the survivor benefit plan... before the first anniversary of that date. " 5 the department of the army contacted all service members who had previously retired and explained to them the benefits and procedures provided by the survivor benefit plan. this was done on several occasions. a bulletin was first sent out describing the sbp. the bulletin was followed by a circular and then by a letter which included a form, which when filled out and returned would extend the benefits of the sbp to those who were already retired. a " final notice " provided a " box " to check on a postal card indicating the retiree ' s intention. major passaro received these communications and affirmatively elected not to participate in the sbp by checking the box indicating his intention. he signed and dated the card on september 4, 1973, which was within the then - existing time limit for a binding answer. 6 four years after major passaro ' s death, his widow inquired about survivor benefits and was told by the army that her husband had elected to receive his full retirement pay rather than to provide her with a survivor ' s annuity through reduced retirement pay. her successful suit in the claims court and this appeal by the government followed. ii 7 the claims court agreed with mrs. passaro that the requirement that the spouse be notified of a nonelection of sbp benefits applies to service members who retired both before and after the effective date of the 1972 act. the court, thus, assuming jurisdiction of a claim for money damages believed to be due, undertook to fashion an equitable remedy for mrs. passaro by deeming her late husband to be a member of the sbp. we think that the court exceeded its jurisdiction and misread the statute. 8 the claims court reached its judgment by writing into the act a notice requirement it does not have. congress knew how to say whether a spouse should be notified of a nonelection of survivor benefits by the military member. section 1448 ( a ) required notification but section 1455 ( 3 ) ( a ) specified that it applied to " any person who initially becomes entitled to retired or retainer pay on or after the effective date of this act. " in other words, section 1448 ( a ) applies to a service member who is automatically enrolled in the sbp because he retires on or after the effective date of the act, september 21, 1972. section 1448 ( a ) reads in pertinent part : 9 ( a ) the plan applies to a person who is married or has a dependent child when he becomes entitled to retired or retainer pay unless he elects not to participate in the plan before the first day for which he is eligible for that pay. if a person who is married elects not to participate in the plan at the maximum level, that person ' s spouse shall be notified of the decision. 10 thus, only a service member automatically enrolled by the act could make an election not to participate before the first day for which he is eligible for retired or retainer pay. those entitled to pay before september 21, 1972, were permitted by congress to elect to participate rather than not to participate. the notice provision, therefore, does not apply to a service member who is already entitled to retired or retainer pay. no principle of statutory construction permits such a notice provision to be implied where it was excluded by congress. 11 our views coincide with the administrative interpretation made and consistently applied in the 13 years since enactment of the sba in 1972. importantly, it agrees also with the intent of congress which has amended the sbp five times and has never seen fit to alter the interpretation given administratively to the spousal notice provisions with respect to pre - sbp retirees. 2 this is persuasive evidence to support our interpretation of congressional intent in the matter. nlrb v. bell aerospace co., 416 u. s. 267, 274 - 75, 94 s. ct. 1757, 1761 - 62, 40 l. ed. 2d 134 ( 1974 ). 12 the claims court has given weight to tangential remarks of two congressmen to support its interpretation of legislative history. we have carefully examined the entire legislative history including the statements alluded to and reach a contrary conclusion from the court below. there is no support for concluding that congress meant to treat alike, for spousal notice purposes, those who retired both before and after enactment of the sbp. there is no statement in the hearings and congressional reports on this legislation suggesting that the united states would be liable to suit in money damages with respect to a claim by a widow of a pre - sbp retiree whose husband failed to enroll in the plan. pertinent language of other committee members and the house and senate reports clearly differentiate between the pre - sbp retiree, and the service member yet to retire, on the points about spousal notice and election in and election out of the plan. respectfully, the claims court has misread the record and the statute itself. we hold that the administrative interpretation has been both reasonable and correct. the court should have taken a less expansive view of the claim by inquiring whether the administrative interpretation of the law was reasonable rather than whether it was the interpretation the court would have desired. iii 13 the judgment below was premised on jurisdiction which did not exist. it was held that the tucker act, 28 u. s. c. sec. 1491 ( 1982 ), provided the necessary jurisdiction here and reliance was placed on the holding in barber v. united states, 676 f. 2d 651, 230 ct. cl. 287 ( 1982 ). that case does not help mrs. passaro. in barber, the claimant was the widow of a service member who, unlike mrs. passaro ' s husband, retired after the enactment of the sbp and, therefore, was automatically enrolled in the plan. sergeant barber elected out of the plan on the eve of his retirement and no notice was given to his spouse as required by the statute. the court of claims held that mrs. barber thus had a tucker act claim for money due under a substantive right created by the sba statute, as clarified by legislative history. here, however, only an affirmative decision by major passaro to participate in the plan would create a vested interest in his widow upon his death. the factual and legal situations in the two cases are obviously dissimilar. absent a presently due money claim, therefore,	774 F. 2d 456 Helen PASSARO, Individually and as Executrix of the Estateof Ramon Passaro, Appellee, v. The UNITED STATES, Appellant. Appeal No. 85 - 927. United States Court of Appeals, Federal Circuit. Sept. 25, 1985. Richard F. Silber, Commercial Litigation Branch, Dept. of Justice, Washington, D. C. , argued, for appellant. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen. , David M. Cohen, Director, and Sandra P. Spooner. Major Thomas G. Bowe, Major Emmett L. Battles, Office of The Judge Advocate Gen. , Dept. of the Army, Washington, D. C. , of counsel. Robert T. Seiwell, Media, Pa. , argued, for appellee. Before DAVIS, BENNETT, and BISSELL, Circuit Judges. BENNETT, Circuit Judge. 1 The government appeals a judgment entered against it on October 23, 1984, by the United States Claims Court following its opinions in Passaro v. United States, 4 Cl. Ct. 395 (1984 ), and 5 Cl. Ct. 754 (1984 ). The judgment awarded the widow of a military retiree an accrued annuity and future benefits under the Armed Forces Survivor Benefit Plan, Pub. L. No. 92 - 425, 86 Stat. 706 - 713 (1972 ). 1 The appeal presents narrow but significant issues of Claims Court jurisdiction and statutory interpretation. We vacate and remand. I 2 The Survivor Benefit Plan (SBP) was enacted on September 21, 1972, to establish a new system of benefits for the survigo$s of military retirees, replacing the Retired Serviceman ' s Family Protection Plan (RSFPP ). The latter, a self - financing program permitting a service member to provide a percentage of his retired pay as an annuity for his survivors, had proved inadequate, being invoked by only 15 percent of the eligible military personnel. 3 The SBP employed a new concept which made automatic the rights of survivors of military members who retired on or after September 21, 1972, unless the member affirmatively chose not to participate in the plan. If the member elected not to participate in the plan the statute required that his spouse be notified of the decision. Section 1448 (a ). Tmia section also made an election not to participate in the plan irrevocable if not revoked before the date on which the member first became entitled to retired pay. 4 Major Ramon Passaro, appellee ' s husband, retired from the United States Army on November 1, 1968. He elected not to participate in the RSFPP, choosing instead to receive full retirement pay. Those who, like Major Passaro, had retired before the SBP becA,e law were not, however, left out altogether. While it was provided in section 1455 (3) (a) that the SBP applies " to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act, " it was further provided in section 1455 (3) (b) that " [a] ny person who is entitled to retired or retainer pay on the effective date of this Act may elect to participate in the Survivor Benefit Plan. .. before the first anniversary of that date. " 5 The Department of the Army contacted all service members who had previously retired and explained to them the benefits and procedures provided by the Survivor Benefit Plan. This was done on several occasions. A bulletin was first sent out describing the SBP. The bulletin was followed by a circular and then by a le5te# which included a form, which when filled out and returned would extend the benefits of the SBP to those who were already retired. A " final notice " provided a " box " to check on a postal card indicating the retiree ' s intention. Major Passaro received these communications and affirmatively elected not to participate in the SBP by checking the box indicating his intention. He signed and dated the card on September 4, 1973, which was within the then - existing time limit for a binding answer. 6 Four years after Major Passaro ' s death, his widow inquired about survivor benefits and was told by the Army that her husband had elected to receive his full retirement pay rather than to provide her with a survivor ' s annuity through reduced retirement pay. Her successful suit in the Claims Court and this appeal by the government followed. II 7 The Claims Court agreed with Mrs. Passaro that the requirement that the spouse be notified of a nonelection of SBP benefits applies to service members who retired both before and after the effective date of the 1972 Act. The court, thus, assuming jurisdiction of a claim for money damages believed to be due, undertook to fashion an equitable remedy for Mrs. Passaro by deeming her late husband to be a member of the SBP. We think that the court exceeded its jurisdiction and misread the statute. 8 The Claims Court reached its judgment by writing into the Act a notice requirement it does not have. Congress knew how to say whether a spouse should be notified of a nonelection of survivor benefits by the military member. Section 1448 (a) required notification but section 1455 (3) (a) specified that it applied to " any person who initially bFcPmes entitled to retired or retainer pay on or after the effective date of this Act. " In other words, section 1448 (a) applies to a service member who is automatically enrolled in the SBP because he retires on or after the effective date of the Act, September 21, 1972. Section 1448 (a) reads in pertinent part: 9 (a) The Plan applies to a person who is married or has a dependent child when he becomes entitled to retired or retainer pay unless he elects not to participate in the Plan before the first day for which he is eligible for that pay. If a person who is married elects not to participate in the Plan at the maximum level, that person ' s spouse shall be notified of the decision. 10 Thus, only a service member automatically enrolled by the Act could make an election not to participate before the first day for which he is eligible for retired or retainer pay. Those entitled to pay befo4W September 21, 1972, were permitted by Congress to elect to participate rather than not to participate. The notice provision, therefore, does not apply to a service member who is already entitled to retired or retainer pay. No principle of statutory construction permits such a notice provision to be implied where it was excluded by Congress. 11 Our views coincide with the administrative interpretation made and consistently applied in the 13 years since enactment of the SBA in 1972. Importantly, it agrees also with the intent of Congress which has amended the SBP five times and has never seen fit to alter the interpretation given administratively to the spousal notice provisions with respect to pre - SBP retirees. 2 This is persuasive evidence to support our interpretation of congressional intent in the matter. NLRB v. Bell Aerospace Co. , 416 U. S. 267, 274 - 75, 94 S. Ct. 1757, 1761 - 62, 40 L. Ed. 2d 134 (1974 ). 12 The Claims Court has given weight to tangential remarks of two congressmen to support its interpretation of legislative history. We have carefully examined the entire legislative history including the statements alluded to and reach a contrary conclusion from the court below. There is no support for concluding that Congress meant to treat alike, for spousal notice purposes, those who retired both before and after enactment of the SBP. There is no statement in the hearings and congressional reports on this legislation suggesting that the United States would be liable to suit in money damages with respect to a claim by a widow of a pre - SBP retiree whose husband faKlew to enroll in the plan. Pertinent language of other committee members and the House and Senate Reports clearly differentiate between the pre - SBP retiree, and the service member yet to retire, on the points about spousal notice and election in and election out of the plan. Respectfully, the Claims Court has misread the record and the statute itself. We hold that the administrative interpretation has been both reasonable and correct. The court should have taken a less expansive view of the claim by inquiring whether the administrative interpretation of the law was r#asonxble rather tjaG whether it was the interpretation the court would have desired. III 13 The judgment below was premised on jurisdiction which did not exist. It was held that the Tucker Act, 28 U. S. C. Sec. 1491 (1982 ), provided the necessary jurisdiction here and reliance was placed on the holding in Barber v. United States, 676 F. 2d 651, 230 Ct. Cl. 287 (1982 ). That case does not help Mrs. Passaro. In Barber, the claimant was the widow of a service <emb2r who, unlike Mrs. Passaro ' s husband, retired after the enactment of the SBP and, therefore, was automatically enrolled in the plan. Sergeant Barber elected out of the plan on the eve of his retirement and no notice was given to his spouse as required by the statute. The Court of Claims held that Mrs. Barber thus had a Tucker Act claim for money due under a substantive right created by the SBA statute, as clarified by legislative history. Here, however, only an affirmative decision by Major Passaro to participate in the plan would create a vested interest in his widow upon his death. The factual and legal situations in the two cases are obviously dissimilar. Absent a presently due money claim, therefore,	774 F.2d 456 Helen Individually as Executrix the Estateof Ramon Passaro, Appellee,v.The UNITED STATES, Appellant. Appeal No. United States Court of Appeals,Federal Circuit. Sept. 25, 1985. Richard F. Commercial Litigation Branch, of Justice, Washington, D.C., argued, for appellant. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, and Sandra P. Major Thomas G. Bowe, Major Emmett L. Battles, Office of The Judge Gen., Dept. of the Army, Washington, D.C., of counsel. Robert T. Seiwell, Media, Pa., argued, for appellee. Before DAVIS, BENNETT, BISSELL, Circuit Judges. BENNETT, Circuit Judge. 1 The appeals a judgment entered on October 23, 1984, by the United States Claims Court following its opinions in Passaro v. United States, 4 Cl.Ct. 395 (1984), and 5 Cl.Ct. 754 (1984). The judgment awarded the widow of a military retiree an accrued annuity and future benefits under the Armed Forces Benefit Plan, No. 92-425, 86 Stat. 706-713 (1972).1 The appeal presents narrow but significant issues of Claims Court jurisdiction and statutory interpretation. We vacate and remand.I 2 Survivor Benefit Plan (SBP) was enacted on September 21, 1972, to establish a new system of benefits for the survivors of military retirees, the Retired Serviceman's Family Protection Plan (RSFPP). latter, a self-financing program permitting a service member to provide a percentage of his retired pay as an annuity his survivors, had proved inadequate, being invoked by only 15 percent of the eligible military personnel. 3 SBP employed a new concept which automatic the rights of survivors of military members who retired on after September 21, 1972, unless the member affirmatively chose not to participate in plan. If the member elected to participate in the plan the statute required his spouse be notified of the decision. Section 1448(a). This section also made an election not to participate in the plan if not revoked before date on which the member first became entitled to retired pay. 4 Major Ramon Passaro, appellee's husband, from the United States on November 1, 1968. He elected to participate in the RSFPP, choosing instead to retirement pay. Those who, like Major Passaro, had retired before the SBP became law were however, left out altogether. While was provided in 1455(3)(a) that the SBP applies "to any person initially entitled retired or pay or after the effective date of this Act," it was further provided in section 1455(3)(b) that "[a]ny person who is entitled to retired or retainer pay the effective of this Act may elect to in the Survivor Benefit Plan ... before the first anniversary of that 5 The Department of the Army contacted all service members who had previously retired and explained them the benefits and procedures provided the Survivor Benefit Plan. was on several occasions. A bulletin first sent out describing the SBP. The bulletin was followed by a and then a which included a form, which when filled out and returned would extend the benefits of the SBP to those who were already retired. A "final notice" provided a "box" check postal card indicating the retiree's intention. Major Passaro received these communications and affirmatively elected not to in the SBP by checking the box indicating his intention. He signed and dated card on September 4, 1973, which was the time limit for a binding answer. 6 Four after Passaro's death, his widow survivor benefits and was by the Army that her husband had elected to receive his full retirement pay rather than to provide her with a survivor's annuity through reduced retirement pay. Her successful suit in the Claims Court and this appeal by the followed. II The Claims Court agreed with Mrs. Passaro that the requirement that the spouse be notified of a nonelection of SBP benefits applies to service members who retired both and the effective date of the 1972 The court, thus, assuming jurisdiction of a claim money damages believed to be due, to fashion an remedy for Mrs. Passaro by deeming her late husband to be a member of the SBP. We think that the court its and misread the statute. 8 The Claims Court reached its judgment by writing into the Act a notice requirement it does not have. Congress knew to say whether a spouse should be notified of a nonelection survivor benefits by the member. Section required notification but section 1455(3)(a) specified that it applied to "any person who initially becomes entitled to retired retainer pay on or after the effective date of this Act." In other words, section 1448(a) applies a member is automatically enrolled in the SBP because he retires on or after the effective date of the Act, September 21, 1972. Section 1448(a) in pertinent part: 9 (a) The to a person who is married or has a child when he becomes entitled to retired or retainer pay unless he elects not participate in the Plan before the first day for he is eligible for that pay. If a person who is married elects to participate in the Plan at the maximum level, that person's spouse shall be of the decision. 10 Thus, only a service member automatically enrolled by the could make an election not to the day for which he is eligible for or retainer pay. Those entitled to pay before September 21, 1972, were permitted by Congress to elect to participate rather not to participate. The notice provision, therefore, does not apply to service who is already entitled retired or retainer pay. No principle of statutory construction permits such a notice provision to be implied where it was excluded by Congress. 11 Our views with the administrative interpretation made and consistently applied in the 13 years since enactment of the SBA in 1972. Importantly, it agrees also with the of Congress which has amended the SBP five times and has never seen fit to the interpretation given to the spousal notice provisions to pre-SBP This is persuasive evidence to support our interpretation of congressional intent in the matter. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 12 Claims has given weight tangential remarks of two congressmen to support its interpretation of We have carefully examined the legislative history the statements alluded to and reach a contrary conclusion from the court below. There is no support for concluding that Congress meant to treat alike, for spousal notice purposes, those who retired both before and after enactment of the SBP. There no statement in hearings and congressional reports on this legislation suggesting that the United States would be liable to suit in with respect a claim by widow a pre-SBP whose husband failed enroll in the plan. Pertinent language of other committee members the and Senate Reports clearly differentiate between the pre-SBP retiree, and the service member to retire, on the points about notice and election in and election out of the plan. Respectfully, the Claims Court has misread the record and the statute itself. hold that the administrative interpretation has both reasonable and correct. The court taken a less view of the claim by inquiring the administrative interpretation of the law was reasonable rather than whether it was the interpretation the court would have III 13 The judgment was premised which did not exist. It was that the Tucker Act, 28 U.S.C. Sec. 1491 (1982), provided the jurisdiction here and reliance was placed on the holding Barber v. United States, 676 F.2d 230 Ct.Cl. 287 (1982). That case does not help Mrs. Passaro. In Barber, the claimant was the widow of a service member who, unlike Mrs. Passaro's husband, retired after the enactment of the SBP and, was automatically enrolled in the plan. Sergeant Barber elected out of the on the eve of his retirement and no notice was given to his spouse as required by the statute. The Court of Claims held that Mrs. Barber thus had a Tucker Act claim for due under substantive right created by the SBA statute, as by legislative history. Here, however, only an affirmative decision by Major to participate in the plan would a vested interest in his widow upon his death. and legal situations the two cases are obviously Absent a presently due money claim, therefore,	774 f.2d 456 helEN PASSArO, IndIVidUaLly AND AS EXecutRIx oF tHE eStateoF RAmON PaSsARo, APpEllee,V.ThE UNIteD staTES, AppEllanT. apPeAl nO. 85-927. uNitED STATEs cOurt oF appeALs,FedErAL cIrCUIt. Sept. 25, 1985. RIChaRd F. sIlbEr, cOmMercial liTiGATiON braNch, dePT. Of JuSTICE, WaSHiNgtOn, D.c., aRGUed, For ApPeLLanT. WiTh HiM oN brIEf wEre riChaRd K. WiLlARD, aCTing aSST. ATtY. gEN., dAvID M. cohen, dIrEcTOr, anD SAndra P. SpOOneR. mAjOR tHomaS G. bowe, Major EMMett L. BAttLEs, ofFiCe Of The judge aDVOCaTE GEn., DepT. OF tHe aRMY, waShINgtON, d.c., of COUnseL. RObERT T. SEIWelL, MEdia, PA., ARGUed, FOR appellee. BEFoRe DavIS, BEnNETT, aNd bisSELl, circuit JuDGes. bEnneTT, ciRcUit juDGE. 1 tHE govERnMENT APpeALs a JUdGMENt enteReD against It oN OCtobEr 23, 1984, BY The UnITEd STateS ClaIms CouRt foLlOwINg iTS OpiNIoNs In pASsaRo V. UNITED stATeS, 4 cl.ct. 395 (1984), AnD 5 cL.CT. 754 (1984). THE juDGMeNT aWARdeD The WidOw of a mIlItArY REtirEe AN ACCrued AnnUity AnD fuTuRe bEnEfiTS UnDer the Armed FoRCeS SURViVoR beNeFit PlAn, Pub.l. nO. 92-425, 86 sTaT. 706-713 (1972).1 The aPpEal pRESeNts NaRROw BuT signIFICaNT iSsueS Of ClaiMs COUrt JUrisdicTIOn AND stATUtoRy INTerpRETATION. WE VaCAte And RemaNd.i 2 ThE sUrVIvor BEnEFIT PlAN (sbP) WAS eNActed on sEPTeMBeR 21, 1972, To estaBliSh A New sYStEm of BeNEFITs for ThE surVIVoRS OF mILITary rEtIrEes, ReplAciNG tHe retirED ServIceMaN's faMIlY ProteCtIoN PLAn (RsFpp). THe lAtTEr, A selF-fINancING PrOGRaM perMIttiNg a sERvice mEmbER TO provIDe A PERcEnTAGE OF hIS reTIrED paY AS aN ANnUiTY For hIS SurVIVOrS, HaD ProvEd iNadeQuAte, BEiNg INvoKEd By only 15 PerCENT Of tHE EligIBle milItArY PeRsONneL. 3 THE Sbp eMpLOYeD a nEW CoNcepT WhIcH mAdE AutOmATIc The rIGhTS OF sURvIvORS of MiLItaRY MeMbErs wHO ReTIRed oN or AFTEr SePtEmBER 21, 1972, UnlEss tHE meMBER aFfIRmAtIVeLY cHOSe nOt TO PaRTIciPATe iN tHe pLan. if THE MEMBer ELeCTED Not TO PArTIcIpaTe In thE PLan tHe stAtutE reQuIred THat his SpOuse bE noTIfied of tHe DeCIsION. sEctIOn 1448(a). thIS sECTIon aLSO mADe aN elecTION NOT to PArtICiPaTE In thE PLan iRreVoCAbLE if not ReVokEd Before THe DATe ON whicH ThE MembEr fIRST BeCamE ENTiTlEd to rEtiReD PAy. 4 mAJoR RaMON PAssARO, aPpELlEE'S hUSBANd, retirED fRoM the UNItED STAtes aRMy on nOvemBer 1, 1968. hE eLected nOT TO pARTICiPATe In THe rsFpp, chooSINg InsteAd to receiVe FULL RetiREMENT pAY. tHOSe whO, LikE MaJOR PAsSaRo, HAd ReTired Before tHE sBp bECAme Law werE not, HOwEVer, Left OUT altoGEther. whIlE IT Was prOviDED iN SecTION 1455(3)(A) THAt The sBP aPPlIeS "To aNY perSon Who INiTiALly becoMeS eNTITLeD To REtired OR RETaiNer Pay On OR AFteR tHE eFfeCTivE dATe of ThIS AcT," iT WAs furtheR pROVIdED IN sECtIon 1455(3)(b) tHAt "[a]ny PerSon Who iS ENTitLed to REtirEd oR RETaINeR pAy On tHE effECTiVe DaTE Of thIS aCT maY ELeCT tO PArTICipaTe IN The SuRVivOr beneFIt PlAn ... BEFOrE THE fIRsT aNniVeRsaRy oF ThAT date." 5 tHe DEPArtmenT oF tHE armY cOntACTeD All SeRViCE MEmBERS WHo hAd PrEvIOusLy retIRed And ExPLaiNED to ThEm the bENEFIts And PROCEduRES pROVIDED by the SURvIvOR BEnEfit Plan. thIs WAs DoNE oN SeverAl OcCASiONs. A bUllEtin wAs fIrsT SENT OUT DesCrIbiNG tHe Sbp. tHe BuLLeTiN WAS follOwed By A CIRCuLaR aND tHeN by A LETTer wHICH iNclUdEd A FoRm, WHIch WHEN fILLED out AND rEtURNEd wOULD ExTeND thE beNEFits oF thE SBP To ThosE WhO wErE AlreaDY ReTiREd. A "FInAl nOTice" prOViDed a "Box" To ChECk ON a PoStal card INdICatInG THe rETIree'S INTEntion. MAJOr PASsArO rECeiVEd tHESE CommunIcaTIONs And AfFirmATIvelY eleCted NOt TO pARtiCIpatE iN THE sBp by checkING ThE BOX InDIcatIng hIs iNTENtIoN. He sigNED anD DATeD the carD on SepteMbeR 4, 1973, wHich WAS wiTHiN ThE thEN-eXisTiNg TImE LimiT FOR A bindInG Answer. 6 fOUr yeaRS AfTeR MajOr PASsARO's deATh, His wIDOW InQUIREd abOuT SurvIVoR beNEfitS AnD was toLd By tHe army that hEr hUsBaND HaD elecTeD to reCeiVE His fulL RETiremENT pay RAtHeR tHAN to pRovIdE Her WITh A sURVIVor's annUITy ThrOUgh REduCEd retireMEnt pay. HeR suCcESsFUL SUIT IN ThE cLaIMS coURt anD THis ApPEaL BY tHE GOveRNmEnT FolLOWED. Ii 7 ThE CLaims court AGREed wItH MrS. paSsAro thAt THe requIremenT ThAt ThE SpouSe be NOtIFIEd of A NONElECTIoN oF sbp bEnEFITs aPPlIES to SErviCE meMbeRS WhO REtIred BoTh BeforE AnD AFTeR tHE EfFEcTivE Date oF thE 1972 AcT. tHE court, THUs, assUMING JuRiSDiction OF a cLAiM fOr moNEy dAmAgeS bElIEvEd tO Be DUE, UndeRtOOK TO FAsHion an EQuITablE rEmedY FoR MRS. pAsSAro BY Deeming her lAte HUSBANd to be A MEMbeR Of ThE sBP. WE tHInK thAt THE coURt eXCeEDeD itS JURiSDICtioN aND miSrEAD THe StAtute. 8 tHE CLAims coUrT ReAChed itS jUdgmEnT by WrItIng IntO THE ACT A noticE REQuIRemENt It DOes Not have. cOnGrEss kNeW HoW To SaY WHEtHeR A SPOUSE shoulD be notIFIEd Of A NonElEcTioN Of sURVivOR BeNEFits BY ThE mILItARY MembER. SEctiON 1448(a) REQuiREd notIFiCATION bUT secTiON 1455(3)(a) speCifIeD That iT ApplIeD to "aNY PersOn whO initIallY BecOMeS enTITlEd TO RETiRed OR RETaINEr PAY on OR AFtER thE effeCTive date OF ThIS acT." in otHer WORDs, SectiON 1448(A) apPlIES To A SERviCE MEmBER who is aUTomatiCAllY eNROlLED IN THe sBP BEcauSe he RetIres oN oR AFTeR tHE EfFeCTIVE Date OF the acT, sePtembER 21, 1972. SectIoN 1448(a) ReaDS In PeRTINENT paRT: 9 (A) THE PLan applies To a persON Who IS MarrieD or haS A DEPeNDEnt CHiLD WheN hE becOMes EnTItlED tO rEtired Or RETAiNer pAy uNlEsS he eLecTS NOT To PArTICIpAte In THe PLan befOrE THE firsT DAy for WhICH He is eLIgibLE For THAt PAy. iF a perSON wHO Is maRRiED EleCTs nOt tO parTicIpate IN the plAn AT the mAxiMUM leVeL, That PERSOn'S spOuse SHall be notiFieD oF The deciSIon. 10 tHuS, oNLY a SERvice MEMBer aUtomATicallY ENROlLeD By the ACT couLD MakE aN eLecTIOn NoT tO partiCipatE BEfOre tHe FirST daY For wHiCH he iS ELIGIBlE FOR REtireD or retAINER pAY. THose enTITLed TO pay BeFOrE SEPteMBER 21, 1972, WERE pErmItTED BY CoNGrESs to elECt To ParTicipatE RATheR tHaN noT tO PARtIcipAtE. tHE nOTIce PrOViSiON, THERefORe, doEs noT APPLy TO A SeRvIcE mEMbEr WhO iS AlrEadY EntitlEd to RetirEd oR REtaiNeR PAy. no priNCIplE of statutory constRuCtiON pERMiTs SuCH a nOtIcE proVISioN to bE IMPlIeD WhErE IT WAS EXcLUded by cOngREss. 11 Our vIeWS CoiNCiDE wItH THE aDMiNIStrATIve iNTerPRETaTioN MADE AND cONsiStEntLy ApPLieD iN tHe 13 yearS siNcE ENACtMEnt of THE SbA iN 1972. ImPOrtanTLY, IT agrEeS ALSo wITh The InTENT Of cONGReSs whiCH HAs aMENdED ThE sBp fiVe TimeS anD Has nEver seEN FIt to aLtER THe InTerPrEtATION giVEn AdMiNIstRATIveLy To ThE SPousaL nOTICE prOVISiONS With ReSPEcT To prE-SBp ReTIrEeS.2 This IS peRSuasIve eViDEnce tO sUppoRt our intERprETaTION oF cOngrEssIonaL iNtenT IN The mattEr. nLRB v. BeLL AEROSPace Co., 416 u.S. 267, 274-75, 94 s.CT. 1757, 1761-62, 40 L.Ed.2d 134 (1974). 12 THE cLaIMS cOUrt haS gIVEn weIGhT TO tanGential rEMArKS of TwO ConGrESSMEn TO SupPORT Its IntERPRetaTIOn oF legISLaTive HiSTORy. wE have CArEFuLLY examIneD THe enTIrE lEgislatIve HIstoRy INcludiNG ThE StateMenTs AllUdED To ANd REACh a COntraRy CONCluSioN from tHE cOURT bELOw. THeRE IS nO SUppORT FoR CONcLudinG tHat cONGreSs mEANT TO trEat alIke, FOr SPouSal nOTIcE PUrPoseS, tHoSE whO rETIRed BOth befOre ANd AfTER eNAcTmEnT of ThE Sbp. thERe is No statEMEnT In thE heARINgs ANd CongresSIOnAl rePOrTs oN THIS leGiSLatiOn SUGGesTiNG THAT the uniTed staTeS wOuLD bE LiaBlE tO Suit In mONEy DaMages wITh REspECt To A CLAiM by a wIdOW of A PRe-sbP REtireE wHose HUSbAnd FaIlEd To EnROll IN ThE plAN. PErTINENt LaNGuaGe OF OtHER coMmittEE mEMbERS AnD tHE House AND SenATe rEpORtS cleArLY DifFeRENtIatE BetWeen tHe PRe-SBP Retiree, aNd The SeRviCe MEMbeR yET tO RETirE, ON tHE pOINts ABOut SPouSaL NoTICe AND elecTion In ANd eLeCTIoN OUt oF tHe PLan. rEspEctFULLY, thE ClaIMS COurT HAS MiSReAD The rEcoRd aND The sTaTuTe ItsElF. We HOLd THAt the ADMINistratIVE InTERprETAtION HAs BeeN bOtH reASonABLE And CoRREcT. THe cOUrT sHouLd haVE taKeN a LEsS ExpansIVE viEw of ThE clAIM By inQUIriNg whethEr ThE aDminiSTRATIvE InteRPrETATION of the laW waS REasONaBLe RaTheR tHAN whEthER It WAS THE InteRPrETATiON thE cOuRT wouLd HAvE desireD. iII 13 THE jUDGMent bELOW WaS prEMIseD On JUrisDICtIon WhIch DiD NOt EXisT. iT wAS hELD THaT tHe tUcker Act, 28 U.S.C. SeC. 1491 (1982), PRoviDED ThE necessARy juRisDiCTiON heRE AND REliANCE waS plaCeD ON the hOlDiNG iN bARBer v. unitED StaTes, 676 F.2D 651, 230 cT.cL. 287 (1982). THaT CASe doeS noT helP MrS. PasSaro. in BarBeR, THe CLaiMaNT waS ThE wiDow OF A SErviCE mEMBER wHO, uNlIkE mRS. pASSaRO'S HUsBAND, RETIrEd AFter thE eNactmEnt OF the sBP anD, THeRefORE, WaS automAtICallY EnRollEd IN the plAn. SErGeANt BArbeR eLECTeD out of ThE Plan on tHe eve oF His reTiReMENt ANd no nOticE WaS GiVeN to hiS sPoUSe AS reQUiREd by the STatUte. THe Court Of CLaims helD ThAT MRS. BaRbER ThUS hAD a TUcKeR acT clAIm for MoneY DUE unDEr A SUbsTAnTIVE RigHt cReaTED By THE Sba STatute, AS CLarIfIED by lEgisLAtIvE HiSToRY. here, hoWever, ONlY AN affirMaTIvE deCiSIon bY MajOr PaSSAro TO paRTicipaTe In the PlAn would CReaTe A veSTEd inTEReSt iN His widow upON his deatH. THe faCtual and lEGal sITUATIONs in thE TWo CASeS Are oBvIOUSLy dIsSiMiLAr. ABSeNt A PREseNtly duE mONey CLaim, THeReFOrE,	774 F.2d 456 HelenPASSARO, Individually andas Executrixof the EstateofRamon Passaro, Appellee,v.The UNITED STATES, Appellant. Appeal No. 85-927. United States Court of Appeals,Federal Circuit. Sept.25, 1985. Richard F. Silber, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellant. With him on briefwere Richard K. Willard, Acting Asst. Atty. Gen.,David M. Cohen, Director, and Sandra P. Spooner. Major Thomas G. Bowe, Major Emmett L. Battles, Office of The Judge Advocate Gen., Dept. of theArmy,Washington, D.C., of counsel. Robert T. Seiwell, Media, Pa.,argued, for appellee. Before DAVIS,BENNETT, and BISSELL, Circuit Judges. BENNETT,Circuit Judge. 1The government appeals ajudgmententered against iton October 23, 1984,by the United States Claims Court following its opinions in Passaro v. United States,4 Cl.Ct. 395 (1984), and 5 Cl.Ct. 754 (1984). The judgment awarded the widowof amilitaryretiree an accrued annuity and future benefits under the Armed Forces Survivor Benefit Plan, Pub.L. No. 92-425, 86 Stat. 706-713 (1972).1 Theappeal presents narrow butsignificantissues of Claims Court jurisdiction and statutory interpretation. We vacate and remand.I 2 The Survivor Benefit Plan (SBP)was enactedon September 21, 1972,to establish a new system ofbenefits for the survivors of military retirees, replacing the Retired Serviceman's FamilyProtection Plan(RSFPP). The latter, a self-financing program permitting a service member to provide a percentage of hisretiredpay as an annuity for his survivors, had proved inadequate, being invoked by only15 percent of the eligible military personnel. 3 The SBP employed a new concept which made automatic the rights of survivors ofmilitary members who retired on or after September 21, 1972, unless the member affirmatively chose not toparticipate in the plan. If the member elected notto participate in the plan the statute requiredthat his spouse be notified of the decision.Section 1448(a). This section alsomade an election not to participate in the plan irrevocable if not revoked before thedate on which the memberfirstbecame entitled to retired pay. 4 Major Ramon Passaro, appellee's husband, retired from the United States Army on November 1, 1968. He elected not toparticipate in the RSFPP, choosing instead to receive full retirement pay. Those who, like Major Passaro, had retired beforethe SBP became law were not, however, left out altogether. While it was provided in section 1455(3)(a) that the SBP applies "to any person who initially becomes entitled to retired or retainer pay on or afterthe effective date of this Act," it was further provided in section 1455(3)(b) that "[a]nyperson who is entitled to retiredor retainer pay on theeffective date of this Act may elect to participatein the Survivor Benefit Plan ...before the first anniversary of that date." 5 The Department of the Army contacted all service members who hadpreviously retired andexplained to them thebenefits and procedures provided bythe Survivor Benefit Plan. Thiswas done onseveral occasions. A bulletin was first sentout describingthe SBP.The bulletin was followedby a circular and then by a letter which included aform, which when filled out and returnedwould extend the benefits of the SBP to those who were already retired. A "final notice" provided a "box" to check on a postal card indicating the retiree's intention. Major Passaro received these communications and affirmatively elected not to participate inthe SBP by checkingthebox indicating his intention. He signed and dated the card onSeptember 4, 1973, which was within the then-existing time limit for a binding answer. 6 Four years after Major Passaro's death, his widow inquired aboutsurvivor benefitsand was told bythe Army that her husband had elected to receive his full retirement pay rather than toprovide her with a survivor's annuity through reduced retirement pay. Her successful suit in the Claims Courtandthis appeal by the government followed. II 7 The Claims Court agreedwith Mrs.Passaro that the requirement that thespouse be notified of a nonelection of SBP benefits applies to service members who retired both before and after theeffective date of the 1972 Act.The court, thus, assuming jurisdiction of a claim formoney damages believedto be due, undertook tofashion an equitable remedy for Mrs.Passaroby deeming herlate husband to be a member of theSBP. We thinkthat the courtexceededits jurisdiction and misread the statute. 8 The ClaimsCourtreachedits judgmentby writing into the Act a notice requirement it does nothave. Congressknew how to say whether a spouse should be notified of anonelection of survivor benefits bythe military member. Section 1448(a)required notification but section1455(3)(a) specified that it applied to "any person who initially becomesentitledto retired orretainer pay on orafter the effective date ofthis Act." Inother words, section 1448(a) applies to a service memberwho is automatically enrolled in the SBP because he retires on or after the effective date of the Act, September 21, 1972. Section 1448(a) reads in pertinent part: 9 (a) The Plan applies toa personwho is married or has a dependent child when hebecomes entitled to retired or retainer pay unless he elects not to participate in the Plan before the first day for whichhe is eligiblefor that pay. If a person who is marriedelects not to participate in the Planat the maximum level, that person's spouse shallbe notified of the decision. 10 Thus,only aservice member automaticallyenrolled by the Act could make an electionnot to participate before the first day for which he is eligible for retired or retainer pay. Those entitled topay beforeSeptember 21, 1972, were permitted by Congress to elect to participate rather thannot to participate. Thenotice provision,therefore, does not apply to a service member whois already entitled to retired or retainer pay. No principle of statutory construction permits such anotice provision to be implied where it wasexcluded by Congress. 11 Our views coincidewith the administrative interpretationmade and consistently applied in the 13 years since enactment of the SBA in 1972. Importantly,it agrees also with the intent of Congress which has amended the SBP five times and has never seen fit to alter the interpretationgiven administratively to the spousal notice provisions with respect to pre-SBPretirees.2 This is persuasive evidence to support our interpretationof congressional intent in thematter. NLRB v.Bell Aerospace Co., 416U.S. 267,274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974). 12 The Claims Court has given weight to tangential remarksof two congressmen to support its interpretation of legislative history. We have carefully examinedthe entirelegislative history including the statements alludedto and reach acontrary conclusion from the court below. There is no support for concluding that Congress meantto treat alike, for spousal notice purposes, those whoretired both before andafter enactment ofthe SBP. There is no statement in the hearings and congressional reports on thislegislation suggestingthat the United States would be liable to suit in money damages with respect toa claim by a widow ofa pre-SBPretiree whose husbandfailed to enroll in theplan. Pertinent language of other committee members and the House and Senate Reports clearly differentiate between the pre-SBP retiree, andthe servicemember yet to retire, on the points about spousal notice and election in and electionout of theplan. Respectfully, theClaims Court has misread the record and the statuteitself. We hold that the administrative interpretation has been both reasonable and correct. The court should have taken a less expansive view of theclaim by inquiring whether the administrative interpretation ofthe law was reasonable rather than whetheritwas theinterpretation the courtwould havedesired.III 13 Thejudgment below was premisedon jurisdiction whichdid not exist. It was heldthatthe Tucker Act, 28 U.S.C. Sec. 1491 (1982), provided the necessary jurisdiction hereand reliance was placed on the holding in Barber v. United States, 676 F.2d651, 230Ct.Cl. 287 (1982).Thatcase does not help Mrs.Passaro. In Barber, the claimant was the widow of a service member who, unlike Mrs. Passaro's husband, retired after the enactment of the SBP and, therefore, was automatically enrolledin the plan. Sergeant Barber electedout of the plan on the eve of his retirement andno notice was given to his spouse as required bythestatute. TheCourtof Claims held thatMrs. Barber thus had aTucker Act claimfor money due under a substantive right created by the SBA statute, asclarified by legislative history. Here, however, onlyan affirmative decision by Major Passaro to participate inthe plan wouldcreate a vestedinterest in his widow upon his death. The factual and legal situationsin the two cases areobviouslydissimilar. Absent a presently due money claim,therefore,	774 F.2d 456 Helen PASSARO, _Individually_ and as Executrix _of_ _the_ _Estateof_ _Ramon_ Passaro, Appellee,v.The UNITED STATES, Appellant. Appeal No. 85-927. United States Court of Appeals,Federal Circuit. Sept. 25, 1985. Richard F. Silber, Commercial Litigation _Branch,_ Dept. _of_ _Justice,_ _Washington,_ D.C., argued, _for_ appellant. _With_ him _on_ brief _were_ Richard K. _Willard,_ Acting Asst. Atty. Gen., David M. Cohen, _Director,_ and Sandra P. _Spooner._ _Major_ Thomas G. _Bowe,_ Major Emmett _L._ _Battles,_ Office of _The_ _Judge_ Advocate Gen., Dept. of the Army, Washington, _D.C.,_ _of_ counsel. _Robert_ _T._ Seiwell, _Media,_ Pa., argued, for appellee. Before DAVIS, BENNETT, _and_ _BISSELL,_ _Circuit_ Judges. BENNETT, _Circuit_ _Judge._ 1 The government appeals _a_ judgment entered against it _on_ _October_ 23, _1984,_ _by_ the United _States_ Claims _Court_ following _its_ opinions in Passaro v. United States, _4_ Cl.Ct. 395 (1984), and 5 _Cl.Ct._ 754 (1984). The judgment awarded the widow _of_ a military _retiree_ an accrued annuity and future _benefits_ under the Armed Forces Survivor Benefit _Plan,_ Pub.L. No. 92-425, 86 Stat. 706-713 (1972).1 The _appeal_ presents narrow _but_ significant _issues_ _of_ Claims _Court_ jurisdiction and statutory interpretation. _We_ _vacate_ and remand.I 2 The Survivor Benefit Plan _(SBP)_ was enacted on September _21,_ 1972, to _establish_ a new system of benefits for the survivors of military retirees, replacing the Retired Serviceman's Family Protection Plan (RSFPP). The latter, a _self-financing_ program permitting a service member to provide a percentage of his _retired_ pay as _an_ annuity for his survivors, had proved inadequate, being invoked by only 15 percent of _the_ eligible military personnel. 3 The SBP employed _a_ _new_ concept which made automatic the _rights_ of survivors _of_ _military_ members who _retired_ _on_ or after September 21, _1972,_ unless the member affirmatively chose not to participate in the plan. _If_ the member elected not to _participate_ in the plan the statute required _that_ _his_ spouse be notified _of_ the decision. Section 1448(a). This section also made an election not to participate in the plan _irrevocable_ if _not_ revoked before the date on _which_ _the_ member first became entitled _to_ _retired_ pay. 4 Major _Ramon_ Passaro, appellee's husband, retired _from_ the United States Army on November 1, 1968. He elected not to participate in _the_ RSFPP, choosing instead _to_ _receive_ _full_ retirement pay. Those who, like _Major_ Passaro, had _retired_ _before_ the SBP became law were not, however, left out altogether. While it was provided in section 1455(3)(a) that the _SBP_ _applies_ "to any _person_ who initially becomes entitled _to_ _retired_ or retainer pay on or after the effective date of this Act," it was further provided in section 1455(3)(b) that "[a]ny person who is entitled to retired or retainer _pay_ on the effective date _of_ _this_ Act _may_ elect to participate _in_ the Survivor Benefit _Plan_ _..._ before the first anniversary of that date." 5 The Department of the Army contacted all service _members_ _who_ _had_ previously retired and explained to them _the_ benefits and procedures provided _by_ the _Survivor_ Benefit Plan. This was done on several _occasions._ A bulletin was _first_ sent out describing the SBP. The bulletin was followed by a circular _and_ then by a letter _which_ included a form, which when filled out and _returned_ would extend the _benefits_ of _the_ SBP to those who were already retired. A "final notice" provided a "box" to check on a postal _card_ _indicating_ the retiree's intention. Major Passaro received _these_ communications and _affirmatively_ _elected_ _not_ to participate in the SBP by checking the box indicating his intention. He signed and dated the card on _September_ 4, _1973,_ which _was_ within the then-existing time limit for _a_ binding answer. 6 Four years after Major Passaro's death, his widow inquired about survivor benefits and was told by the Army that her husband had elected to receive his full retirement pay rather than to _provide_ her with a survivor's _annuity_ through reduced retirement pay. _Her_ successful suit in the Claims Court _and_ this appeal by the government followed. II 7 The Claims _Court_ agreed with Mrs. Passaro that _the_ requirement that the _spouse_ be _notified_ of a nonelection _of_ SBP _benefits_ applies to _service_ members who retired _both_ before and after _the_ effective date of _the_ 1972 Act. The court, thus, assuming jurisdiction _of_ a claim for money _damages_ believed _to_ be due, _undertook_ to fashion an _equitable_ remedy for _Mrs._ Passaro by deeming her _late_ husband to be a _member_ of the SBP. _We_ think that _the_ court exceeded its _jurisdiction_ _and_ misread the _statute._ _8_ The Claims Court reached its judgment by writing _into_ the Act a notice requirement it does not have. Congress _knew_ _how_ to say whether a spouse should be notified of a nonelection of survivor benefits by the military member. Section _1448(a)_ required notification but _section_ 1455(3)(a) specified that _it_ applied to "any person who initially becomes entitled to retired _or_ _retainer_ pay on or after the effective date of this Act." In _other_ words, section 1448(a) applies to _a_ service _member_ _who_ is automatically enrolled in the SBP because he retires on _or_ after _the_ _effective_ date _of_ the Act, September _21,_ 1972. Section _1448(a)_ _reads_ in pertinent part: 9 (a) The Plan _applies_ to a person who is married or has _a_ dependent child when he becomes entitled to retired or retainer pay unless _he_ elects not to participate _in_ the Plan before the first day for which _he_ _is_ eligible for that pay. If a person who _is_ _married_ elects not to participate in the Plan at _the_ maximum level, that person's spouse shall _be_ notified of the decision. _10_ Thus, only _a_ service _member_ automatically enrolled _by_ _the_ Act _could_ make an election not to participate before the first day for which he is _eligible_ for retired or retainer pay. Those _entitled_ to _pay_ _before_ September 21, 1972, were _permitted_ by Congress to elect to participate _rather_ than not _to_ participate. The notice _provision,_ therefore, does not apply _to_ a service member who is already _entitled_ to retired or retainer pay. No principle of statutory _construction_ permits _such_ a _notice_ provision to _be_ implied _where_ it was excluded by Congress. _11_ Our views coincide with the administrative interpretation _made_ and consistently applied in the 13 years since enactment of the _SBA_ in 1972. Importantly, it agrees also _with_ the _intent_ of _Congress_ which has amended _the_ SBP five times and has never seen fit _to_ alter _the_ interpretation given _administratively_ to _the_ spousal notice provisions with respect _to_ pre-SBP _retirees.2_ This is persuasive evidence to _support_ our interpretation of congressional intent in the matter. NLRB v. _Bell_ Aerospace Co., 416 U.S. 267, 274-75, _94_ S.Ct. 1757, 1761-62, 40 _L.Ed.2d_ 134 (1974). 12 The _Claims_ Court has given _weight_ to _tangential_ remarks of two congressmen to support its interpretation of legislative history. _We_ have carefully examined the entire legislative history including _the_ statements alluded to and reach a _contrary_ conclusion from the court below. There _is_ no support for _concluding_ that Congress _meant_ _to_ treat alike, for spousal notice _purposes,_ _those_ who retired both before and after enactment of the SBP. There is no statement in the _hearings_ and _congressional_ _reports_ on this legislation suggesting that _the_ United States would _be_ liable to suit _in_ money _damages_ with respect _to_ a claim _by_ a widow of _a_ pre-SBP retiree whose husband _failed_ to enroll in the plan. _Pertinent_ language of other committee members _and_ the _House_ _and_ Senate Reports clearly differentiate between _the_ pre-SBP retiree, and the service member yet to retire, on the points about _spousal_ notice _and_ election in _and_ election out of the plan. Respectfully, the Claims Court has misread the record and the statute itself. We hold that the administrative interpretation _has_ been both reasonable and correct. The _court_ should have taken a less expansive _view_ of the claim by inquiring _whether_ the administrative interpretation of the law was reasonable rather _than_ whether _it_ _was_ the interpretation the court would have desired. _III_ 13 The judgment below was premised on jurisdiction which did not exist. It was held that the Tucker Act, _28_ _U.S.C._ Sec. 1491 (1982), provided the _necessary_ jurisdiction here and reliance was _placed_ on the holding in Barber _v._ United States, 676 _F.2d_ 651, 230 Ct.Cl. 287 (1982). That case does _not_ help Mrs. Passaro. In Barber, the claimant _was_ the widow of a service member who, unlike _Mrs._ Passaro's husband, retired after the enactment of the SBP _and,_ therefore, was automatically _enrolled_ in the plan. _Sergeant_ Barber _elected_ out of the plan on the eve of his retirement and _no_ _notice_ was given to his _spouse_ as required by _the_ statute. The _Court_ _of_ Claims held _that_ _Mrs._ Barber thus had a Tucker _Act_ _claim_ for money _due_ under _a_ substantive right created by the SBA _statute,_ _as_ clarified by _legislative_ _history._ Here, however, only an affirmative decision by Major Passaro to participate in _the_ plan would create a vested interest in his _widow_ upon his death. The factual _and_ legal _situations_ in the two cases _are_ obviously dissimilar. Absent a presently due money claim, therefore,

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.